“It is very unfair that people from outside of Himachal Pradesh cannot buy land in the state” is something that most people resent and being a Himachali I have always faced this criticism. Most of them do not know that even Himachalis, who are not agriculturists, cannot buy agricultural land in the state. I understand this sentiment as it comes from a place that we are one country and every citizen of the country has freedom to buy land and live wherever one wishes to. If a citizen of this country decides to live in Himachal Pradesh, it would be a violation of fundamental rights enshrined in the Constitution of India if there was no freedom to buy land. This sounds very logical at the face of it.
Interestingly, the current government in Himachal Pradesh also looks at this restriction contained in Section 118 of the Himachal Pradesh Land Tenancy and Reforms Act 1972, in a somewhat similar manner. They view this rule as an impediment in the state’s onward march on the path of development. This section not only restricts sale but also gift, exchange, lease, or mortgage of agricultural land to those who are not bona fide agriculturists from Himachal Pradesh but creates some exceptions where the same can be bought with permission from the government in this regard. I got an opportunity to know a little bit more about the government’s point of view regarding this restrictive provision when I was called to be a part of the sub-group on ‘Section 118 & FCA intervention’ in the state, which was the result of the Samridh Himachal-2045 colloquium series. This ambitious endeavour, initiated by the Manmohan Singh Himachal Pradesh Institute of Public Administration (MSHIPA), aims to create a long-term vision for economic self-reliance of the state. During the course of deliberations of the sub-group, the government officials spoke essentially about three things. The first being about a stringent provision in Section 118 regarding the land vesting in the government free of any encumbrances after five years in total, if the land is not used within this time, for the purpose for which the permission is granted. The second issue flagged was that if a person has sought permission under Section 118 following due process of law and has established industry/business and for some reason has to exit, he or she should be allowed to transfer the permissions to a third party for the same purpose and on exactly the same terms and conditions as he/she was subject to. As per law, this can only be done with the prior approval of the state. The third issue pertained to a person/entity who is a non-agriculturist, non-Himachali and has taken permission under Section 118 to make a housing complex. Then, before selling the individual houses/apartments in this complex, there should not be any need for seeking permission again.
The Government of Himachal Pradesh is very keen on streamlining and making the process of seeking permission under this section more user friendly, efficient and faster apparently to make land available for industrial development. The need for land for development purposes is perfectly valid but by pursuing this, to my mind, the state government would be working on cross purposes with itself as it has been making consistent efforts for years to bring more land under productive, sustainable and protected cultivation. The government has, over the years, launched schemes to address various challenges related to input costs, water scarcity, infrastructure development and wildlife menace. They have been trying to promote specific high value crops and natural farming methods to get more land under cultivation.
In order to understand this situation better two issues need addressing, the first being how such a restrictive law can be constitutionally valid, and the second being the need for having a law like this even if it is valid. The answer to the first lies in the Constitution’s first amendment in 1951, which apart from other changes, added the Ninth Schedule to the Indian Constitution. This was to safeguard agrarian and land reform laws, as these were frequently being struck down by courts for infringing upon the Fundamental Right to Property (which was a fundamental right at the time). Article 31B was added by this amendment, which specifically shields the laws listed in the Ninth Schedule from being declared void or unconstitutional on the grounds of inconsistency with any of the Fundamental Rights mentioned in Part III of the Constitution. Himachal Pradesh Tenancy and Land Reforms Act, 1972 along with Himachal Pradesh Ceiling on Land Holdings Act, 1972 were passed by the state immediately after attaining full statehood in 1971 and were put in the Ninth Schedule, thus beyond the scope of judicial challenge. Himachal Pradesh Ceiling on Land Holdings Act, 1972 was added to the Ninth Schedule as Entry 73 in 1974 by the Constitution (Thirty-fourth Amendment) Act, 1974, while Himachal Pradesh Tenancy and Land Reforms Act, 1972 was put in the Ninth Schedule at Entry No. 138 by the Constitution (40th Amendment) Act, 1976 on May 27, 1976. Both these laws collectively improved the lot of tillers in the state by making them the owners of the land they were tilling as tenants and many marginalised and landless farmers got land of their own to till when surplus land was taken away from landlords and zamindars and vested in to these people. The tenancy law consolidated the previous enactments on the subject and exhaustively regulated the relationship between a landowner and his occupancy as well as non-occupancy tenants. This law put land in the hands of tillers and also brought uniformity in all areas which now fell under the state of Himachal Pradesh. The state came in to being on April 15, 1948, by merging 30 small princely hill states and four Punjab hill states (Mandi, Chamba, Suket, and Bushahr) as a Chief commissioner’s province. It then became a Part C state and another Part C state, Bilaspur, was merged in to it in 1952. In the year 1966, the hills areas of Punjab were also merged into Himachal Pradesh. There were different laws prevalent in these parts which needed to be subsumed in one uniform law. The land ceiling law redistributed surplus agricultural land in the state which was concentrated in the hands of a few landlords, among landless agricultural labourers and marginalised communities. These laws resulted in more equitable distribution of land suitable for agriculture and related activities in the state, which was necessary for its socio-economic development.
