CPI(M) Leader Tarigami Moves Supreme Court Challenging MHA Order Allowing Outsiders To Buy Land In Jammu & Kashmir

The Application has been moved in the Writ Petition which has sought for declaration of the changes made to Article 370 of the Constitution of India and the transformation of the State of Jammu and Kashmir into two Union Territories as unconstitutional, void and inoperative.

The Application states that the MHA issued the notification viz. Union Territory of Jammu andKashmir Reorganisation (Adaptation of State Laws) Fifth Order, 2020, on 26thOctober in pursuance of powers under Section 96 of the J&K Reorganisation Act. 

Submitting that the Instrument of Accession empowers the Central Government to prefer orders relating to defence, external affairs, communications and other ancillary matters, the Application states that "matter relating to land use, transfer thereof and the broader matters relating to revenue etc. were well within the powers of the state till the Presidential Orders dated. 05.08.2019 and the passing of the Jammu and Kashmir (Reorganisation of State) Act, 2019.

It has therefore been contended that the notification of MHA is illegal as it has been issued in pursuance to powers accorded to the Central Government under a statute which itself is "unconstitutional, void and unsustainable and therefore liable to be struck down…".

Further, owing to the special historical circumstances, the Application states that several constitutional provisions existed to safeguard the distinctive rights and identity of the region's permanent and local residents, such as the J&K Alienation of Land Act, J&K Big Landed Estates Abolition Act, J&K Common Lands (Regulation) Act, J&K Land Grants Act and J&K Agrarian Reforms Act.

While the notification dated 26^th October has effectively led to the repeal of a few aforementioned statutes, it has also allowed for grant of land to non-permanent residents and, has also shifted the power of approving the change of land use and utilization of village commons from elected representative to the District Collector.

Further, the amendments will also allow any non-resident to buy agricultural land and to use it for commercial purpose with the permission of the Government, while the erstwhile law had been aimed at protecting the large swathes of farm land, that provided lifeblood to people of J&K, from commercialization.

In light of the above, the Application concludes that "If the decommissioning or deoperationalising of the Articles 370 and 35A are unconstitutional, it is submitted that the amendments and changes sought to be made vide notification dated 26.10.2020 are also unconstitutional as the Central Government derives power…from Section 96 of the J&K Reorganisation Act that was enacted subsequent to the issuance of Presidential Orders dated 05.08.2019 and 06.08.2019 whereby Articles 370 and 35A were decommissioned".

Therefore, the Application seeks for a stay on the 26^th October notification till the disposal of the Writ Petition.