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A Study on Restrictions to Buy Land in Himachal Pradesh

"There is only one fundamental method of improving village life namely, the introduction of a system of peasant proprietorship under which the tiller of the soil is himself the owner of it and pays revenues direct to the government without the intervention of any zamindar or talukdar".......Vishal Banga

Land Reforms in the State of Himachal Pradesh:

The birth of the state of Himachal Pradesh is of recent origin. Himachal Pradesh was formed on 15th April, 1948 as Part C State by the merger of 30 princely states. On 25th Jan., 1971 Statehood was granted to Himachal Pradesh under the Himachal Pradesh State Act, 1970 (Act No. 53 of 1970) with 55,673sq2 km area and became 18th state of India.23 According to Census 2011, Himachal Pradesh has 6,864,602 populations out of which around 89.97 percent live in villages of rural areas.24 Himachal Pradesh is one of the eleven Special Category States. This status is granted to it due to its hilly and difficult terrain, low population density, non- viable nature of state finances etc.

The nature of land tenure of the princely states of Himachal Pradesh may broadly be categorised as semi-feudalistic coupled with Begar and Beth. Under the land revenue settlements made by the Britishers, the ruler was recorded as the malik-i-ala (superior owner of the land) and the actual tillers as malik-i-adna (inferior owner of the land). The ruler further asserted his rights of over lordship as malik-i-ala by extracting forced labour called begar from the peasants. 'Begar' is a Persian word and in its broadest sense means the unpaid exploitation. piece of land free of obligations in rent or revenue.26 Under the princely states, the agrarian structure, by and large, was dominated by different types of land systems viz.

  • Bhaichara Tenure: In major part of the state, bhaichara tenure prevailed. In such a system land was held in severalty in which one's customary share once existed, but had now disappeared. The total revenue which a land holder paid became the sole measure of the right and liability.
  • Pattadari Tenure: Contrary to bhaichara, in pattadari tenure, land was divided and held in severalty by the different proprietors, according to ancestral or other customary shares of the revenue while all were jointly responsible in the event of any one shareholder being unable to fulfill his obligations to the Government. In pattadari tenure, the share regulated the revenue payable, whereas in bhaichara tenure the revenue payable regulated the share.
  • Bethu System: The Bethu System of serfdom was prevalent in most of the erstwhile Shimla Hill States. Bethu was the hereditary tiller of the state's land from times immemorial; he cultivated a portion for his subsistence and the remaining portion he cultivated on behalf of the raja who received the profits. In addition he had some additional responsibilities for carrying loads.
  • Zamindari System: Before implementation of land reforms in Kangra district the harsh truth was that there were 701 zamindari estates, 2900 pattadari and remaining land was under bhaichara tenure. In keeping pace with the recommendations of the First Five-Year Plan, Himachal Pradesh government, like in other states of India, enacted a number of legislations at different times to give effect to land reforms. In order to bring about uniformity in tenancy laws in the state and to check the arbitrary ejection of tenants the Punjab Tenancy Act, 1887 was made applicable to the state by Himachal Pradesh (Application of Laws) Order, 1948. Later in 1951, the Punjab Tenants Security of Tenure Act, 1950 was extended to Himachal Pradesh.
 These two legislations proved ineffective in checking the ejection of tenants and to provide security of tenure to the tenants. Another problem was that after the merger of new areas in Himachal Pradesh, there was no uniformity in the land ceiling laws. In fact at the time of re-organization, the following three enactments pertaining to ceiling were applicable in the state:
  1. The Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953
  2. The Patiala East Punjab States Union (PEPSU) Tenancy and Agricultural Act, 1955
  3. The Punjab Security of Land Tenure Act, 1953

The Himachal Pradesh Abolition of the Big Landed Estates and Land Reforms Act, 1953 was passed on 17th June, 1953 under the title (in Hindi) Bari Zamindari Unmoolan Thata Bhoomi Vyavastha Adhiniyam, 1953. Later on in 1952, the Punjab Tenancy (Himachal Pradesh) Amendment Act, 1952 and The Himachal Pradesh Tenants (Rights and Restoration) Acts were enacted. The main objective of these Acts was to provide relief to peasants in general and Scheduled Castes and Scheduled Tribes, (who formed 26 per cent of total population) in particular.

The recommendations of the Land Reforms Committees of 1949 and 1969 set up by the Congress formed the basis of the two laws enacted in 1953 and 1972. Indian National Congress appointed Agrarian Reform's Committee under chairmanship of J.C. Kumarappa which submitted its report in July, 1949 and recommended for abolition of intermediaries, tenancy reforms, imposing ceiling on agricultural land, consolidation of holdings and updating land records.

Therefore, as a first step to protect the interest of the tenants in these areas, the Vidhan Sabha passed the Himachal Pradesh (Transferred Territory) Tenants (Protection of Rights) Act, 1968. The Act remained in force till 1971, when the Himachal Pradesh (Transferred Territory) Tenants (Protection of Rights) Act, 1971 was passed which put total ban on ejectment of the tenant till the Himachal Pradesh Tenancy and Land Reforms Act, 1972 was passed by the Vidhan Sabha. By 1959, it was realised that agrarian legislation, to cover restrictions on the size of land holdings, needed to be passed in the states, thus came up Himachal Pradesh Ceiling on Land Holdings Act, 1972 and Himachal Pradesh Village Common Land Utilization Act, 1974.

Section 118 of the HP Tenancy and Land Reforms Act: There are a number of misconceptions attached to Section 118 of the HP Tenancy and Land Reforms Act. There's no ban on purchase of land in the hill state, there are strict restrictions.

Section 118 does not put an absolute ban on the sale and purchase of land and property in Himachal. It restricts the transfer of land to a person who is not an agriculturalist of the state, including even the non-agriculturalists of the state. Section 118, however, has provisions through which, with the approval of the government, one can buy both land and property in the state.

Permissions Required:
There's no permission required to buy/lease a built-up property in the area falling within a municipal corporation, municipal committee,notified area committee and cantonment boards. One can also buy land/plot in the urban areas from the Himachal Pradesh Housing and Urban Development Authority and other government agencies. Again, no permission is required here either.

But what about buying land outside municipal limits, all of which is designated as agricultural land in the Act? "Section 118 doesn't prohibit but regulates the sale of agricultural land. A non-agriculturalist needs to apply, state the purpose for which he wants to buy the land, and the government takes a decision on his request within a set time-frame," adds the bureaucrat. "People are granted landf or varied purposes, ranging from setting up an industrial unit, educational institution, tourism, etc. Also, people can get up to 4 acreso f land to practise agriculture, and a maximum of 500 square metres for residential purposes."

The permission is granted only if the government is satisfied with the stated purpose behind buying the land and the individual's ability and background to carry out the project. While the bureaucrat claims the permission is generally granted, one needs to take thea ssertion with a pinch of salt.

"Permissions are not denied generally at the secretariat and Cabinet level. But many applications are rejected at the entry-level (DC office), where they are scrutinised for documents and NOCs. It's quite a cumbersome and time-consuming process," says a property dealer who liaises with the authorities on behalf of his clients for permissions under 118. "For commercial projects, permissions are relatively easier. But for residential purposes, the process is more arduous and time-consuming."

Idea behind Section 118:
Come to think of it, a too lenient approval system would defeat the whole purpose behind inserting Section 118 in the HP Tenancy and Land Reforms Act in 1972. The Section was included to avoid the accumulation of land in the hands of a moneyed few, and prevent alienation of agriculturalists from their land. "Section 118 became mandatory for Himachal because there's limited agricultural landb ecause of mountainous terrain, and consequently landholdings, too, are small. Besides, back in 1972, when the clause was inserted,the state's economy was entirely dependent on agriculture and horticulture. In this backdrop, transfer of land to non-agriculturalists would not only have hurt the farmers, but also the economy of the state.

Even today, close to 90 per cent of the state's population lives in villages and is engaged in agriculture and allied activities. Agriculturall and continues to be scarce, and close to 60 per cent of landholding is less than 6 bighas. With no protection, won't these marginalf armers, when in distress, be susceptible to sell their land. For weaker and backward sections, protection is needed. A similar law ensures that no outsider, including the Himachalis, can buy land in the tribal district of Kinnaur.
  • Even as there's general consensus across party lines in the state on the utility and continuity of Section 118, the non-agriculturalist Himachalis do harbour discontent. Section 118 equates them with non-agriculturalists from outside the state, and hence they need to follow the same procedure as any other person from outside the state to buy land.
  • The Section, however, allows the transfer of land to landless labourers, landless persons belonging to Scheduled Castes and Scheduled Tribes, village artisans and a few others. "There should have been a clause in Section 118 to safeguard the interests of landless Himachalis who have been residing here before 1972. Those residing here before the Act was amended should not have been debarred from buying land. It has made several people second class citizens in their own state. It's something people want the government to look into if ever any amendment is made to the Act.
  • Section 118 is necessary:
    • Agricultural land continues to be scarce in Himachal, and close to 60 per cent of landholding is less than 6 bighas. With no protection, won't these marginal farmers, when in distress, be susceptible to sell their land.
  • 118 is regulatory:
    • Section 118 doesn't prohibit but regulates the sale of agricultural land. A non-agriculturalist needs to apply, state the purpose for which he wants to buy the land, and the government takes a decision on his request within a set time-frame.
  • The Section 118 of Himachal Pradesh has suddenly come into focus of regional politics. Section 118 of Himachal land tenancy provides restrictions on buying of agricultural land by non-agriculturists in the state. Only bona fide Himachalis with agricultural background can buy land in the state.
  • However, after the abrogation of Article 370 in Kashmir, the alliance partner of BJP in Punjab, Akali Dal president Sukhbir Badal, said that Section 118 of Himachal is discriminatory in nature and should be abolished. The statement was resented by the leaders in Himachal Pradesh, as they feel all states should make such laws to protect their farmers.
  • The first chief minister of the state Dr Y.S. Parmar has brought about the legislation of Section 118, sensing that the precious land of the state would be very vulnerable to land mafia and wealthy people outside. Though amendments have been made to Section 118 of Tenancy and Land Reform Act to facilitate industrial growth and investment, it is a contentious issue, which is politically volatile.
  • In recent time chief minister Jai Ram Thakur has rolled out the online module of permissions under section 118 of HP Tenancy and Land Reforms Act, 1972 starting from Mandi. This module would go a long way in speedy disposal of section 118 cases. State govt. has not made any changes or amendments to section 118 but was only in favour of making the process a bit simple and transparent. The clearances of section 118 have now been made online so that the people could get it done at the earliest.
Written By: Vishal Banga,
Ph no: 8219411908

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