Need to reach out to bonafide Himachalis

Rakesh Lohumi from Shimla

The abrogation of Articles 370 and 35 A in Jammu and Kashmir has brought the Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act 1972 into sharp focus. The provision is considered more draconian as it debars even the bona fide Himachalis, who do not own agricultural land in the state, from purchasing land without prior permission of the government. The majority of them have been living in Himachal even before it became a state and they have been virtually reduced to second-class citizens by this discriminatory law.With the Citizenship Amendment Act, the illegal migrants from the neighbouring countries will also be granted citizenship but the non-agriculturists Himachalis will continue to remain second grade citizens with no right to purchase land in their own state.

There has been simmering discontent among the people, particularly non-agriculturist Himachalis as unscrupulous politicians transformed Section118 intoa convenient instrument to oblige outsiders. They opened the floodgates for outsiders making a mockery of the law even as bonafide Himachalis, who genuinely needed land for construction of houses and business purposes, continued to be denied their constitutional right. The lush green hills turned intoveritable concrete jungles due to indiscriminate grant of permissions to outsiders.

Worse, no action has been taken against those influential persons who acquired land in the state under Section 118 but did not utilise it for the purpose for which permission was granted within the stipulated time period. As per the law if the land is not utilised within 3 years and land acquired excess of the requirement will be will be vested in government.

However, government has not even bothered to obtain the utilisation certificates or conduct audit to ascertain implementation of the projects. Instead, influential builders and industrialists are now exerting pressure on the government to allow change of land use or grant permission to sell the excess land.

Demand for scrapping the unfair provision has been gaining ground in the state for the past quite some time but it echoed at national level this time with President of Shiromani Akali Dal (SAD), Sukhbir Badal raising the issue. He said Section 118 of Himachal was discriminatory in nature and must be abolished forthwith. “Every Indian has the right to buy land and set up a business or industrial units in Punjab, however, we cannot do so in Himachal Pradesh and several other states. This is grossly unfair and denies a level-playing field within the country,” he observed.

The statement gained added significance as it came from the head of SAD, an alliance partner of the BJP. Kashmiri Pandit migrants living in Himachal also pitched in and raised demand for scrapping of Section 118so that they can purchase land here. They maintain that it was more stringent than the Article 370 and 35 A, which the Narendra Modi government has scrapped. The BJP has been asserting that Article 370 was an impediment in development of Jammu and Kashmir, the same holds true for Section 118 in Himachal.

The Chakkar area on the outskirts of Shimla

HP Congress Chief Kuldeep Rathore The opposition Congress reacted on expected lines and opposed any move to scrap the provision inserted to safeguard the interests of farmers. State Congress President, Kuldeep Rathore maintained that it was absolutely unfair and illogical to compare Article 370 with Section 118 of Tenancy and Land Reform Act as in a hill state like Himachal, land is a scarce and it had to be preserved, as majority of the people were dependent for livelihood on agriculture.
However, in reality the provision, specifically meant to protect small land holdings of hill farmers, has been brazenly abused by successive governments to facilitate diversion of agriculture land. The Section hurts both the agriculturists and the nonagriculturists. The farmers have limited option of selling their land only to agriculturists within the state and as such they do not get the true value of the land.

Similarly, non-agriculturists Himachalis, who need land for building a house or setting up business, cannot buy it from farmers directly without prior permission for which they have to go through a cumbersome procedure. It only serves the vested interests of politicians who have the power to grant permission. Precisely for this reason both Congress and BJP, which have been ruling the state in turns for the past 34 years, are reluctant to amend the clause to provide relief to non-agriculturist Himachalis.

