On 26 October, the Modi government notified several changes to laws in the Union Territory of Jammu and Kashmir, using powers granted to the Centre under the Jammu and Kashmir Reorganisation Act 2019.
The headline amendments essentially allow outsiders to buy land in J&K, by repealing laws and legal provisions of the erstwhile state, that restricted ownership of land in J&K to ‘permanent residents’.
The removal of restrictions on outsiders buying land in J&K was long touted by supporters of the Modi government’s move to end the former state’s special status. Governor Manoj Sinha has talked up the implications of the move for industries, while BJP leaders like Sambit Patra have gleefully announced on social media that anybody can purchase land in J&K now.
The fascination of a large section of the public with purchasing land in J&K is a whole other story in itself, with people and politicians from J&K concerned that this is tied to desires to change the demographic composition of the region, given that J&K was the only Muslim-majority state in all of India.
It is interesting, however, that there is little similar fascination with other states which have restrictions – in one way or another – on outsiders purchasing land.
It should be noted that this is not only about states which are granted some sort of special status under Article 371 or Articles 371A-J of the Constitution – not all those states have been given express rights to restrict transfers of land in any case. Nor is it about restrictions on buying agricultural land, which exist in several states given ‘agriculture’ is a State subject under the Constitution.
The restrictions on outsiders purchasing land in these states are actually about recognising the needs of various regions and the people inhabiting them, and setting restrictions in law as decided by their elected assemblies, and in accordance with their representatives. Something that has now been taken away from the people of Jammu and Kashmir.
WHAT CHANGES HAVE BEEN MADE IN J&K?
Article 35A of the Constitution, repealed as a result of the abrogation of Article 370 back in August 2019, had allowed the former state to define who would be considered a permanent resident of the state, and create special provisions for them.
The repeal of old laws and modification of others means that there are no restrictions on purchasing urban or non-agricultural land in the Union Territory by outsiders, industrial development zones can now be set up in the region without the involvement of permanent residents, and contract farming can be conducted on agricultural land.
The modified J&K Land Revenue Act continues to restrict purchase of agricultural land by someone who is not an ‘agriculturist’. The term agriculturist is as of now restricted to someone who personally conducts farming in J&K, but the modifications do allow the Centre to notify other categories of people to be granted rights to buy agricultural land in the future as well. Furthermore, conversion of agricultural land to non-agricultural land can now be done with the permission of the District Collector – this used to earlier require permission of the Revenue Minister.
The changes made to the J&K laws do not apply to the Union Territory of Ladakh.
OTHER STATES WHERE ‘OUTSIDERS’ ARE RESTRICTED FROM BUYING LAND
Here are some of the other restrictions on outsiders’ purchase of land in other states and regions:
Perhaps the most well-known state with restrictions on purchase of land by outsiders. Purchase of land whether in rural or urban areas is generally restricted to ‘bona fide residents’ of the state, ie those have resided there for 20 years or more (non-Himachali women married to a bona fide resident are an exception to this rule).
Most of the land in the state outside of designated municipal areas is all considered to be agricultural land (even where not being used for this purpose), which puts it out of the reach of even such bona fide residents unless they are agriculturists, thanks to Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act.
However, if there is an existing built-up structure on that land, then a non-agriculturist resident of the state can purchase 500 sqm for residential or up to 300 sqm for commercial purposes with permission from the state’s Revenue Department.
There are certain exceptions to the bona fide resident rule. An outsider can apply to the government for the ability to purchase non-agricultural land for which the cabinet can grant approval. Outsiders can also purchase land from the HP Urban Development Authority without permissions.
Over the years, exceptions for certain kinds of industrial projects such as hydro power projects have also been created, for which an investor looking to purchase land can get permission from the state government.
Under Article 371F of the Constitution, Sikkim was allowed to retain laws which existed prior to its joining with India. The state has retained restrictions on sale of land and property to outsiders.
Only Sikkimese residents can purchase property except in some designated municipal areas, and this is even further restricted in tribal areas, where only members of tribal communities from the region can purchase land.
Some exceptions have also now been created for outsiders to buy land in the state to set up industrial units.
Article 371A of the Constitution states that the Centre cannot pass any laws for Nagaland in respect of ownership and transfer of land. This ability to exclusively determine who can and cannot purchase land has seen the Nagaland government create laws restricting the purchase of land to anyone other than the “indigenous inhabitants” of Nagaland.
This restricts any outsider from purchasing land in the state (and technically, any non-indigenous resident as well), though in recent years some amount of land has been acquired by outsiders as a result of loan/security defaults, which has led to opposition in the state.
Sixth Schedule Regions in Assam, Meghalaya, Tripura, Mizoram & Darjeeling (West Bengal)
The Sixth Schedule to the Constitution allows for the creation of autonomous councils in tribal areas of these states in the north east, which have imposed restrictions on outsiders to buy land.
Mizoram also has rights under Article 371G to restrict ownership and transfer of land in non-tribal areas, which is at the discretion of the Mizoram Legislative Assembly.
Arunachal Pradesh does not derive its restrictions on land ownership from a special provision in the Constitution, but has longstanding customary rules on ownership of land which have traditionally not been interfered with by the state government, let alone the Centre.
Under these customary rules, technically no individual could even have rights over property in the state whether residents or non-residents. Individual property rights of indigenous people were finally adopted in a 2018 law. Outsiders and non-tribal residents, however, cannot own property in the state at this time.
Tribal Land in Jharkhand, Odisha, Andhra Pradesh & Telangana, Madhya Pradesh and Chhattisgarh
All these states also have their own legislations which prohibit sale of tribal land to non-tribals, whether outsiders or residents of the states.