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In spite of the fact that the Dogra Ruler in 1933 fulfilling “its obligations to its own Muslim subjects” 19 conferred proprietary rights upon the occupancy hereditary cultivators, a good chunk of land still continued to be under the iron grip of Jagirdari & Chakdari systems, and the tenants-at-will of different categories of the landlords continued to be at their mercy. To recall to our minds, jagir villages were not under the survey of two Settlement Officers of the State. The Jagirdars & Muafidars who were predominantly Kashmiri Pandits, other non-Muslim & some Pirzadas & Naqshbandi Muslim families were absolute monarchs of their estates/villages. This feudal position was attributed to the fact that the entire revenue officialdom was in the captivity of Kashmiri Pandits since centuries that enabled them to manipulate & exploit the poor & illiterate Muslim peasantry. 20 According to census of 1941, there was total 22 Lakh Acres = 1. 76 Crore Kanals of cultivable agricultural land in J&K of which 11. 60 Acres was held by the landlords who were mostly feudal vassals. Bulk of this land belonged to the Maharaja himself. The landlords rented the land to peasants under medieval conditions of exploitation. There were, generally speaking, three classes of such economically privileged persons: Jagirdars, Muafidars and Mukarraries. 21 The Jagirdar was a privileged landowner who owned vast area of land, Jagir, or a territory, the law & order of which was his responsibility under armed cavalry of his overlord for whom he was collecting the revenue paid by the tenants while keeping substantial part for himself for his services. 22 The Muafidars who were given by the Darbar land revenue assignments were individuals such as pandits and faqirs, or institutions such as mosques, gurdwars, shrines and temples, who received part of the land revenue. 23 The Mukarrari-chakdars and Chak hunudi were the grantees of huge waste uncultivated land given by the Maharaja Ranbir Singh to Pandits & non-local-non-Muslim (contractors) on easy terms for collection of revenue of the allotments from poor Muslim cultivators. 24 They received cash payments from the State-treasury under various religious and non-religious titles. 25

Before 1947, the hereditary occupancy/mirasas & proprietary rights/malikana haqooq of good number of peasants of Kashmir following afore-discussed land reforms were well established. But as big estates, Jagirs, were weapons of exploitation in the hands of the big landholders, the State passed the Big Landed Estates Abolition Act, 1950 26 that did away with big estates in the hands of landlords. Under this Act, a landlord could under a prescribed ceiling hold maximum 182 Kanals (22. ¾ Acres) of all kinds of land with sites, the rest was transferred to the tillers in possession & where the land was not in cultivation, the same was transferred to the State under the Act. It is said that this enactment abolished 396 Jagirs/Muafis & enabled the State to expropriate 4. 5 lakh Acres of land from the big Jagirdars out of which 2.3 Lakh Acres were directly transferred to the tillers without any compensation free from all prior charges & the remaining 2.2 Lakh Acres were vested in the State. 27 There was an extremely interesting the provision of the said Act for confiscation of the property of “enemy agents” who were largely defined as persons who had expressed a desire for Kashmir to join Pakistan. 28

In 1972, the Government passed the Agrarian Reforms Act which abolished “absentee landlordism” & confirmed the ownership of land among the tillers. However, several objections were raised & some writs filed against this Act in the High Court of J&K. It was contended that under the Act, the ownership of the tiller would get confirmed only after twenty years during which period the tiller was bound to pay rent to the Government that would remit it to the original owner whose ownership rights were terminated under the Act. The Act was challenged also on the ground that its drafting was very loose as, for example, the word “personal cultivation” had given rise to ambiguity & confusion. The Act intends to abolish the rights of an owner who does not cultivate land personally. But a genuine cultivator/owner may have been dispossessed by a trespasser, 29, does it mean that the Act will make him owner. So, this Act was later modified & virtually replaced by the Agrarian Reforms Act, 1976 under which, subject to a ceiling of 12 ½ Acres, the ownership rights in the land were given to the tillers who held it in personal cultivation & consequently, all rights of absentee landlords including intermediaries who were not cultivating the land personally in Kharif 1971 were extinguished. Excess land that was held by a tiller vested in the State that distributed the same among the landless according to the rules appended to the Act. Moreover, even the owners who personally cultivated the land were allowed to do so subject to the ceiling fixed by the Act. 30 The orchards were excluded from the operation of the Act. 31

Process was high-jacked:

Hence, the history of land reforms of J&K has been old. It started with the appointment of two principal Settlement Officers of the State in 1887 & concluded with passing of the Agrarian Reforms Act in 1976. It was a process started during the reign of Maharaja Pratap Singh under the pressure of the British. Reformation of Land Revenue laws of JK was a systematic legal & evolutionary process, not specific to J&K only, but all those princely States where Jagirdari Nizam existed, even before Partition of 1947, they too had taken steps for land reforms. But, owing to general ignorance, illiteracy & abject poverty of common Kashmiri masses & absence of any media in J&K, the then  leadership hijacked this entire systematic legal development with respect to then-existing social, political & economic conditions of the State. That time political leadership took over the administration of the State after 1947 and used the process of land reforms as a part of its political agenda under the dominant influence of Communist Ideology on its minds. 32. New Kashmir Manifesto of 1944 was a part of this communist agenda prepared by well known Communist leader BPL Bedi who was Sheikh Abdullah’s eminence grise.  33 Exactly the same method was applied in Communist Poland, Hungary, Bulgaria, and Yugoslavia. 34. These reforms earned for the National Conference a solid vote-bank-base among 85% of farmers’ population of J&K predominantly Muslims.

Notwithstanding aforestated, there is a group of people who have propounded two theories insofar as land reforms process was concerned & continued by the NC after 1947. 35 These theories are:

(I) It was Sheikh Abdullah’s 1950’s Big Landed Estates Abolition Law that gave rise to “Jammu Communal Agitation of 1953” against him. It is a mere conjecture or bunk. If it were the cause why didn’t Jammu people immediately hit the roads of Jammu against passage of such progressive legislation? Why it took them three years to agitate? In that “Communal Agitation”, nowhere J&K‘s Land Reforms legislation was questioned. Reason was simple. Such law had benefitted thousands of Hindu peasants in Hindu dominated areas of Jammu itself. Under the Act, by 1961, 8 lakh acres of land was transferred to tillers and if, on the one hand, 70900 Muslim peasants of valley became proprietors, at the other end, 25000 poor Hindus became peasant-proprietors. 36. Why would they then have repulsed against emancipation from age old yoke of Jagirdars from their necks? 37 So, historically it is incorrect but used by the NC as a propaganda tool for self-aggrandizement & politicking among Kashmiri masses. To note, agrarian measures had started in all provinces before independence of India but as right to property was a ‘fundamental right’ under Articles 19(1) f read with 31 of the Constitution, the abolition of Jagirdari or Zamindari system or absentee landlordism couldn’t succeed till first amendment was effected to the Constitution whereby this right was brought within the doctrine of Eminent Domain. 38.  This enabled the States to pass their own Zamindari Abolition Acts. 39 By 1956, the entire system of Jagirdari or Zamindari system & absentee landlordism was abolished in all States in India with certain constitutional hiccups still remaining with huge number of cases challenging validity of the State Acts in the Supreme Court. As the Fundamental Rights Part III of the Indian Constitution did not apply to the JK State till the Constitution (Application to Jammu and Kashmir) Order, 1954 extended them to the State w.e.f 14th  May 1954 & as the State’s right of making laws with respect to permanent residents , their property rights & land reforms were already accepted under the Delhi Agreement of July, 1952  40  & several changes were  being contemporinously made to the right to property under Article 19 read with Article 31 by Indian State, 41  the JK State was simply following its earlier programme of land reforms under its own property laws later recognised in Delhi Agreement followed by the Constitution (Application to Jammu and Kashmir) Order, 1954 .  So, land reforms measures were nothing confined to JK only, as wrongly stated. 42

(2) It is propagated that had Sheikh Abdullah joined Pakistan, as another option under the Partition Plan, the feudal system of that Dominion would have hindered his “progressive plan” of land reformation. This theory is again fallacious. Firstly, Pakistan in the same decade followed the Indian law abolishing Jagirdari system in that country but without much desired results on ground. Second, the Hereditary State Subject Laws of Maharaja Hari Singh of 1927 are intact in PAK & Gilgit-Baltistan, 43 and by virtue of Northern Areas Council Legal Framework Order 1974-75 the Jagirdari Nizam was abolished in GB & ownership on those who were in “Lawful” possession of the land was conferred by the “Azad J&K Land Reforms Acts” of 1960, 1961 & 1963 in Pakistani Administered Kashmir too. 44 Third, Sheikh was promised by “visiting delegation” in October 1947 from Pak that J&K shall have full autonomy on all internal matters that included land laws too. And, naturally, he could have easily continued with his “progressive agenda” of New Kashmir of 1944 which included entire J&K, had he opted otherwise even.