This law and the restrictive provision in Section 118 therefore is constitutionally valid, notwithstanding the heartburn that people from outside of the state or even non-agriculturists within the state feel due to their inability to buy agricultural land in the state.
The second issue of why the state needed this kind of a protective provision is easy to understand when we see how scarce agricultural land is in the state, which is largely agrarian. The total area of the state is 55,673 sq km. Of this, only 6,150 square kilometres are cultivable, which makes it about 11.04 per cent of the total area. Even after these reforms were implemented, land holding of the farmers in the state is very small. Approximately 88.86 per cent of farmers in the state are classified as small and marginal farmers of which marginal farmers (less than 1 hectare) make up 71.41 per cent of total holdings. Roughly 70 per cent of the people in the state are directly dependent upon agriculture. This provision was enacted to safeguard the state’s natural resources—in this case land and in turn water—for the benefit of the state’s small and marginal farmers and to protect them from exploitation.
In Ajay Dabra V Pyare Ram and others 2023, Hon’ble Supreme Court stated that the whole purpose of Section 118 of the Act is to protect agriculturists with small holdings. The purpose of this provision is to save small agricultural holdings of poor persons and also to check rampant conversion of agricultural land for non-agricultural purposes. The government can examine from case-to-case basis whether permission of such purchase and transfer can be granted or not.
The High Court of Himachal Pradesh in Ashok Madan and Another V State of HP and other in CMPMO No. 101 of 2004, categorically stated that the purpose behind enactment of Section 118 was that the economically advantageous class (from within or outside of the state) does not take undue advantage of the small agriculturists by purchasing their small holdings. The provision was introduced as rich persons, who were not agriculturists, were purchasing agricultural land in Himachal Pradesh at high price, exploiting the local Himachali people.
In light of this discussion, the reasons given by the government as stated above for bringing about changes in the provisions of Section 118 to make the process of seeking permission to buy agricultural land in the state faster and more efficient doesn’t look very convincing. It is beyond reasonable comprehension as to why five years is not enough time for a potential investor to get started. This revert back of land to the state sounds fair to the interests of the state though to make this time period a little longer, provided there is a very good reason for the delay, should not cause any harm. On the second point, I am reminded of Chesterton’s Fence principle. This principle argues against the hasty abolition of existing laws, institutions, or traditions without first understanding the rationale behind their creation. The core idea is that seemingly pointless systems or rules often exist for a good, even if not immediately obvious, reason. Removing them without this understanding risks unintended and potentially negative consequences. No one in the meeting of the sub-group knew why this provision existed but wanted it scrapped. The third concern sounds legitimate and if it is so, it needs rectification.
To be fair, the government of the state is well within its right to be wanting to make land available for development. Non-availability of land for development in Himachal Pradesh is primarily due to an anomalous situation as a consequences of a notification issued on February 25, 1952 by the then Chief Commissioner of the state ( the state was Chief commissioner’s province at that time) to combat rampant forest destruction prevalent at that time in the state. This notification declared all land owned by the government or where the government had proprietary rights but not assessed to revenue, as protected forest, using powers under the Indian Forest Act 1927. The rights of the people on these lands were not settled and a final notification after survey and settlement of rights was the right course of action for the state, which did not happen. Because of this notification even today, about 66 per cent of the land in the state is technically forest whereas the actual forest in the state is only about 23-24 per cent of the land ( varies according to sources). Every time any part of land which is forest as per 1952 notification is needed for a development project, central government permission under the Forest Conservation Act is needed. Instead of compromising scarce agricultural land in the state and making its farmers vulnerable the state needs to approach Hon’ble Supreme Court, since the matter regarding forests is sub-judice. The state needs to get its forest and revenue settlement implemented, if the same has been done and get the land which is not actually forest out of the purview of this notification.
This would open up a lot of land and would also help protect the scant and precious agricultural land in the state.
Archana Vaidya, Natural Resource Management & Environment Law Consultant
Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth