By weaponising existing ambiguities in the law, the government order to grant proprietary rights to PAK Displaced Persons and West Pakistan Refugees completely wipes out the stakes of the evacuee owners.
Latief U Zaman Deva
SRINAGAR , AUGUST ,30 :
The Jammu and Kashmir Union Territory Government recently issued an order for grant of proprietary rights to the Pakistan-administered-Kashmir (PAK) Displaced Persons (DPs) and West Pakistan Refugees (WPRs) on evacuee land allotted to them or under their occupation, subject to the fulfillment of prescribed conditions.
The DPs are those who migrated from PAK to J&K in the wake of the partition or thereafter due to civil disturbances or fear thereof, and were therefore State subjects (later on rechristened as Permanent Residents of the State). This category includes refugees of the 1965 and 1971 wars between India and Pakistan.
The WPRs are persons who left the territories forming Pakistan excluding PAK and settled in J&K as citizens of India without attaining eligibility for conferment of the status of State subjects.
As a major component of the rehabilitation and settlement policy, evacuee and available state land was allotted to both categories of affectees under orders issued from time to time. The breakup of evacuee land covered under government orders and instructions is in the table herein below:-
*Addle 5000 families settled outside the State
** includes minor component of State land
Note: Land aforementioned in Kanals
Legal framework and implications
Evacuee property includes both immovable and movable properties left behind in India by those who on the eve of partition or thereafter moved or fled to Pakistan to settle therein and conversely mutatis mutandis covers those who shifted from Pakistan to any territory forming India.
Initially, the immovable property was managed by the respective governments in the two countries through government-appointed Custodians but much later, it was transferred to the allottee evacuees for their permanent settlement and rehabilitation after extinguishing the rights of the evacuee owners.
Due to the analogous position in both territories in Jammu and Kashmir the objectives set out in the two Evacuees Administration of Property Acts in the respective regions could be realised.
Before issuance of the government order dated August 16, 2024, the DPs in J&K were granted occupancy tenancy rights under J&K Agrarian Reforms Act 1978 on evacuee land allotted to them which are heritable and transferable through recognised modes of transfers.
In the event of its acquisition under law, they were entitled to 99% of the amount of compensation assessed. The Custodian is entitled to remaining 1% to retain the nominal character of the land as “evacuee” for coalescing the stakes of interested persons and their progeny residing in PAK and elsewhere.
The new development, however, shall effectively wipe out the stakes of the Evacuees and terminate for good their emotional linkages with the erstwhile state. Out of a total 14.92 Lakh kanals of evacuee land, 8.60 Lakh kanals would attract the provisions of the recent government order.
Likely, shortly this rule will also be extended to 4.72 & 1.60 lakh kanals of evacuee land under the nomenclature of “local allottees” and “Unauthorized occupants/ WPRs”, Who haven’t been paying even rent/ fee to the Custodian for use of the land during last over seven decades.
Questionable “transfer of land”
The government as absolute owner of State land is entitled to choose the nature and mode of its transfer in ownership rights subject to conditions applicable to such a policy decision based on laws in force.
The evacuee law hasn’t vested in the State the through a legislative process the power to extinguish the ownership rights and other proprietary-related rights or encumbrances of the evacuee owners. In fact, the Government is statutorily bound to protect, preserve, promote, and manage the property through Custodians for better returns to be credited against the appropriate Account Heads of the evacuee right holders under The Jammu and Kashmir State Evacuees’ (Administration of Property) Act, 1949.
This Act is based on the Central Act incorporating requisite modifications to comport with the envisioned autonomous character of the State, rights of evacuees to return for resettlement after No Objection Certificate (NOC) by the Central Government and policy pronouncements of the ruling party about the union-state constitutional relationship.
Surprisingly power to exempt any (evacuee) property under Section 37 from the operation of this Act hasn’t been dropped altogether, which seems to have skipped the attention of the roving eye of Mirza M Afzal Beigh, the Revenue Minister (1948 to August 9, 1953), an adroit legal luminary, or of a bureaucratic swing at the behest of invisible characters monitoring working of the State administration.
Another fuzzy feature of this Act is the bodily lifting provision of clause (O) of sub-section 2 of Section 10 from the Central Act and incorporation thereof as clause (I) of sub-section 2 of Section 9 in the State Act which enables “transfer, in any manner whatsoever any evacuee property notwithstanding anything contained in any law or agreement to the contrary relating there to” with the caveat mandating the Custodian “not to sell or transfer any property Were of the Evacuee except with the previous approval of the Custodian General”.
By Act XXXII of 1974, the words “sell or transfer any property” were inserted and the Government substituted by a Custodian General during the regime of Syed Mir Qasim, a humanist, straightforward and a champion of mainstreaming Plebiscite Front, with Mubarak Shah as Revenue Minister, who was a long time associate of Sheikh Mohammed Abdullah and owed his induction into the Cabinet to the legendary leader.
The Government Order granting ownership rights to allottees of Evacuee land (DPs & WPRs) is based on the above mentioned provision of State Law, a window wittingly or unwittingly provided during 1974 but wrongly invoked in the present case.
All transfers of land, other than State-owned, without considerations, are void unless it is a case of gift, relinquishment by a co-owner, partition, or for charitable purposes. In the absence of any act undertaken by the State resulting in the extinguishment of the ownership rights of evacuee on land or on other immovable property, the latter’s status can’t be compromised unless consideration is fixed in exchange for transfer of ownership rights.
Political dimensions
Under the J&K Reorganisation Act 2019, 24 seats for PAK in the J&K Legislative Assembly stand reserved in conformity with the national policy treating these regions as de-jure inalienable parts of Jammu and Kashmir. The de-facto control and possession thereof lay with neither Maharaja Hari Singh on October 26, 1947, at the time of signing the Instrument of Accession, nor thereafter with J&K State/ Union of India till cease-fire line established on January 1, 1949, followed by its conversion into the Line of Actual Control under Shimla Agreement entered into between India and Pakistan on July 2, 1972.
In the official map of the Union Territory of Ladakh, Gilgit-Baltistan is included which amounts to rejection of the said region’s distinct geographical, linguistic, and historical separate identity as factually these regions have never been at any point in history constituent units of Ladakh.
Out of the 80 Lakh population, based on Pakistan Economic Survey 2024 (44 in Muzaffarabad- Poonch-Mirpur track, 21 in Gilgit Baltistan and 15 across Pakistan) 2 million people have stakes directly or indirectly in the evacuee property situated in Jammu and Kashmir. The status of evacuee property in the two territories controlled by Pakistan hasn’t changed much to the disadvantage of DPs of 1947, 1965 & 1971 except for use by allottees displaced from J&K as owners sans right to alienate and transfer.
The Parliamentary Resolution, passed unanimously by both Houses of the Indian Parliament on February 22, 1994, demanded that Pakistan vacate the parts of Jammu and Kashmir under its occupation. This resolution is often quoted but rarely acted upon. The lack of concrete action to honour this resolution is evident in recent developments, such as the termination of property rights for evacuees from these occupied areas.
The rhetoric surrounding the resolution appears to have diminished, possibly due to the realization of the practical implications of potentially adding eight million people to the population of the Union Territories of Jammu and Kashmir and Ladakh.
(Courtesy Daily Kashmir Times)
The author is IAS (Retd) & former Chairperson of J&K PSC.