M J Aslam is  Author, academic, story-teller & freelance columnist, presently AVP, J&K Bank.

Historical Review of JK Land Reform Laws: (From 1887-1976)………Part I

References:

  1. Letter dated 07-04- 1884 by the GOI, Viceroy of India to the Secretary of State
  2. Kwasi Kwarteng, Ghosts of an Empire, Britian’s Legacies in the World, ( Bloombury Publishing, London-2011—Kindle edition)page 113.
  3. Josef Korbel, Danger in Kashmir (1954- Reprint 2008, City Book Centre, Srinagar) page 208
  4. Prof Mridu Rai , Hindu Rulers , Muslim Subjects (2004) page23, n 16
  5. Imtiaz Hussain Hakeem J, Revenue Manual, Land Laws (2007) vol I, page 198-199
  6. Supra Mridu Rai, pages 151, 156-159
  7. Supra Josef Korbel
  8. Khatimai Chakdari Qanoon
  9. Govt of J&K, Land Reforms Commission (1968) page 10 ; Asra Hamdani’s article : Marginalization of Reforms : A Historical Study of Land Reforms in J&K (1931-1988) published in JASTOR, Vol 44, No 11/12, (Nov-Dec, 2016) pages 37-38; (under sec 25 of this Act, a tiller could not own more than 160 Kanals of land in total))
  10. Supra Josef Korbel, page 209
  11. Ahmad Ghassi v Mohammad Ganai, (1976) KLJ 337
  12. Jagtu v Badri, AIR 1980 J&K 1= 1979 KLJ 172
  13. Manzoor Ahmed Margray v Gulam Hassan Aram, AIR 2000 SC 191 =(1999) 7 SCC 703
  14. Mirza M Afzal Beg, On the Way to Golden Harvests, Government of J&K pages 4-5; supra Josef Korbel, pages 249- 253
  15. Supra Josef Korbel, page 252
  16. Ibid at page 211
  17. See Sheikh Abdullah’s letter dated 10-07-1950 to Nehru quoted in Bilqees Taseer, The Kashmir of Sheikh M Abdullah ( Ferozsons Pvt Ltd, Lahore, 1986) at page 33: “……despite our having so many affinities with Pakistan, we did not join it because we thought our programme would not fit in with their policy”) 
    1. Supra Asra Hamdani at page 38; Govt of J&K, Report on Economic Reforms (1998) page 122; by 85% to 15% ratio of Muslim & non Muslim population of the State, the figures of 70,000 to 25,000 succinctly buttress our contention;

     

    1. “By not paying compensation to the dispossessed absenteee landlords, Kashmir has escaped the financial burden”, Daniel Thorner’s article titled “The Kashmir Land reforms: Some personal impressions” , The economic weekly, 12-09-1953, page 1002, as yet, nonpayment of compensation coupled with then social & economic decline & political uncertainty of the State, led to migration of some Hindu & Pandit landlords to Punjab since they constituted majority of total absentee landlords of the State, Chitralekha Zutshi, Language of Belonging: Islam, Regional Identity, & the Making of Kashmir (Permanent Black, D-28 Oxford Apartments, 11, I.P. Extension, Delhi, 2003) pages 317-318; further, it had done the least for petty tenants and landless labourers , these two were the largest in the State, ibid Daniel Thorner& Chitralekha Zutshi; the abolition of Hindu Dogra Rule (making Hindus apprehensive that the State was going to be soon replaced by democratic government by Muslim majority )agreed in Delhi Agreement of July, 1952 may have disturbed the Hindus , see Jyoti Bhushan Das Gupta, Jammu & Kashmir (the Hague , Nijhoff, Neherlands, 1968) 202-203;

