LAND ALIENATION – Anthropology by K.V RAMESH

Introduction:
Anthropologists like Haimendorf (1946, 1976), Verrier Elwin (1943,1957), S.C. Dube (1955), Roy Burman (1986), and several others who studied individual tribes and problems of tribes in general have examined the problem of land alienation in the tribal tracts in India. Reports of the Commissioners of Scheduled Castes and Scheduled Tribes from 1950 onwards also dealt with the problem of land alienation in specific tracts inhabited by the tribes in India.
All these researches have shown:

(a) that the problem of land alienation in the states has been of varying degrees,
(b) that the land alienation affected about 30-55 per cent of the tribal households,
(c) that the incidence of land alienation is more in areas natural resources and where there are possibilities of increased agricultural production and
(d) that about 80 per cent of land was alienated to the non-tribals.

Causes of land alienation:
The causes of land alienation are mainly five:

(i) One of the causes of land alienation is tribal indebtedness. In the preindependence period, the British introduced market economy, raised land revenue and sale of forest produce in the tribal tracts. Market economy created cash economy. Increase in land revenue became a burden to the tribal households. Sale of forest produce brought contact with contractors. All these made the tribals to depend more and more on money to meet their economic and socio-religious needs. Knowing the needs and the miserable conditions of the tribals, the non-tribals like traders, merchants and money-lenders entered the tribal areas. They lent money to the tribals at exorbitant rates of interest after accepting the tribal land as security. The tribals could not repay the loans. As a consequence, they had to part with their lands.
(ii) Another reason for land alienation is the opening of the tribal areas in the wake of the development process and setting up of various irrigation, power, industrial and mining projects. Establishment of such projects displaced the tribals and forced them to alienate their land to the government.
(iii) The third reason for land alienation is the introduction of commercial orientation of land as a resource and a substantial increase in the pressure on the land. The non-tribals who settled in the tribal areas purchased the lands from the tribals who were in need of disposing the lands.
(iv) The fourth reason is the defective system of land records. The system of maintaining land records also varied considerably. In some states the tribal areas were covered by regular settlement operations, and some rough and ready records were prepared on the basis of individual estimates without detail survey and is some others, a system of revenue based on the number of ploughs or family units was introduced as a criterion for determining the quantum of land utilised. Nevertheless, the tribals continued to clear the forest land for agriculture and there were considerable diversions between the records maintained by the authority and the actual holdings. In the absence of a regular land settlement system or up to date records of land rights, the tribals were at the mercy of the petty revenue officers, Forest Departments and the landlords.
(v) Finally, the simple nature, illiteracy and ignorance of the tribals could not take advantage of debt regulation acts and their legal remedies. The money lenders insisted on security for issuing loans to the tribals. As the tribals have no other form of security, they pledge a portion of their lands to the person giving loans and allow him to enjoy the benefits of that portion of land. But the trader or money lender of feudal land lord is not satisfied with this. He manipulates the figures related to the principal amount and interest to be paid by the tribal. The repayable amount becomes burdensome to the tribal. During this period, however, the money lender enjoys the benefits of the land deposited with him by the tribal towards the security. Finally, when the money lender confirms that the tribal cannot repay the accumulated loan amount he starts insisting upon tribal settling the loan amount immediately by selling the land to him. The troubles of the tribals do not end by selling the land to the money lender or trader or feudal land lord. The tribals are forced to work as labourers in the farms which were once their own to repay the remaining debt. This process sometimes continues from one generation to another.

Causes :
AMONG the major causes for land alienation, chronic shortage of cash has been enemy number one of the poor tribals ever since they came into contact with the civilized world and its monetary institutions. The tribal people are always in need of cash for various purposes like marriages, fairs and festivals, clothing, liquor and a host of needs of everyday life.

Due to poor and inadequate yield and uneconomic agriculture they have also to purchase food grains from the market. Thus their chronic indebtedness to the neighbouring shopkeepers and moneylenders
becomes the primary factor in land alienation. The omnipresent money lender posing as godfather and saviour of the tribals is ever ready to advance loan to them without demanding any guarantee and for
whatsoever purpose. The only thing a tribal has to do is to affix his thumb impression on a blank paper or against a draft in a language the illiterate tribal is unable to decipher. Sometimes, the loan may be
extended on oral commitment, no matter this seemingly innocuous oral commitment may become a commitment to total slavery or forfeiture of land.