Lush green hills tuning into oncrete jungles Intriguingly, the two parties are too willing to bend the law for builders, industrialists and other influential outsiders but not for nonagriculturists of the state. While in power Congress and BJP are keen to relax the provision for outsiders and justify it on the ground that it was impeding development.
However, as opposition the two parties change stance, cry foul at any move to ease restriction on sale and purchase of land and accuse the government of promoting land mafia and flouting the law to oblige outsiders.
In fact, in all the Assembly elections, shady land deals and misuse of Section 118 have been the top issue with both Congress and the BJP have been accusing each other of putting “Himachal on sale”. Not only that they also set up inquiry commissions to probe shady land deals pertaining to each other’s tenure in office.
The Judicial commission headed by Justice D.P.Sood to probe shady land deals made several recommendations to help prevent diversion of precious agriculture land and limit the scope for corruption in land deals.
The commission advised government to impose a moratorium of 10 years to check frequent sale and purchase of commercial land. It pointed out instances where certain persons had purchased land in bulk and later sold it to industrialists within a period of six months to three years. The commission also recommended that the “resale” and “change of land use” should not be allowed in case of land purchased under Section 118. Resale of land purchased for commercial purpose after special permission should be allowed only in ‘rarest of rare’ cases. If the land was not used for the purpose then it should be taken over by the government as provided under the law.

Vice President of the state BJP Ganesh Dutt agrees that the provision is discriminatory, while the objective of safeguarding the interests of farmers is fine; the non-agriculturists residing in the state before the law was enacted, should not have been debarred from buying land. The government should look into the issue and find a solution whenever an amendment is made to the Act.”

Himachal BJP Vice President Ganesh Dut The permissions granted to private universities are a glaring example of abuse of Section 118 to allow outsiders to acquire land in bulk. Out of the total 17 private universities, 10 have been set up in Solan district, which accounts for just 9 per cent of the state’s population. In fact, three universities have come up in one panchayat. No uniform norms were observed for granting permission to acquire land. As a result Arni University in Kangra district was allowed 624 bigha, while Sai University, Palampur, managed with only 52 bighas.
Similarly, indiscriminate permissions were granted to builders to raise apartments. The property dealers have little role in the state, instead a nexus of panchayat functionaries, big landlords and politicians has been facilitating most of the land deals.
It is hardly surprising that over the past over 26 years over 75,000 hectare of farmland, almost 15 per cent of the total cultivable land, has been diverted to non-agriculture use. The available published data from the annual season and crop report reveals that the net sown area has declined from 5,82,797 hectare in 1990-91 to 5,50,000 hectare in 2014-15.
The cultivable fallow land increased from 60,068 hectare to 70,661 hectare over the period. The number of landless farmers has been swelling and size of land holdings getting reduced further, with average coming down to 1 hectare. The marginal farmers with average holding of just 0.4 hectare account for 70 per cent and small farmers (1.4 hectare) another 20 per cent.

The people whose right to acquire land in their home state was usurped have not been able to get justice as the Tenancy and Land Reforms Act was included in the 9th schedule and cannot be challenged in Courts. Nevertheless, in September 2016 a division bench of the State High Court, comprising Justice Rajiv Sharma and Justice S. Thakur, directed the state to amend rules under Section 118 within 90 days, so that people living in HP can purchase land in this hill state. However, the government moved the Supreme Court against the Judgement.

According to legal experts, the injustice to bonafide nonagriculturists Himachalis living in the state before Section 118 came in to force can be undone by amending the definition of agriculturist. All that is required is to settle the issue once and for all is to include “allbonafide and permanent residents” living in the state at the time of enforcement of Act in 1972 in the definition of agriculturist.

In the past many amendments have been made in the name of providing relief to non-agriculturists Himachalis but in reality these have been misused to allow outsiders to acquire land in the state.

Vice President of the state BJP Ganesh Dutt agrees that the provision is discriminatory, while the objective of safeguarding the interests of farmers is fine; the non-agriculturists residing in the state before the law was enacted, should not have been debarred from buying land. The government should look into the issue and find a solution whenever an amendment is made to the Act.”

The Section allows the transfer of land to landless labourers, landless persons belonging to Scheduled Castes and Scheduled Tribes, village artisans and a few others sections who do not have resources to buy land but leaves non-agriculturists Himachalis who can afford to acquire land , high and dry.

A former Information Commissioner Kali Dass Batish points out that many non-agriculturists lost their right to acquire land were earlier residents of Punjab before reorganisation of the state. The government should find a way out to restore the right of the bonafide nonagriculturist Himachalies, living in the state before the law came into force in 1972, to purchase and sell land like agriculturists.