TRIBALS AND THEIR LANDS:

Legal Issues and Concerns with Special Reference to Madhya Pradesh and Andhra Pradesh

Sanjay Upadhyay1

Land being a state subject2 has been the domain of each state in respect of how it is to be used and how the benefits arising out of the land need to be appropriated or shared. Several legislations although not specific to land have an impact on the use to which finite land resources is put to in a given state context. These legislations have been used to reserve for forests, create sanctuaries or national parks, exploit minerals, to put land for industrial use, protect watersheds, for private purposes such as agriculture, for “public purposes”, use land as common property resources or for specially protecting land in scheduled areas ....the list is endless. In the milieu of these varied uses and competing claims to land use the tribal land has emerged as the most vulnerable, the concept of Vth schedule and VIth schedule3 under the Constitution notwithstanding. The alienation of land, the access to various legal categories of land and nature of claims or rights to these lands and their competing use have emerged as the most contested issues in tribal areas in social , political and legal arena. It is another matter how such claims themselves are interpreted. Claims or rights over any natural resource including lands have always been recognised as individual claims. In fact the concepts of group rights find no mention under the Constitutional framework. Further, the nature of rights themselves has been questioned in many disputes. Often what is deemed rights by communities especially tribal communities may only be recorded as privileges. The legal framework does not really distinguish between rights, concessions, privileges and favours. Only a legal eye distinguishes them. While rights are enforceable, privileges, concessions and favours are not. Infact they are easily revocable. This becomes critical especially in the context of land issues and more in case of tribal lands. Land as a subject has also been contested innumerably in court rooms. Varied interpretations on terms such as what is government land, what is public purpose in terms of land acquisition, what can construe as benefits arising out of land, the manner in which benefits arising out of lands should be shared, what are inalienable lands, what is adequate compensation in terms of land … a number of such issues have been brought before the courts at all levels. It is thus important to understand the issue of tribal lands more closely from the legal stand point so that solutions to land issues could be worked around them in the midst of competing claims. This paper raises certain key legal concerns around tribal lands in two specific state contexts of Madhya Pradesh (MP) and Andhra Pradesh (AP) to illustrate some of the tribal - land related issues that have emerged and which need urgent correction. This is not to say that the states of Madhya Pradesh and Andhra Pradesh are illustrative of the legal situation for the entire country but the states do present two distinct models of land legislations especially with regard to the tribal lands. But before we delve into the details of these legislations and their implications at the state level it would be instructive to lay out the policy and legal mandate on land at a national level.

National Policy and Law Context on Tribals and their Land

The policy context on tribal land is still in a draft form which finds place in the specific provisions of the draft Tribal Policy. However, there are some other policy instruments

such as the National Policy on Resettlement and Rehabilitation of Project Affected Families – 2003, (NPRR) and the National Forest Policy, 1988 (NFP) which throws up important pointers on tribal land concerns. The Draft National Policy on Tribals, while addressing the issues of land restricts itself only to the physical resource with no linkage to any traditional occupation that may be associated with the

1 Advocate, Supreme Court of India and Managing Partner, Enviro Legal Defence Firm, India. Contact su@vsnl.com The Author wishes to thank Apoorva Mishra, Shephali Mehra and Videh Upadhyay who have contributed on the a more comprehensive report submitted to the Overseas Development Institute, London on the subject. 2 Where the State is competent to legislate on the subject matter.3 Vth and VIth Scheduled under the Constitution are designated as special areas for administration in the context of tribal communities.

physical resource. Further, there is no mention of collective rights to land, and the identification of the same in consultation with the tribal populations. However, it directs the States to prohibit transfer of land from tribals to non-tribals and that the land records be displayed and that the tribal people access them. Like the draft tribal policy that advocates ‘land for land’ the NPRR allows for compensation of agricultural land with agricultural land/cultivable wasteland. With respect to the scheduled tribes, it concedes that the Project Affected Family of ST category shall be given preference in allotment of land. The NFP also recognises the symbiotic relationship between the tribal people and the forests, and emphasises the need to protect their customary rights and interests.

With the mandate of finding lasting solution to the vexed problem of tribal land alienation and their consequent indebtedness, various Commissions and Committees were appointed in the past. Some of the legislative and judicial measures suggested were radical and far-reaching. The P.S. APPU Committee in 1972 for example recommended that the land allotted to Tribals should be given on a long-term basis with certain rights of occupation so that they could secure finance for development purposes. The other critical recommendations of the Committee include amending the law of limitation so as to enable scrutiny of land alienation upto three years, debarring the lawyers from appearing in revenue courts in matters pertaining to tribal land alienation and updating the status of land records. The Kaka Kelkar Commission way back in March 1955 observed that there is a need for a proper and comprehensive land policy. As regards distribution of land it emphasized that available government land should first be distributed among the landless and to this end the land revenue rules should be suitably amended. The Commission further recommended abolition of all kinds of intermediary tenures. Similarly, the Dhebar Commission in 1961 emphasized on general prohibition of all transfers whether by sale, mortgage, gift or lease or any other contract or agreement without the previous permission of the Collector or the Deputy Commissioner. As per the Commission the D.C or the Collector should have the power suo-motu or at the instance of aggrieved tribal land holder within a period of twelve years to institute inquiries and restore possession of the land with or without payment of any compensation to the transferee. Such a provision was suggested to be applied retrospectively from 26 January 1950. Interestingly the commission observed that all surrenders must only be to the state which should hold the surrendered land as a trustee for the tribals and should act as a ‘Public trustee’. The Task Force on Development of Tribal Areas (Prof Vidyarthi Committee) 1972 felt that an understanding of the customary rights of the tribal communities in respect of land and pattern of land distribution and organization of such rights is necessary for evolving any program based on land. Provision of free legal aid and requirement of suo motu proceeding by administration was advocated by the S.C Dubey Committee in 1972. Further, the Sivaraman Committee in 1981 gave detailed recommendations on procedural reforms, such as making oral evidence equivalent to documentary evidence in respect to legal proceedings relating to tribal lands by making specific amendments in the India Evidence Act. The Committee advocated bringing in more transparency in the process of issuing loans to the tribals against their lands. The Committee also recommended barring the jurisdiction of the civil courts and limiting the number of appeals. The order for restoration of tribal land must be implemented within a time limit and the nodal responsibility must be of the project administrator and occupation of tribal lands through deceit or use of force should be made a penal offence.

It is clear from the above that the issue of tribal land and their associated problems have been in the minds of the national governments for a long time. However, the complexities around tribal land have remained unresolved especially in the present liberalized economic context. One of the central reasons is the inadequacy in the legal framework in terms of its substantiveness, its clarity and its implications. The Constitution does provide the broad frame to protect tribal interests in the land and property and it would be prudent to highlight some of the provisions which unfortunately have not been translated to its potential in the state context. Thus, for example Article 46 of the Constitution under the Directive Principles of the State Policy, it is mandated that the state shall interalia protect the schedule casts, schedule tribes and other weaker section from social injustice and all form of exploitation. Interpreting this section the Supreme Court has held that a law prohibiting transfer of land belonging to a member of a

schedule tribe to a non-tribal is valid4. The Constitution also provides for the specialised areas of administration – the schedule areas and tribal areas in tribal dominated populations.

One of the most radical enactement in recent times in the context of tribal land is the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (hereinafter PESA also popularly known as Tribal Self Rule Law). The PESA attempts to vest statutory powers to Gram Sabha specifically in areas relating to development planning, management of natural resources and adjudication of disputes in accordance with prevalent traditions and customs. In pursuance of PESA the state legislature are required to ensure that the Panchayats at the appropriate level and/or the Gram Sabha are endowed specifically with powers for management of land resources among other things. What is perhaps most critical in this regard is the manner in which the law has been adapted in the “scheduled states”5. This is because PESA is as good as it is been adapted in these states. PESA is only an umbrella framework under which respective state panchayat Acts have to be amended to incorporate the letter and spirit of PESA. A number of states which have adapted PESA under a statutory time line of one year as mandated in PESA have left a lot of operational issues subject to rule making powers and state prescriptions under their respective amendments. How this impacts the operationalisation of PESA is discussed later.

Land acquistion under PESA- Consultation or Consent

Under PESA, the Gram Sabha or Panchayat at appropriate level is to be consulted before making acquisition of land in scheduled areas for development projects as well as before resettlement or rehabilitation of persons affected by such projects in Scheduled Areas. Note here that the word used is ‘consultation’ and not ‘consent’. In a meeting of ministers6 shortly after the enactment of PESA, it was observed that the word ‘consultation’ should be deemed to mean ‘consent’. 7 More importantly, a single bench of Andhra Pradesh High Court on intervention by a couple of Hyderabad based NGOs has ruled that the word consultation under PESA should mean consent. This judicial interpretation that the requirement under PESA is for consent , meaning therby approval, can be empowering as opposed to the requirment of mere consulation. Although the decision can be over-ruled by a higher court, its legally binding value in the State, and pesuasive value outside the State, cannot be denied. However, some other concerns on the subject remain. For instance, if the Gram Sabha or the Panchayat is consulted and they deny a proposed acquisition, then whether a recourse is available to either the State or to the project proponent is unclear. It is also important that the Bhuria Committee Report – on whose recommendations the central law on PESA came into being - had advocated for prior consent of the Gram Sabha /local village community before making acquisition of land in Scheduled Areas. The use of the word ‘consultation’ under PESA instead of ‘consent’ significantly waters down the power vested with the Panchayat8.

Land Alienation and PESA

In addition, the PESA requires the Panchayats at the appropriate level and the Gram Sabha to be endowed with the powers to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any alienated land of Scheduled Tribe. In this regard it is still unclear, as seen in the manner in which such powers have been delegated at the state level, as to how to deal with the illegal alienation of tribal land and the nature and extent of powers that needs to be vested with the Gram Sabha and the various tiers of the Panchayats to deal with such issues. The three key issues that have emerged in

4 Lingappa vs. State of Maharashtra, AIR 1985 SC 3895 There are 9 scheduled states in Indian namely, Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh Jharkhand, Madhya Pradesh Maharashtra, Orissa and Rajasthan.6 Report of the Committee of State Ministers In charge of Panchayati Raj and Tribal Welfare, meeting held on 8-9-1997 by Ministry of Rural Areas & Employment, Department of Rural Development. 7 However, it should be made clear that such a clarification in a ministerial meeting doesnot entail legal consequences. It cannot be called a judicial – and hence valid – interpretation of the provision.8 The difference between the two words is the difference between ‘right to consultation before acquisition’ and ‘the right to deny the acquisition’.

empowering the Gram Sabha and the appropriate Panchayats in PESA vis a vis land alienation are a) regulating the land transfer from the STs to non tribals b) detecting instances of land unlawfully alienated from STs and c) powers to restore illegally alienated land to the original tribal land owner. The rules under state PESA is required to be formulated to clarify the above issues especially with regard to the delegated powers with the Panchayats. The manner in which the states of M.P. and A.P. have adopted the provisons of PESA on consulataion for land acquistion and on land alienation will illustrsate the complexities and are mentioned later.

With the above overview of the national policy and legal context vis-à-vis tribal lands it is pertinent to assess the legal frame in a state specific context i.e. the State of Madhya Pradesh and the State of Andhra Pradesh to further illustrate and clarify the legal concerns on tribal lands.

State Legal Context on Tribals and Their Land

As stated earlier, the two different states present two different models and contexts in terms of the tribal land situation. It would be instructive here to closely examine the legal mandate and provisions in the State of Madhya Pradesh and Andhra Pradesh. Some specific and significant points emerging from the legal analysis are presented below

Some Legal Issues on Tribal Land in the State of Madhya Pradesh

Land alienation and jurisdictional disputes around especially arising out of the settlement process (both revenue and forest settlement) have emerged as the two critical land disputes in Madhya Pradesh. The former arises out of the ambiguities and the limitations of the Madhya Pradesh Land Revenue Code, 1959 (MPLRC) and related Acts whereas the latter is a far more complicated land issue which has its origin in the settlement process, forest Acts and judicial interpretations especially by the Supreme Court. Let us examine these issues in some detail.

Tribal Land Alienation – The Limitation of Law

As regards tribal lands there are three situations that may arise as regards their alienation. First either, the land belonging to a ST may be alienated. Second there may be land in scheduled area irrespective of ownership within or without ST community that may be alienated and finally there may be lands in scheduled areas of STs which may be alienated. The laws on land in each state deals within each of these situations differently. In Madhya Pradesh the primary legislation on land is the Madhya Pradesh Land Revenue Code, 1959 (MPLRC). As regards the first protection on prevention of land alienation there are special provisions or conditions attached to alienation or transfer of lands of STs irrespective of where they reside in the state9. However, the manner in which it defines the term “transfer” it makes it quite ambiguous. Thus, for example “Lease”, a prevalent mode of transfer, is not prohibited under the Code.

As regards Land alienation in scheduled areas it should ordinarily be covered under PESA as adapted in M.P. However the MP Land Revenue Code (2nd Amendment) Act of 1997 amended the MP Land Revenue Code, 1959 for special provision for land alienation vis-a-vis the Gram Sabha (village assembly) in Scheduled Area. It provides that if a Gram Sabha in a Scheduled Area and any person other than a member of aboriginal tribe is in possession of such land without any lawful authority then such land shall be restored to the tribal person to whom it originally belongs. In case the Gram Sabha fails to restore the possession of such land such matters will be referred to the Sub Divisional Officer (SDO) who has been given a time limit of restoring possession within three months from the date of receipt of reference. This amendment is interesting in many ways. First of all if a non-tribal is in possession of land in Scheduled Area under “lawful authority” it makes his possession legal. However, it is common knowledge that numerous landholders within scheduled areas possess land under power of attorneys or even by way of false marriage and other similar mechanisms which, at the face of it, seems lawful authority! Therefore the words ‘lawful authority’ needs to be explained further under the MP Land Revenue Code. Secondly, the role of the SDO in case of reference by the Gram Sabha takes the entire situation / problem of land 9 See Section 170 A 170B of MPLRC on Land alienation of tribal lands

alienation back to the state agency which itself has been a major source of alienation of land in the past. In such a case the problem goes back to square one.

The third situation is the alienation of ST land in Scheduled Areas where the MPLRC prohibits transfer of a land held by a member of aboriginal tribe by way of sale or otherwise to a person not belonging to such tribe if the land falls in the Schedule V areas, so declared by the State Government 10. If the SDO on an inquiry and after giving reasonable opportunity of hearing to all the parties is satisfied that the transfer of the land belonging to a tribal falling in schedule V area was not bonafide then the SDO can set aside such a transfer and restore the land to the transferor by putting him in possession of the land forthwith11.For transfer of non-agricultural land of a tribal falling in the schedule v areas to a non tribal the Code provides that prior permission has to be sought by the collector and the collector while permitting such transfer has to record reasons for it.

Thus in M.P. it is clear that despite the wide provisions of law on land alienation there are short comings in the law itself which could be the first limitation as far as prevention of land alienation of tribal land is concerned.

The Big Land Conflict in MP: The Orange Areas Dispute

‘Orange Area’ land dispute, arguably the most serious issue with policy and legal implications in the states of M.P. (and Chattisgarh)12, is a result of lack of coordinated functioning amongst the Forest Department and Revenue Department, confusion in understanding of the Zamindari/ Malguzari Abolition Act, 1950 and State Land Revenue Codes and faulty adoption of administrative and political mechanisms, to give effect to the rights of the people especially the tribals. The fate of about ten lacs families who are predominantly tribal people and who eke out a living from the forests, hangs in uncertainty due to the negligence on the part of the States to resolve the contentions on the Orange Areas and its boundaries and jurisdiction. To understand this land conflict clearly it would be instructive to get into the source and thus the history of this conflict. During the pre-independence Settlement- (bandobast) process different types of villages under the different revenue arrangements such as malguzari, zamindari and ryotwari settlement records and record of rights (nistar patraks and wazib-ul urz) were prepared for such lands at the village level. After independence all the Nistar lands previously in the control of the Malguzars and Zamindars were acquired by the Government under the MP. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. After acquisition of these nistar lands the control was handed over to the revenue department. Subsequently, in 1954 the then State Govt. passed orders to the effect that the management of the nistar lands thus acquired should be handed over to the forest department. The MPLRC which is the land law, did not have any mechanism to deal with the transfer of such lands. This resulted in a twofold control over the same land at least de jure: one, the land seen within the control of the forest Department as per the notifications of transfer and two the control over the same lands as dakhal rahit bhoomi (land free from all encumbrances) in the control of the Revenue Department as seen within the provisions of the M.P. Land Revenue Code, 1959. Around the same time amidst this confusion a number of pattas were distributed by the Revenue Department. Note that these were the time when Grow More Food Scheme of the Government of India forest land without tree cover were also given for cultivation. Parallel to this, the FD enacted the M.P. Protected Forest Rules, 1960 under the Indian Forest Act, 1927. Under the said Rules a number of restrictions was imposed regarding the exploitation of Protected Forest ( Note: these cover all the above mentioned forests). Revenue Department’s total silence in the face of the 1960 Rules clearly suggests that it accepted the full control of the Forest Department on the nistar rights. Significantly no changes were made in the records of the lands registered as nistar lands under the RD control thus continuing the old system and the confusion over the status of these lands by Revenue Department . The subsequent survey, demarcation proceedings and mapping in

10 See Section 165 (6) (i) of the Madhya Pradesh Land Revenue Code11 See Section 170-A (2) of the Madhya Pradesh Land Revenue Code12 Erstwhile MP included Chhatisgarh

the early sixties by the forest department did not correct this anomaly. For the purpose of demarcation of protected forest compartments maps were prepared by indicating all the areas that were handed over to the forest department. In the maps the areas that were included in the protected forest compartment were shown in the colour green and the areas that were left outside the protected forest compartments were depicted in the colour orange. Thus the name orange area lands. During the process of settlement the Forest Department and the Revenue Department jointly reviewed the cultivable forest land (including left out Area) and after enquiry prepared reconciliation statements (Samadhan Patrak) However, no changes were made in the records of Revenue Dept. Lands under the Revenue Department recorded as nistar lands, chote jhad ke jungle, bade jhad ke jungle, jungle khurd, jungle janla, sarna, karat, jhudpi jungle, nistar jungles etc and that were taken in control by the forest department and notified as un-demarcated protected forest vide Notification13 continued to be recorded as dakhalrahit bhoom. Survey processes were challenged and although a number of such lands were administratively transferred they were not formally notified. Infact there was no revision of denotification. This resulted in introduction of Section34-A as a denotification provision in the Indian Forest Act, 1927. While the revenue administration continued with leases to people through another legislation namely the Madhya Pradesh Gramo Mein Ki Dakhal Rahit Bhumi (Vishesh Upbandh) Adhiniyam, 1970 relating to allotment and settlement of unoccupied lands under the revenue Department was enacted. Although this excluded those forest lands which were not denotified. In 1976 a cabinet decision to re-examine the orange areas (20.05.1976) was taken which highlighted the discrepancy in survey proceedings and thus distribution in pattas. Despite the above Cabinet decision which sought to clear the confusion, the process of de-notification under section 34 A were not done as required. Subsequently the FCA, 1980 was enacted at the national level which among other things provided to seek permission from the Central Government for use of forest land for non forest purpose.

In 1994 this confusion was officially admitted through another cabinet note it has been admitted by the State that the statistics of the forest department place the forest area as 1,54,505.09 square km; approximately 35% of the total land area. At the same time the Revenue department and Commissioner of land Records claim that the total forest area in the state is 1,42,110.32 square km. This in effect means that the status of an area of 12,394.77 square km (approximately 30,62,871.6 acre) is not clear at the highest level of the Governments of the respective States. Whether this disputed land includes Orange Areas and within it the transferred land to the Revenue Department or whether it includes within it the proposed Section 4 areas of forest lands or whether it excludes the two categories mentioned above is not clear at all. However, the forest department took no notice of this summary and continued with business as usual. In 1996 , in the famous Godavarman case the SC laid emphasis to the dictionary definition of forest thus defining the lands falling within the purview of Forest Conservation Act. On the basis of this Order the forest department has once again started its attempts for regaining lands described as chote, bade jhad ke jungle in the revenue records in the undivided State of Madhya Pradesh several administrative mechanisms. This issue is now before a statutory body, the Centrally Empowered Committee, which looks into the matters arising out of forest conservation act in the Godavarman case. The above detail is not in isolation but is prevalent in various form and degree in several other states. Himachal Pradesh, Jharkhand, Maharashtra to name a few.

The Issues emerging from the State of Andhra Pradesh

In schedule areas of the State (also known as the “Agency Tracts/Areas 14” in AP), the provisions in respect to transfer of land from a ST are very stringent. Here any transfer of land to a non-tribal is prohibited by virtue of AP Scheduled Areas Land Transfer Regulation, 1959, whether that land belongs to a tribal or not. Any transfer of any land in a schedule area can be made only to the member of a schedule

13 No. 9-X-50 dated 10th July 195814 Section 2 (a) of AP Scheduled Areas Land Transfer Regulation, 1959.

tribe or a registered society15, composed only of members of Schedule Tribes16. The Regulation as well as the Rules framed under the Regulation contains enough safeguards to ensure the same. The definition of “transfer’ under the Act is quite broad, it includes mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, excluding testamentary dispositions; it also includes a charge on property or a contract relating to such property in respect of such mortgage, lease, sale, gift, exchange or other dealing17. The AP Scheduled Areas Land Transfer Regulation, 1959 accords protection against benami transactions, which has been identified as one of the major causes of alienation of STs’ land, especially in AP. While the provisions regarding land transfer in Schedule areas is very stringent, such provisions have been relaxed by the State for welfare activities, for instance provision of housing sites to harijans, which has been taken as a public purpose

The Regulation and the Rules framed under contain enough safeguards to ensure the same. However important powers with respect of checking illegal transfers of land are vested with the Agent or the Assistant Agent. This position is apparently inconsistent with the provisions under the Panchayat laws. While the Panchayat Extension to Scheduled Areas Act, 1996, which lays the framework of Panchayati Raj Institutions (PRIs) in Scheduled areas, provides that the Gram Sabha and the Panchayat at Appropriate Level should be empowered to prevent alienation of land in schedule areas and to restore such unlawfully transferred land of STs. The State adoption of this law confers a considerable amount of autonomy on local governance bodies by vesting them with a degree of control over several matters; ranging from ownership of Minor Forest Produce [MFP], control over land acquisition and alienation of land in the Scheduled Areas, to management of village markets. However there is a considerable amount of overlap and conflict between the provisions of the AP PESA and the existing pre-PESA laws on the subject matter mentioned in the PESA. The State adoption of PESA18 provides that the Gram Panchayat or the Gram Sabha shall exercise the function of preventing alienation of land in schedule areas and restoring any unlawfully alienated land of scheduled tribes. However this provision is subject to the prescriptions of the State that will determine the manner of performing and the extent of such functions. Firstly this provision is not in consonance with the Central PESA as the latter provides for vesting this power with the Gram Sabha as well as the PAL and here discretion has been given to the State to empower any one of them. In such circumstances there is no clarity as to who shall perform this function, the gram sabha or the gram panchayat. Further in absence of any rules or guidelines by the State there is no understanding as to how the said provision is to be given effect to. With respect to land acquisition, it has been provided that the Mandal Parishad should be consulted before making any acquisition of land in the Scheduled Areas for developmental projects and before resettling or rehabilitating person evicted by such projects, while the planning and implementation of such projects shall be coordinated at the State Level. Thus the Gram Sabha plays no role whatsoever in this regard. It is submitted here that unless the State puts in place the enabling Rules under AP PESA the conflicting positions under the 1959 Regulation and under PESA cannot be reconciled.

As regards the procedural aspects there is a little discrepancy between the Notified Tribal Areas Rules, 1359-F under AP (TA Areas) Regulation, 1359-F and the S A Land Transfer Regulation 1959. The 1315-F Rules provides that no land which is cultivated by a tribal or in respect to which he claims a right to hold, shall be sold in execution of any decree or order of any Civil or Revenue Court, while the 1959 Rules allows sale of a tribals’ land in execution of a money decree on certain conditions. Further with respect to legal proceedings over tribal lands taking the services of advocates is not the norm; they are obtained with permission only. In any proceedings under the AP Scheduled Areas Land Transfer Regulation, 1959 or AP (TA Areas) Regulation, 1359-F before any authority or officer, none of the parties can be represented by a legal practitioner without the previous written permission of the Agent or the ADO. The AP Scheduled Areas Land Transfer Regulation, 1959 also provides that the provisions of the 15 Registered under AP Co-operative Societies Act 1964. 16 Section 3 (1.a) of AP Scheduled Areas Land Transfer Regulation, 195917 Section 2 (g) of AP Scheduled Areas Land Transfer Regulation, 1959.18 AP Panchayat Raj (Amendment) Act, 1998 (AP PESA).

Indian Limitation Act, 1908 shall also apply to the proceedings under the Regulation, as far as they are consistent with the provisions of the Regulation19. This means that an aggrieved party/person is to move the court for the redressal of his grievance within a certain time period as laid down in the Limitation Act and if that period lapses, s/he loses the right to agitate his grievance. Since the law of limitation is applicable to the proceedings under the AP Scheduled Areas Land Transfer Regulation, 1959, such proceedings can be initiated only within the time period as laid down in the Limitation Act. Thus it is clear from the above that the state of A.P. has adequate safeguards, however, it must be noted that certain procedural inadequacies need to be removed urgently vis-à-vis tribal lands concerns.With a flavour of two states what becomes equally important from the legal perspective is the fact that the Supreme court as well as the other appellate courts have with amazing regularity dealt with tribal land issues and there are significant lessons that need to be drawn from these decisions.

Some Pointers Relating to Tribals and Their Land from Judicial Pronouncements

There has been a significant number of verdicts before the Supreme Court and the High Courts all across the country involving, for example, land and particular livelihood problems of the Tribals including on prohibition of transfer of Tribal lands20

need to provide then alternative land sites 21 and to enable them pursue their vocations for their survival,22 in addition to others that raise critical Constitutional issues. On importance of Land to the Tribal the Apex Court has said “agriculture is the only source of livelihood for the Schedule Tribes, apart from collection and sale of minor forest produce to supplement their income. Land is their most important natural and valuable asset from which the tribals derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source of economic empowerment. Therefore the, tribes too have great emotional attachment to their lands The land that they live and till assures them equality of status and dignity of person and means to economic and social justice and potent weapon of economic empowerment in social democracy”.23

In the historic Samatha judgement24 where the applicability of a State regulation prohibiting transfer of all lands in the Scheduled area to a non-tribal was in question the Apex Court held that the word ‘Person’ in the regulation includes the Government and therefore the prohibition of transfer of the tribal land to a non-tribal person would equally apply to the Government. It was made clear that the competing rights of tribals and the State are required to be adjusted without defeating rights of either. In this context the Court read Right to Development as part of Right to life under art 21 of the Constitution. On the same State Regulation that was in issue in Samata case i.e. the A.P. (Scheduled Areas) Land Transfer Regulation Act 1959 another petition before the Andhra Pradesh High Court contented that no serious attempt has been made by the district administration to identify such lands which are covered by the said regulation and pointed out a situation in which the tribals as a mob has stood up against the non-tribals. 25 The Court felt that the problem should be perceived as a socio economic problem and that the details of the State response showed that the administration was not finding it easy to meet the challenging situation in some areas of the State.26 Accordingly the Court issued directions including requiring that the State should deliver all such lands which are clearly for tribals and tribals only, to them. Again in a well-known case before the Supreme Court the petition contented that the tribals living at the project site of a proposed

19 Rule-7, ibid. 20 Samata v State of AP (1997) 4 Scale 746; B Madhusudan Reddy v State of Andhra Pradesh (1997) 5 ALT 8 (DB).21 Banwasi Sewa Ashram v State of UP (1986) 2 Scale 867; Pradeep D Prabhu v State of Maharashtra.22 Andhra Pradesh Adimajati Seva Sangam v Guntur Municipal Council AIR 1987.23 Samatha v. State of Andhra Pradesh AIR 1997 SC 3297, Para 1024 Samatha v. State of Andhra Pradesh AIR 1997 SC 329725 B Madhusudan Reddy v State of Andhra Pradesh (1997) 5 ALT 8 (DB).

26 There were more affidavits filed with instances of unrest in Tribal areas of the State. See **(1997) 5 ALT 8 (DB).

Thermal power plant were being ousted in violation of their fundamental right to life and they should be given alternative sites27. The Court in a later order asserted that we have to ensure that the rights of the oustees are determined in their respective holdings and that they are properly rehabilitated and adequately compensated.28

In another Public Interest Litigation filed on behalf of land Adivasis occupying various lands in the district of Maharashtra, it was not disputed that that Advasis had encroached upon the land and further that the land under their position is the forestland29. While elaborating upon the procedure to be followed in determining the claims of these tribals the Court added that while determining the right of the Adivasis for regularisation they shall be given a clear opportunity to be heard30. Another important issue which has come up before the Courts quite often is Constitutional validity of laws regulating the transfer of tribal lands. In a case where the provisions prohibiting transfers to non tribals of land granted to the tribals and remedial measures for speedy restoration of such lands to the tribals were challenged, the court dismissed the contention of its arbitrariness. In doing so it clarified that their object is to preserve and protect the economic interests of tribals and to prevent their exploitation as provided under the Constitution of India and “such classification has a clear nexus to the object sought to be achieved” 31. In a later case the court upheld the constitutionality of the provisions enacted essentially in order to secure restoration to the original tribal owners of the lands, which had passed to the non-tribals from them32. A very important point raised in Ram kristo33 case is that the burden of proving the applicability of a particular protective provision is upon the tribal but once it has been proved that the regulation applies, in that situation the burden of proof shifts on the non tribal to prove the legitimacy of the possession of the tribal land

In the landmark Samatha judgement described earlier, the Supreme Court in 1997 interpreted the word ‘Person’ in the regulation as including the Government and therefore the judgment said that the prohibition of transfer of the tribal land to a non-tribal person would equally apply to the Government. The minority decision in Samatha itself indicated the problems with the majority judgment. Justice Patnaik disagreeing with the premise of the majority judges strongly asserted that the state responsibility of development should mean that there should be no prohibition to transfer of tribal lands. Later in a verdict in 2002 the Supreme Court did express reservations again on the Samatha judgment, although it could not overrule it.34 In this case the Apex Court had held that giving of a tribal land by way of lease to a non-tribal was not prohibited under the provisions of the M.P. Land Revenue Code. Here the land was acquired and then given on a lease by the State government to BALCO. The Court deemed it permissible especially as 25 years after the lease and particularly after disinvestment of BALCO in favour of a private company transfer cannot be challenged as violative of the MP Land Revenue Code. In the judgment the following words deserve close notice: “While we have strong reservations with regard to the correctness of the majority decision in the Samatha case, which has not only interpreted the provisions of the ...A.P. Scheduled Areas Land Transfer Regulation, 1959 but has also interpreted the provisions of the fifth Schedule of the Constitution, the said decision is not applicable in the present case because the law applicable in Madhya Pradesh is not similar or identical to the regulation of Andhra Pradesh..” Later the Court clarified that the Samatha case is inapplicable as the statutory provision in Madhya Pradesh does

27 Banwasi Sewa Ashram v State of UP. (1986) 2 Scale 867.28 Banwasi Sewa Ashram v State of UP. AIR 1992 SC 92029 Pradeep D Prabhu v State of Maharashtra.30 There were further interim directions that till the case of Adivasis is finally disposed of they shall not be dispossessed from the lands which were in their possession.

31 Manchegowda v State of Karnatka AIR 1984 SC1151

32 Pochanna Appealwar v State of Maharashtra AIR 1985 SC 38933 Ram krishto Mandal v Dhankristo Mandal AIR 1969 SC 204

34 BALCO Employees Union V. Union of India, AIR 2002 SC 350

not contain any absolute prohibition of the type contained in Section 3(1) of the Andhra Pradesh Regulation, which was he basis of the decision in the Samatha’s case.35

Thus as the law stands today the Samatha judgment continues to hold the field and has not been overruled36, but first the reasoning of the minority judgment in Samatha and later the BALCO judgment casting “strong reservations” on it shows that the Supreme Court of the country seems to divided on the question of prohibition of transfer of tribal land to ‘non tribals’, the latter category including the State. At one level this divide perhaps reflects a larger polarization nationally on the issue.

Tribal Land Alienation: Critical Concerns

A number of national and state laws including in particular, prohibition of transfer of land from tribals to non-tribals has been adequately provided in various Land Revenue Codes and Land Regulations and Acts passed by different states. However, despite this categorical legal imperative, the problem of land alienation of the tribal land continues to persist and, in large areas of the country, it is now endemic . There is a definitive – and even at places, radical- legal mechanism already in place to protect the tribal from being unlawfully dispossessed form his land. The PESA too specifically empowers the Gram Sabha and the Panchayat to “prevent alienation of land in the scheduled areas and to take an appropriate action to restore any unlawfully alienated land of scheduled tribes.” However, recent empirical studies have confirmed that this law has largely remained a paper tiger. Thus, how much of the enabling provisions is being implemented in its letter and spirit remains a moot question. On the other hand the sweeping nature of the various recommendations of the Government appointed commissions also suggests that in addition to the problem of implementation, the questions and concerns of the tribals demand a separate legal framework supported by an alternative premise in jurisprudence. A bulwark against rampant land alienation can be the recognition of communal land rights of the tribals. Again this would require an in-depth and extensive survey leading to the communal rights of the tribals being identified, recognised and respected.

Issues in Land Acquisition and Rehabilitation especially for tribals

There is no comprehensive central law on Rehabilitation and Resettlement of the Tribal People. The absence of the central legislation gets compounded by the fact that the some state legislations enacted for rehabilitation and resettlement suffers from major drawbacks. They are either project specific or their applicability depends on the discretion of the government, which again limits the scope of these acts. The Madhya Pradesh Act, for example, basically revolves around affected persons of irrigation projects and hence has a limited focus. The a national Policy on Resettlement and Rehabilitation of Project Affected Families , 2003 suffers from similar drawbacks apart from the fact that it is only a policy instrument and hence not enforceable.

Further, there are ambiguities under PESA and especially in its provisions requiring that the Gram Sabha or Panchayat at appropriate level shall be consulted before making acquisition of land in scheduled area for development projects as well as before resettlement or rehabilitation of persons affected by such projects in Scheduled Areas. A review of these provisions as adopted by State of Madhya Pradesh and Andhra Pradesh points specifically to the nature of these ambiguities in law. For example, The M.P. Panchayati Raj Avam Gram Swaraj Adhiniyam provides that the Gram Sabha will have the power to manage natural resources including land in Schedule Areas. This power needs to be made more explicit and with specific reference to land alienation and land acquisition as provided in the Central PESA. So long as provisions like these are not clarified and appropriate amendments are not made effective legal empowerment of Panchayats on consultation before land acquisition and for rehabilitation will remain elusive.

35 BALCO Employees Union V. Union of India, AIR 2002 SC 350 at Pg.37736 An intervention Application in a civil appeal No 4601 of 1997 sought for modification of the said Judgment but was dismissed on March 6, 2000 by a three judge bench of the Supreme Court

Land Rights of Tribals in Forest Areas: Emerging Issues

Since the traditional rights of the tribals were not settled when the areas were being brought under the relevant forest acts, they remain encroachers in the eyes of the law. At the same time there have been inter-departmental disputes regarding the pattas, leases, and grants on forest lands because the status of these lands is under dispute, thereby affecting the rights of the people, including the tribals, who are in possession of these lands. Also note here that since the tribal economy primarily depends on the forest (especially on minor forest produce) the increasing alienation of the rights of the tribal people over forest resources has resulted in severely undermining the economic security of the tribal people.

The prime legislations on forests and wildlife are the Indian Forest Act 1927 (IFA) as applicable in different states,37 the Forest Conservation Act, 1980 and the Wildlife Protection Act, 1972. The IFA regulates both duty on and access to forest produce and the rights of tribals are only partially addressed in the settlement of rights process of declaring Reserve Forests where certain rights, privileges or concessions are recorded in favour of forest dwelling community.38 The Wildlife Protection Act of 1972 as the name suggests is primarily targeted to protect wild animals and wildlife. The process of declaring national parks and sanctuaries necessarily extinguishes all rights in case of national parks and restricts most rights in sanctuaries through the process of settlement of rights39. It is alleged that till date more than six lakh people have been evicted most of them are tribals and many will have to lose their homes unless the government and the Supreme Court consider this problem on a priority basis 40.

In order to resolve these issues that has been adversely affecting the well being of the forest dwellers and the tribal people, the Ministry of Environment and Forests (MoEF) issued two important circulars- amongst a set of six - in 1990. Circular No.13-1/90-F.P. (2) and (3), dated 18.09.90, focuses on the settlement of such disputes and the regularisation of tribal rights. However, in February 2004, more than a decade after the issuance of the two circulars, the MoEF has noted that no proposals, for the same, have been received, and this has ‘deprived the tribals of natural justice.’

If these circulars issued by the Central Government from time to time were evidence of its intentions and stand on the issue of recognising and regularising the rights of the tribals on lands, perhaps the biggest pointer of that intention is the Scheduled Tribes (Recognition of Forest Rights) Bill 2005 which is briefly discussed below.

The Schedule Tribes (Recognition of Forest Rights) Bill 2005- Potential to undo a historical injustice41

The primary aim of the proposed Scheduled Tribes (Forest Rights) Bill is to secure land rights to those forest dwelling tribal communities who are the poorest of the poor and whose rights have been historically denied through faulty reservation process. It is well known and documented that the erroneous process of settlement of rights of forests and lands in this country has been the primary reason for tribal unrest. It is also well known that not every tribal community fought and was able to enact Tenancy Acts such as the Chota Nagpur Tenancy Act or the Santhal Paragna Act as in Jharkhand or were strong enough to enact autonomous districts and councils as in the North Eastern States to escape colonial excesses. There are numerous rights which have dwindled into privileges and concessions. The Nistar regime of Madhya Pradesh and Chhatisgarh is one of the many such examples. It is little wonder then that most settlement processes are in dispute today- be it Orange areas debate in Madhya Pradesh 42 or dalli lands in

37 The umbrella legislation is the IFA. Several State Acts have their own Forest Acts. The only condition precedent is that it has to conform to the mandate of the IFA, 1927.38 It is important here to distinguish rights from privileges and concessions. While the former is enforceable the later may be revocable.

39 See Section 18-26-A and Section 35 of the Wildlife Protection Act, 197240 Dangwal Parmesh: 1999: Whose Forest are they? A Case study of the proposed Rajaji National Park in North West India: Anon41 The views expressed herein assume further importance as the Consultant was part of the Technical Support Group as a part of the Drafting Committee of the Scheduled Tribes (Recognition of Forest Rights) Bill 2005.42 The Orange Areas case filed by a mass based tribal organization has been pending in the Supreme Court constituted Centrally Empowered Committee for the last two years

Maharashtra or the entire settlements of rights of national parks and sanctuaries that is presently sub judice in the Supreme Court for the last decade. Even the apex court which had prescribed one year for such settlement seems helpless at the hands of bureaucracy where most national parks and sanctuaries have still not completed the settlement of rights process under the Wild Life Protection Act.

It is amidst this prevailing reality that the proposed Bill assumes importance. The preambular focus of the Bill is that the forests and the forest dwelling scheduled tribes have the best chance to survive if the people are integrated in the management and control of the forests on which they are dependent. Globally this is being accepted as the cardinal principle for forest management. The emphasis of the Bill to look at forest land –tribal interface -of which occupation of forest land by tribal and their bonafide rights to livelihood are major components- from a broader perspective of integrating various line agencies for the larger public good is not new. The national policies or the state governments or the external aid agencies which have been investing in the forestry sector have been talking about this integration for a long time however, this theme has not been enacted through any legislative frame thus far. The proposed Bill is an attempt in this direction for the first time. The proposed Bill only strengthens the stand taken by the Ministry of Environment and Forest on recognition of forest rights.

Amidst the fears expressed on the proposed Bill, is that forest land will be distributed as a consequence of the Bill, and there will be fresh allocations of forest land. This will decline the forest cover and decimate wildlife. At best these fears can be analysed as a poor reading of the proposed Bill as at no place the Bill refers or espouses fresh allocation of forest lands. What is envisaged is recognition and not allocation of a de facto position of occupation of forest land. Similarly there is no provision or intent to distribute forest land. Again, as statutorily mandated in several forest village rules of many states it has been assumed in the proposed Bill that about 2.5. ha. of land is a subsistence estimation of land required for each family. This is again only recognising existing occupation and in fact limiting any excess forest land. The role of Gram Sabha has been recognised as the nodal agency where verification can be initiated of bonafide occupants on forest lands. A detailed procedure of verification has been envisaged. The Bill further not only mandates the responsibility of protection of biodiversity and the forest lands but also vests authority for doing so. One of the limitations is that the said proposed Bill is limited to Scheduled Tribes alone and thus there is a possibility of excluding bonafide forest dwellers who may not be Scheduled Tribes. It is reliably learnt that the Bill is envisaged as a first step to cater to a community which is most marginalised and where records exist to substantiate the bonafide claims of scheduled tribes. The experience of implementation will feed in to a broader legal and policy frame to include other bonafide claimants subsequently. It is also believed that an over whelming response to the Bill has been received officially favouring its passage and it has the highest political will to see it through the current winter session. Only time will be a test of this political will.

Concluding Remarks

The above reemphasises the need to understand closely the national policy environment on tribal land especially to understand the Union Governments’ vision and strategy with respect to the tribal people of the country. The specific provisions of the draft Tribal Policy, Policy on Project Affected Families, Rehabilitation and Forest Policy throws up important pointers in this regard. There are limitations in the state legislations such as MPLRC which although gives on hand a special status to tribal land and provides for restriction on transfer of tribal land to a non-tribal, on the other, it defines the term transfer quite ambiguously. A number of national and state laws including in particular, prohibition of transfer of land from tribals to non-tribals has been adequately provided in various Land Revenue Codes and Land Regulations and Acts passed by different states. However, despite this categorical legal imperative, the problem of land alienation of the tribal land continues to persist and, in large areas of the country, it is now endemic. A bulwark against rampant land alienation can be the recognition of communal land rights of the tribals. Further, there is no comprehensive central law on Rehabilitation and Resettlement of the Tribal People. The absence of the central legislation gets compounded by the fact that the some state legislations enacted for rehabilitation and resettlement suffers from major drawbacks. They are either

project specific or their applicability depends on the discretion of the government, which again limits the scope of these acts. The Madhya Pradesh Act, for example, basically revolves around affected persons of irrigation projects and hence has a limited focus. Then there are ambiguities under PESA and especially in its provisions requiring that the Gram Sabha or Panchayat at appropriate level shall be consulted before making acquisition of land in scheduled area for development projects as well as before resettlement or rehabilitation of persons affected by such projects in Scheduled Areas. A review of these provisions as adopted by State of Madhya Pradesh and Andhra Pradesh points specifically to the nature of these ambiguities in law. So long as these are not clarified and appropriate amendments are not made effective legal empowerment of Panchayats on consultation before land acquisition and for rehabilitation will remain elusive. Another significant issue that has emerged is the need for regularisation of rights of the tribals on Forest lands occupied by them for decades has been a central concern with the forest dwelling tribes. The existing legal regime of the forests and wildlife laws has adversely impacted them and thus there is a need to introduce urgent law reform in these areas. The remarkably far-reachng Scheduled Tribes (Recognition of Forest Rights) Bill 2005 can provide a new direction and help restore the balance in the legal frame for the forest dwelling tribals.