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Whose land is 'wasteland'?

By Kannan Kasturi

By the second half of the 19th century, the British government had codified a series of laws to enable it to extract as much as it could from the acquisition, sale and transfer of lands and forests. Unfortunately, republican India has not broken with colonial law and policy even in the 21st century, continuing with the policy of considering as public land all land not assessed for revenue and taking over such land after declaring it ‘forest’ or ‘wasteland’ irrespective of the history of occupation and use

 

 

Land today is at the centre of a bitter struggle between government and private industry, on the one hand, and rural communities on the other.

The government recognises land as privately owned if an individual has an authorised ‘patta’ or title; otherwise the land is considered State property. In practice, land that is nominally held by the government may be a common property area such as a traditional village grazing site, village forest or land adjacent to a seaside fishing village used by the community, an area occupied by people for many generations without the State providing the title, an area declared to be a forest where the State has not settled rights, or perhaps land that has been encroached upon.

When government provisions land for industry, infrastructure or mining, the land typically includes both government land and privately owned land; the rural communities which depend on that land and on the local environment are faced with loss of livelihood and the trauma of displacement. Individual land title-holders are provided monetary compensation as dictated by the colonial Land Acquisition Act (see box), a compensation that is never enough to replace fully the loss of land assets and access to common resources and allow continuance in the same occupation; those without titles get no compensation, as, according to the government, they had no property in the first place.

Rehabilitation is promised in policy. But the policy is based on the view that any loss of rights of those affected has already been compensated. It is thus a humanitarian act, an act of benevolence by the State, a measure to mitigate the suffering of affected citizens to the extent permitted by external circumstances and subject to various conditions, no more or less than what the government would do for victims of any natural calamity. There is certainly no assurance that all those affected by the State’s acquisition of land will be so rehabilitated that they are at least able to maintain their standard of living.

There is clearly a great divergence between rural communities and the government on how they view land, its ownership and use rights. This divergence arose in the colonial period which is when much of the law and policies relating to land were laid down, and has continued to widen over the last 60 years of democratically elected governments. The rest of this essay will elaborate on this divergence of view that is at the root of the conflict.

Institution of private property rights in land

Private property rights in land, including the right to sell and mortgage land, came to be firmly established in India by the second half of the 19th century, driven primarily by the colonial State’s need to increase land revenue.

Land revenue, the tax on cultivation, was the main source of State revenue when the British started taking control of territory in India. The colonial administration was keenly interested in finding ways to increase tax collection. ‘Survey and settlement’ operations were carried out which recorded, village by village, every field and holding. The surveys not only classified and evaluated the land, but also recorded rights over the land. ‘Settlement’ referred to the fixation of land tax along with the term for which the assessment was to hold good.

The colonial administration experimented with various modes of collecting tax. In the Bengal Presidency, revenue collection was entrusted to the zamindars with the ‘Permanent Settlement’ of 1793, and they were recognised as the actual proprietors of the estates though they had been only revenue collectors earlier. In the Bombay and Madras Presidencies, tax was directly collected from individual cultivators whose title to the land also derived from State authorisation. The right to transfer land by sale or mortgage was ensured in a series of codified laws, starting in 1859 (Vani, 2002). This was necessary for the State to be able to enforce the payment of land revenue under threat of its attachment and sale.
    
Government takeover of common and public land

The State authorisation of private property rights in land also resulted in the separation of public land from private land and facilitated the takeover of public land by the colonial government.

Land not under cultivation, termed ‘wasteland’, as it did not provide revenue, was declared to belong to the State and taken over by the revenue department. Such land included lands near villages that were traditionally a common resource available to the villagers for grazing and other purposes. Such land was also sought to be brought under revenue settlement. Title to such land was offered for consideration to local landlords and the general public through an order of the Court of Directors of the East India Company in 1856, and rules for selling ‘wastelands’ were published in 1864 (Vani, 2002).

Prior to colonial rule, rural communities enjoyed the use of forests near their villages. Personal use of forest products was typically not taxed by the rulers. Forests were also home to large numbers of forest-dwellers who continued to live generally undisturbed by the rulers.

Colonial interest in the forests started with the extraction of teak for the British navy, later extending to timber for India’s rapidly expanding rail network. Initially, village communities also had access to the forests, but it was soon clear to the colonial administration that they were competing for the same resources. The Indian Forest Act, first enacted in 1865, asserted the right of the State over forest resources and the forest department was created to manage those resources.

Its successor Act in 1878 recognised forests as valuable property and provided for complete State control. Forests were categorised as ‘reserve forests’ (reserved exclusively for State use) and ‘protected forests’, where people were given some use privileges by the forest department which could also be taken away. Customary rights of existing forest-dwellers could be extinguished through ‘permanent forest settlements’ by the forest department after providing compensation, following the provisions of the Land Acquisition Act, after which they would be evicted from the forest. Without any notion of legal ownership and written record of rights, these communities were at the mercy of the forest department, which would decide if they had rights or just label them ‘encroachers’. By 1939, 188,500 sq km of land in undivided India had been notified as ‘reserve forest’, forest-dwellers evicted and the land brought under commercial forestry operations (Milward, 1947).  

Continuity in law and policy after Independence

Republican India did not break with colonial law and policy. The colonial Indian Forest Act was retained. State-controlled commercial forestry continued, but private industry was also allowed access to forests. Far from rectifying the wrongs of the colonial period, the traditional and customary rights of millions of forest-dwellers continued to be ignored.

In the 1970s and ’80s, legislation in reaction to increasing concern for protection of wildlife and environment resulted in a further setback for forest-dwellers. The Wildlife Protection Act of 1972, for example, allowing for the creation of national parks and sanctuaries, continued with the practice of ignoring traditional and customary rights even though such customary law was now recognised in many countries of the world with native communities. The procedure for settling rights in reserve forests as well as national parks and sanctuaries was derived from the colonial Land Acquisition Act of 1894. Absolute power remained in the hands of government officials to determine the fate of those living in lands declared forests or sanctuaries.

The State carried on with the policy of considering all land not assessed for revenue to be public land and taking over such land after declaring it ‘forest’ or ‘wasteland’ irrespective of the history of occupation and use.

Vast lands of former princely states and former zamindars were declared forests through blanket notifications reminiscent of the colonial period, without settling the rights of pre-existing occupants. This was a substantial area -- 26 million hectares, or over 7% of India’s land mass. These areas supported a variety of communities including shifting cultivators, members of hunter-gatherer tribes, forest-based settled cultivators, nomadic pastoralists and tenant cultivators of zamindars, whose rights to the land were customary. With the State takeover of the lands, these communities were reduced to the status of ‘encroachers’ on land they had been using for generations (Sarin, 2005).

The State failed to expedite the ‘survey and settlement’ process in areas where, for various reasons, the colonial administration had not completed the process, such as in the scheduled areas. Large parts of south Orissa were never surveyed. Land was often indiscriminately laid claim to by the State. Madhu Sarin gives several other examples (Sarin, 2005):

‘Revenue land settlements carried out during the 1970s in Orissa did not survey hilly lands steeper than 10 degrees because of the expense involved. They were declared (including their un-surveyed villages and cultivated lands) as State-owned forests or “wastelands”.’ These lands were predominantly inhabited by tribals.

‘In 1975, in four districts alone (Thane, Raigad, Ratnagiri and Sidhudurg), over 303,000 ha of agricultural landholdings were declared ‘private forest’ without the knowledge of the more than 100,000 (mostly tribal) cultivators. With one stroke of the pen, and without any verification on the ground, these lands were acquired and vested in the State.’ Ironically, many of these cultivators were given titles to these lands by the State in the land reforms carried out after Independence.

Over the last 60 years, the continuation of colonial laws and policies that ignored traditional and customary land use has resulted in millions of people -- tribal cultivators, forest-dwellers, fishermen, rural poor -- being reduced to the status of illegality, encroachers in the government’s eyes, vulnerable and often subject to harassment and rent-seeking by forest and revenue officials at any time.    

The current land acquisition scenario

Plans for land acquisition for private industry are being determined according to the location preferences and requirements of industry, and are not concerned with the current use or productivity of the land or the impact its acquisition will have on the environment or the community living on or around it. Thus, large-scale land acquisition is happening around India’s metros, ports and harbours and in lands bearing coal and mineral deposits.

The targeted land includes nominally government land (‘wasteland’ or forest), particularly when the land is on the coast or in mining areas. The people who have been living on such land, though vulnerable to harassment by officials, still manage to meet part or all of their livelihood needs from it. It is when this land is reclaimed by the State for the purpose of some ‘development’ project and handed over to industry that they feel the full impact on their livelihood. Some examples of current developments are illustrative.

The Mundra SEZ in Kutch, Gujarat, is coming up in phases over a 130 sq km area. It includes a port, an airport, a container terminal, housing and other infrastructure for industry. The company describes the land already acquired as a “sparsely populated wasteland”. But this land has been supporting the grazing and fishing needs of 15 villages of that area for generations; over 1,000 fisher families have been affected by the takeover that directly impacts their livelihood. They have had to wage a struggle even to ensure access from their village to the sea which was being blocked by an airport that was part of the SEZ. Reports of environmental damage from the project include the destruction of several hundred hectares of mangrove and the filling and levelling of creeks -- the impact of these changes will be seen in the future.

A second example is the planned POSCO project located near Paradeep port in Orissa. The project includes a steel plant, township, private port and captive coal and steel mines. The plant and port alone require over 4,000 acres of land that will reportedly affect 22,000 people living in seven villages and several hamlets. It is reported that villagers have pattas for only about 500 acres though they have used the land for generations. Besides paddy and fishing, the region currently supports successful betel leaf cultivation. There are also numerous landless families in the area. The proposed port is located at a place that serves as a breeding area for fish and is likely to affect the livelihoods of local fishing communities. They are doggedly opposing the project.

Conclusion

Rural communities see the land that they have used and nurtured for generations, what they consider to be their land, the basis of their livelihood, being taken away from them, leaving them without a life support system. They see that the acquisition is for private industry that will make profits for itself. They find it hard to understand the ‘public purpose’ of these projects. Past experience of other projects shows them that ‘development’ passes them by. Instead, they have often to face the consequences of the degradation of their environment, water sources and forests. They have been witness to the condition of those who were bypassed in the past and find it hard to have much faith in the government’s promises of rehabilitation. Is it then surprising that many believe that they have no choice but to resist?

(Kannan Kasturi is an independent researcher and writer on law, policy and governance.)

References

  1. Vani, M S. ‘Customary Law and Modern Governance of Natural Resources in India -- Conflicts, Prospects for Accord and Strategies’, in Rajendra Pradhan (ed) Legal Pluralism and Unofficial Law in Social, Economic and Political Development,Papers of the XIIIth International Congress, April 7-10, 2002, Chiang Mai, Thailand, ICNEC Kathmandu, Vol 1, pp 409-446
  2. Milward, R C. ‘The Indian Forest Service: Its origin and progress’. Unasylva Vol 3, No 1
  3. Sarin, Madhu. ‘Law, Lore and Logjams: Critical issues in Indian Forest Conservation’. Gatekeeper Series 116. IIED, 2005, London

The ‘public purpose’ of land acquisition

The Land Acquisition Act has its origins in early regulations made by the East India Company to acquire land for roads, canals and the railway network.

By 1870, there was an acquisition law that defined the process for acquiring land, determining compensation and seeking judicial arbitration in case of disputes over compensation. The law continued to be fine-tuned and took the consolidated form of the Land Acquisition Act, 1894.

Colonial legislators were concerned with the moral justification of the law. Privately held land could be expropriated by the State, but only to serve some ‘public purpose’, for performing some public good or satisfying a public need. What constituted ‘public purpose’ was, however, not defined in the law but left to the government to decide. The acquisition, though forced, had to be seen as a sale. Monetary compensation was determined by the ‘market value’ and an additional amount offered to compensate for the hardship imposed by the involuntary nature of the transaction.

After the end of colonial rule, the Constitution of India, by Article 372, allowed all colonial laws to remain in force until they were repealed by Parliament. The Land Acquisition Act of 1894, in an essentially unchanged form, continues to be used by the State for the land requirements of the government, the public sector and private enterprise.  

In the early years after Independence, the Law Commission of the Government of India was asked to review the Land Acquisition Act. Reporting that a large number of suggestions were received urging that the term ‘public purpose’ be clearly and exhaustively defined, the Commission argued in its 10th report in 1958 that it was “neither possible nor expedient to attempt an exhaustive definition of public purposes”. It further stated that all that could be attempted in the law was “to provide an inclusive definition so as to endow it with sufficient elasticity to enable the courts to interpret the meaning of the expression ‘public purpose’ according to the needs of the situation”.

Subsequent amendments of the law retained the elastic definition of the term ‘public purpose’ to suit the needs of the government of the day.

The practice of the last 60 years has thrown up a number of issues with regard to the legislation that have a severe negative impact on the affected people.

The acquisition process follows the authoritarian methods of a colonial administration, bringing years of uncertainty and fear into the lives of those affected. Getting the best compensation often involves going to court. Those with the ability to engage lawyers and work the system are able to get the benefits, while others, usually the poor and uneducated, are short-changed.

The monetary compensation offered to landowning farmers is linked to ‘market value’ as determined by recent recorded transactions in land, though it is common knowledge that these always undervalue the land. Land prices also shoot up after permitted land use in an area is changed by the government from agricultural to industrial or residential. The original owners however are denied the benefit of the revaluation of land.

The law narrowly defines those affected by an acquisition. People not owning property, such as agricultural and non-agricultural labourers and artisans, are not recognised as being affected or entitled by law to any compensation. Large-scale acquisition covers the population of entire villages and includes loss of homesteads in addition to loss of land and livelihood. Yet the law does not engage itself with issues such as resettlement or rehabilitation of the displaced.
 
The government has recently proposed major amendments to the acquisition framework with the Land Acquisition (Amendment) Bill, 2007 along with a companion Rehabilitation and Resettlement (R&R) bill. It claims that the new laws “will go a long way in striking a balance between the need for land for development and other public purposes and protecting the interests of the persons whose lands are statutorily acquired”.

An issue that has been agitating the public mind is how acquisition for private companies by the government can be justified.

The amendment makes it explicit that the requirements of a private company for land for a “purpose useful to the general public,” can be considered a ‘public purpose’ (with the limitation that government will acquire a maximum of 30% of the land needed). The phrase “purpose useful to the general public” seems to have sufficient elasticity to encompass almost any land use.

On compensation issues, the proposed law, while recognising that land value increases with change of land use after acquisition, leaves it to the collector to “take into account” such change while determining compensation.

R&R necessitated by displacement resulting from large-scale acquisition is left to the R&R bill which spells out a set of benefits that the State will try to provide, subject to various conditions and external circumstance

InfoChange News & Features, April 2008