OF LATE many tribals have started approaching the state-sponsored co-operative credit societies but their experience with the societies has been no better. Another factor for their approaching the local moneylender is that the co-operative societies advance only short-term loans for productive purposes while most of the tribals need loans for consumption and subsistence too, which fall short of government policies.

But for even those who borrowed from co-operative societies, the experience often has been nerve shattering. They are not prepared to be imprisoned or their belongings be confiscated in case they are unable to repay these loans. Hence most of them prefer to take loan from the familiar sources even at usurious rates of interest.

Methods of land alienation:

Manipulation of Land Records : Manipulation of land records is the first and foremost form of land alienation. The unsatisfactory state of land records in the initial stages and settlement operations and also in the period following regular settlement operations contributed to the problem of land alienation among tribals.
Benami Transfers : This is another form of land among tribals. Study teams and working groups appointed by Planning Commission reported this form alienation. The report of the study team of the Union Home Ministry (1975) pointed out “that large scale of ownership of the adivasis lands are being allowed to go out of hands through illegal and benami transactions, collusive civil proceeding et. in which land remains to be in the name of the original owners who are reduced to the level of share croppers”. Another report of the working group on Tribal Development appointed by the Planning Commission also states that “Inspite of the protective measures to restore alienated land to tribals, it still reported to be taking place. It appears that in cases these are caused because of Benami transactions”.
Mortgaging of Lands: The third form land alienation is mortgaging of lands or leasing of lands. To raise loans for various needs the tribals have to give their land or gold security. For many tribals only land was the security which mortgaged to money lenders or land lords.
Encroachment: This is another form or mode of dispossessing the tribals of their lands this method is adopted by the new entrants in all places where there were no proper land records. Bribing the patwari for manipulating the date of settlement of land dispute, ante-dating are the methods employed to claim the tribal lands.
Concubinage or Marital Alliance: Another form of land alienation is concubinage or marital alliance which has on a large scale in the alienation of lands from the tribals. Nontribal purchased fertile lands and registered them on the names of tribal women whom they kept as mistresses.
Fictitious Adoption: Fictitious adoption of the non-tribals by the tribals another form of land alienation which is prevalent in few parts of India. “Acquisition of lands in the names of non-tribal boys who become tribals overnight after execution of the bogus adoption deeds in the name of a tribal is another method used by non-tribals to grab tribal lands.”

Case from M. P. and U. P.

ALTHOUGH the problem of land alienation has been rampant in all the states containing some tribal population but it has happened on such a large scale in these two states that its modus operandi may be taken as representative of this evil.
KORWA tribe of Sarguja district of Madhya Pradesh and Tharu and Bhoksa of Tarai region of Uttar Pradesh have been the worst victim of deceit and plunder of their land. The entire region inhabited by the Korwas is surrounded by Muslim moneylenders locally known as Miyan. They are ever ready to advance loan at the slightest pretext with the only condition that the Korwa has to mortgage some of his land.
Under chronic conditions of poverty and scarcity they are unable to repay it and the moneylenders occupy the land. Addiction to locally brewd liquor is also an important reason for taking loans. Although the tribals are exempted from excise regulation of brewing liquor for personal purposes, yet they are not allowed to make their own liquor by these moneylenders and they have to purchase liquor from the illicit
breweries of the moneylenders who are not troubled by the excise officials in carrying on their illegal trade. Thus once caught in the vicious circle of indebtedness, the Korwa is left with no other option but
to surrender and forfeit his land.

THE Tharu and Bhoksa tribes of Tarai region of Uttar Pradesh are the victims of Punjabi refugee moneylenders-traders who have grabbed thousands of acres of land reclaimed by the tribals. The climate of this region was always very inhospitable to the non-tribal. Malaria was rampant and the land was marsh with abundance of poisonous insects.

Due to these reasons the non-tribals rarely entered these areas. Being acclamatised with such a climate, the Tharu and Bhoksa people cleared the forests, reclaimed thousands of acres of land and made it cultivable.

With the first wave of invasion of this region by the uprooted Punjabi refugee from Pakistan the entire scene underwent change. The labourious and enterprising Punjabi refugees settled here in thousands and
taking advantage of the ignorance and economic vulnerability of the Tharu and Bhoksa tribals grabbed their land. The new Punjabi settlers adopted the same modus operandi being in vogue in other parts of the country, i.e .advancing loan unconditionally and providing cheap liquor to the tribals.

Other Methods

ACCORDING to the Report of the Scheduled Areas and Scheduled Tribes Commission, 1961, there are various other methods resorted to by non-tribals to get possession of the tribal land. One is the familiar
method of utilizing the machinery of the courts,’ before which the tribal is more powerless. The second is the method of temptation of immediate gain. The tribal under a monetary inducement allows himself to be used by the moneylender or usurper as a witness against himself. The third method is called bazdawa by which the tribal is induced to suffer a decree being passed by a court of law against himself. A fourth is that of the tribal accepting before a court of law that his opponent holds the land by adverse possession. Then there is voluntary surrender. Though those surrenders are usually taken as voluntary, in most cases , they are actually engineered by the landlords who take advantage of their victim’s ignorance.

THE reasons for this state of affairs are obvious. One of the most important is the lack of adequate knowledge of the real conditions in the tribal areas on the part of the authorities. The tribal is at the mercy of unscrupulous Moneylenders who mostly come from outside and who have no interest in maintaining the tribal social structure or improving the tribal economy. The second reason is complicated legislation. Formerly, the tribal panchayats settled all disputes, thus avoiding recourse to endless litigation in costly law courts, the proceedings of which are totally incomprehensible to the tribal. The great reason, is lack of alternative source of credit which keeps him under the thumb of the moneylender.

Legislative measures for protection of tribes

Consequent the National Policy on tribals which envisaged protection and integration of tribals, several protective legislations were passed in different states imposing restrictions on land transfers for the elimination of exploitation of tribals. Different State Governments have enacted laws which cover the alienation of tribal lands, protection from money lenders, debt relief and liberation from bonded labour.

The following laws were enacted in states having tribal concentrations:

1. The Assam land Revenue Regulation Act, 1964.
2. In Bihar the Scheduled Area Regulation, 1969
3. The Gujarat State Government by a notification issued in April 1961, under Sec.73-A of the Bombay Land Revenue Code 1879 prohibited the transfer of occupancies held by the tribal cultivators in Scheduled Areas.
4. Under the Kerala Arable Forest Land Assignment Rules 1970.
5. Madhya Pradesh Land Revenue Code 1959.
6. Maharashtra Land Revenue Laws.
7. The Orissa Scheduled Area Transfer of Immovable Property Regulation 1956.
8. The Rajasthan Tenancy Act 1955.
9. West Bengal Land Reform Act 1971.

Deficiencies in laws and remedial measures by XaXa Committee

Land alienation has been caused either due to inadequate legal provisions or lack of implementation of the existing legal provisions. Some of the inadequacies noticed in various land laws are as follows:

i) In some states legal provisions are applicable only to Scheduled Tribes living in Scheduled Areas or Notified areas. In Maharashtra and Bihar, the laws are applicable to Scheduled Areas and in Assam to the tribal belts only and not to other areas.
ii) There is a wide disparity in the application of limitation period. In states like Rajasthan, Andhra Pradesh and Tripura a general limitation period of 12 years is allowed in cases of alienation of the tribal land. If it is found inadequate and may be increase to 30 years as is done in some like Orissa.
iii) Absence of provision for initiating Suo moto action by the administrative authorities for detection and restoration of the alienated land without waiting for the tribal owner to take initiative in the matter is also responsible for slow detection of such cases.
Provisions for Suo moto action present in Maharashtra, Gujarat and Madhya Pradesh.
iv) For the purposes of land alienation, the law of evidence may be suitably amended to give primacy to oral evidence over the documentary evidence.
v) In Scheduled areas it should be the responsibility of the non-tribals to prove that the land been acquired in accordance with the provisions of the law as in Madhya Pradesh, Orissa and Andhra Pradesh.
vi) The term “transfer” should be comprehensive so as to include illegal and benami transfers of land.
Vii) No tribal should allowed to transfer, surrender or abandon ownership or interest in his immovable property in favour of a non-tribal. Such a provision already exists in the states of Madhya Pradesh, Orissa, Maharasthra, Andhra Pradesh and Gujarat.
viii) The state laws should be reviewed to restrict the judicial intervention at the High Court level. There should be a provision, in order, to curtail the period of litigation, that no stay order could be brought by a higher court against the order of a lower court restoring the land to tribal holders. The number of appeals should be restricted to one only. The jurisdiction, of Civil Courts over the tribal land should be barred, where it has not already been so done.
ix) The State laws have no provisions to deal with cases of occupation of the tribal land through deceit and force. Such cases are generally dealt with under the provisions of the Indian Penal Code which is a time taking process. Executive courts may be set up on the pattern of provisions made in the Bonded Labour Abolition Act, 1976 and empowered to try such cases. Punitive provisions should be made for dealing with those found guilty. Provisions may also be made for summary eviction of those who have taken possession of tribal land. Repeated offenders may be booked under preventive detention laws.
x) The state laws do not prescribe any time limit within which the order of the competent authority to restore the land to the tribals should be enforced. Many orders thus remain unexecuted for a long time and it defeats the purpose for which they were issued. Specific time limit not exceeding 3 months may be fixed for restoration of land to the tribals. The responsibility of the execution of such orders may be specifically assigned to the district collector or to any other specific officer.
xi) Some states do not have clear provisions in their laws to deal with cases where pucca and substantial structures have been erected on the alienated land prior to their restoration to the tribal owners. The loophole provides further opportunities to the transferee to move other criminal and civil to preventing demolition of structures. In order to prevent such unnecessary litigation, laws should be enacted which would provide demolition, laws should be enacted which would provide demolition of such structures it they are not substantial or for taking them over by the Government on nominal compensation to be fixed by the court if they are substantial. No separate order for demolition would be necessary and no court should entertain proceedings on this ground.
xii) In some states, laws pertaining to protection or tribal land form alienation are conflicting and contradictory. The non-tribals have taken advantage of the lacuna to validate their claims to the tribal land. Such incongruous provisions are often allowed to prevail by courts also. It may, therefore, be specifically provided by each state that the protectionist provisions relating to tribal interest in land would prevail over any provisions to the contrary in any other law in force.
xiii) In tribal areas, in case of dispute about ownership of land between a tribal and a non-tribal, it should always be presumed that land belongs to the tribal unless proved otherwise. The proof should be provided by the non-tribal. In such cases the law should provide for summary disposal of cases by mobile courts and the action to restore land should follow immediately after the issue of the order. In case of appeal or revision being field, the disputed land until disposal of the case should remain in possession of the Government who would be competent to lease it out to the tribal. No stay order should be passes by any higher court against the restoration of land to the owner.
xiv) No provision exits are present to regulate transfer of land from tribals to tribals. In order to protect the interest of the poor tribals it is necessary to have some provisions to regulate intra-tribal transfer of land also.
xv) The protective provisions have been relaxed in respect of tribal lands mortgaged to Scheduled Banks and financial institutions. This has been done with a view to extended credit facilities to the tribal landowner, the financial institution has power to dispose of his land to realize the dues. Thus, the tribal land is ultimately alienating in many cases to the non-tribals. It is, therefore, necessary to make provisions for restricting transfer of such land to buy such land, the Government may purchase the land and allot it to the landless tribals.
xvi) Despite provisions against transfer of tribal land to the non-tribals, the registering authorities continue to register documents of transfer of such land without verification of the land record. In order to ensure that the protective provisions pertaining to alienation of tribal land are not violated, Indian Registration Act needs to be amended to provide for verification of the land records by the registering authority of the state before registering any land transfer document.
xvii) Many states provided for transfer of tribal land to the non-tribals with the permission of the collector. This power is often exercised by subordinate officers on behalf of the collector, and it has been misused by both to legitimise tribal land alienation. Therefore, no authority should be permitted to authorize transfer of the tribal land to the nontribals. In case of distress sale of the tribal land, the Government should purchase it at fair price and distribute it among the landless tribals. There are such provisions in West Bengal.
xviii) There is no provision in the state laws which empowers a State Government to remove doubts and difficulties in the implementation of the protective laws. General provisions may be made empowering the state to issue guidelines for implementation of the protective provisions.
xix) There is no provision for a state being made a compulsory party in all proceedings involving tribal land in any state laws. The tribal, due to poverty, is not able to fight long-drawn litigation. In such cases the State should be made a compulsory party so that the Government pleader could defend the tribal interest. This is the most effective way of defending tribal interests and should be provided in all the state laws.
xx) Protective provisions should be made where they do not already exist, as for example, in Tamil Nadu. In case of Karnataka, the protective land laws apply only to the land assigned by the state Government to the landless tribals. It should be extended to cover all tribal lands. In case of Kerala, though the protective laws were enacted in 1975, it has been made applicable form 1982 only. This has adversely affected the tribal interest. It should be made effective from the data enactment.