     

    1. Doctrine recognises the inherent power of the State to take privately owned property especially land for public use subject to the compensation for the taking, Black’s Law Dictionary (Thomson West, USA, 8th edition) page562; But as Right to Property was a FR in Article 19 (1) f read with Aericle 31, action of several State governments taking property/land by abolishing Zamindari/Jagirdari was chanllenged in the SC. So, to facilitate the abolition of Zamindari/Jagirdari, 9th Schedule along with Articles 31-A( saving of laws providing for compulsory acquisition of property by State ) & 31-B (validation of certain Acts and Regulations) were inserted in the Constitution by the Constitution (First Amendment ) Act, 1951 that put 13 State Acts taking away land from Zamindars & Jagirdars & distributing it among landless farmers ,beyond challenge before Courts of Law. By the Constitution (Fourth Amendment) Act, 1955 State’s right of compulsory acquisition & requisition of private property was allowed by amending Article 31. Article 31-A was amended by Constitution (7th Amendment) Act, 1964. All these steps were felt necessary to carry out the land reforms in the country in accordance with the socialistic economic philosophy of the State to distribute land among peasants & tenants after taking it away from the landlords & Jagirdars. After a plethora of judgements of the SC in AIR 1952 SC 252, AIR 1958 SC 328 , (1984) 1 (SSC) 515; Bank Nationalisation case (1970) 1 SCC 248 , (1996) 2 SCC 226, (2007) 8 SCC 705 & many others, the Parliament ultimately made the Constitution ( 44th Amendment) Act, 1978 that removed right to property under Articles 19 (1) f & 31 by repealing these provisions, abolishing right to property as a FR & reincarnating it as a statutory/constitutional right only under newly incorporated Article 300-A which states that no person shall be deprived of property except by the authority of law; to note, authority of law was already recognised vide earlier amendments as mentioned;
    2. Ramchandra Guha, India After Gandhi (Picador, 2008) pages 219-220; Ibdi;
    3. Greater Kashmir dated 3-4-2019 [Article 35-A: Myth or Reality] wherein ex-PDP Minister , Haseeb A Drabu has written: “In 1950, when the J&K government initiated ‘land to tiller’, it was not legally possible to do so under the Indian Constitution. Till 1978, Right to Property under Article 19 was a fundamental right. It was only with the 44th amendment that it became a statutory right under Article 300A”. This is factually incorrect statement as land reform laws had been started all over India right after 1947 but as right to property was a FR there were legal hitches that were removed first by Fist Amentment to the Constitution in 1951 followed by a number of amendments till it culminated in abrogation of this right in 1978;
    4. See article “Right to property under the Indian Constitution” published on website of Lawyers Club of India for full details;
    5. For details see First, Second & Third Indian Planning Commission Reports on Land Reforms in India & Murthy & Narayana’s book “Rural Economy of India” (1989);

     

    1. See definition of ‘State Subject’ in section 2(1) of the “Azad J& K Interim Constitution of 1974” & definition of “ citizen” in the Gilgit-Baltistan Empowerment & self Governance Order, 2009, prior to this Order the governance of Northern Areas which came to be renamed as GB vide this Order was done by Presidential Orders from time to time & the State Subjects laws applied to GB similarly as to PAK ; all these arrangements are/have been made despite the fact that the GB people want to be given fifth province status under the Pakistani Constitution( ref Indian Express dated 29-04-2010 “Gilgit-Baltistan: A question of Autonomy by Pallavi Singh[main demand of the people of Gilgit- Baltistan for a constitutional status to the region as a fifth province] but as Pak has “linked GB with the Kashmir Dispute:, it is not conceding to the popular demand of GB presuming that it might “affect” its case on K-Dispute adversely if it grants full-fledged provincial status to GB, but for all practical GB is a federating unit of Pak especially under the present Order of 2009;
    2. Kashmir Life dated 23-07-2010; Greater Kashmir dated 05-09-2017(Guarding the Right) ; See Pak SC decisions dated 28-05-1999 & 17-01-2019, respectively, in Al-Jehad Trust & Civil Aviation Authority cases citing and confirming 1974-75 Order that abolished Jagirdari & absentee landlordism in GB.

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