The slackness in the implementation of the restrictive provisions and also the socio-economic factors has been identified by S.N. Dubey and Muria as the causes of land alienation. “Some relief to the tribals threatened by non-tribal land grabbers was subsequently provided by the amendments of the Land Transfer Regulation 1959, enacted in 1970 and 1971, which prohibit all transfer of land in scheduled areas, not only from tribal but even from non-tribal to non-tribal, by providing for conducting Suo moto enquiries into non-tribal occupations of lands in tribal areas and for restoration of such land to the tribal owners if the non-tribal is an illegal occupant and by prohibiting attachment of tribal in execution of money decrees”.

Remedial Steps by Scheduled Areas and Scheduled Tribes Commission , 1961,

TAKING into consideration the three bases of land alienation of tribal people viz., (a) the lacunae in the laws, (b) the ignorance of the tribal people, and (c) the complicated legal procedures to be followed, various state governments have been doing something to help the tribals. But except in the hill districts of Assam, Manipur and Mizoram the resulting benefits have been only nominal.

BEFORE looking into various legislative steps taken to safeguard tribal interest in land, it will be in the fitness of things to study the crucial recommendations of Scheduled Areas and Scheduled Tribes
Commission , 1961, on the basis of which various states passed a number of legislations. Its major recommendations are as follows :

(1) “There is need for a detailed scrutiny of all legislation affecting tribals land. The complicated procedures that have resulted in depriving the tribal of assistance also require to be examined. All existing Acts and Regulations should be examined by a committee in each state and Union Territory with the ultimate object of preventing completely the transfer of tribals’ lands to non-tribals for some time to come. It may be necessary to amend the present laws drastically in may cases. If this is likely to take time, we recommend that the governors may, in exercise of the powers conferred on them under the Fifth Schedule, issue the necessary Regulations without delay.
(2) “We also recommend that there should be a general prohibition of all transfer, whether by sale, mortgage, gift or lease under any kind of agreement or permission contract of entered the Deputy into by Commissioner tribals in favour or the of Collector non-tribals. The Government without the should make Rules in consultation with the Tribes Advisory Council governing grant to the permission by the Deputy Commissioner or the Collector, after ascertaining the conditions prevailing in each area.
(3) “There should be a – bar against suits or applications against any such order made by a Deputy Commissioner or Collector and courts of law should be precluded from taking cognizance of such transfers by sale, mortgage, gift or lease or any other agreement or contract and from passing decree thereon unless arrangement has been entered into with the previous permission of Deputy Commissioner or the Collector.
(4) “Deputy Commissioner or the Collector should have the powers suo moto or at the instance of the aggrieved tribal land-holder within a period of 12 years to institute enquiries and restore possession of the land with or without payment of any compensation to the transferee. This provision should be made
applicable to all transfers of land by tribals to non-tribals with retrospective effect from the 26th January, 1950. Adequate machinery should be created to – implement these laws or regulations. .
(5) ‘-Finally, we recommend that all surrenders must only be to the state, which should hold the surrendered land as a trustee for the tribals”