Alienation and Restoration of Tribal Land in Jharkhand: Current Issues and Possible

Strategies
Author(s): Ramesh Sharan
Reviewed work(s):
Source: Economic and Political Weekly, Vol. 40, No. 41 (Oct. 8-14, 2005), pp. 4443-4446
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4417262 .
Accessed: 26/04/2012 01:19

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

Economic and Political Weekly is collaborating with JSTOR to digitize, preserve and extend access to
Economic and Political Weekly.

http://www.jstor.org
 Alienation and Restoration
of Tribal Land in Jharkhand
Current Issues and Possible Strategies
This paper examines the ongoing processes that lead to the alienation of adivasi
land in Jharkhand,the legal provisions meant to address this problem, and
the problems with the working of the law in practice.
RAMESH SHARAN

T he alienation and restorationof adivasi land and land rights Bearing Areas Act 1957 and the SC and ST Prevention of
has been one of the most complex and sensitive issues Atrocities Act 1989. are some of the laws which govern land
in Jharkhand.Over the years, the adivasis have witnessed rights, regulate acquisition for public purpose and give adivasis
continueddispossession of both individual andcommunity control an executive protection from individual resource alienation.
over their resources. The continued alienation has not only These laws, albeit to a limited extent, also guarantee the cus-
intensified theirpoverty, but also seriously threatenedtheiridentity tomary rights of the community, define various categories of
in their own homeland. The history of earlier phases is obscure 'raiyats' and recognise special categories of tenures
but it seems that various tribal groups cleared the forest, made ('mundari khuntkatti' and 'bhuinhari'), protect the rights of
their habitation and developed a system of land rights and 'raiyats' against high rents/enhancements of rents, protect
inheritance, a system of village governance and inter-village against transfer of raiyati land, regulate the conditions of
organisation. Each phase of history has brought new challenges transfer and make provision for the restoration of illegally
before the communities. The alienation began duringthe medieval alienated land. The SPTA is in many respects similar to the
period, but intensified at an unprecedented pace in the colonial CNTA, but goes a step forward in recognising the customary
period. The communities not only lost their rights on forest, but rights and community life, particularly in relation to the
a new set of intermediaries were imposed on the tribal areas. settlement of land and the protection of the rights of paharias.
This led to widespread protests which caused the colonial a The SPTA prohibits transfers of all lands (including that of
uthorities to pass a legislation which recognised the rights of the non-adivasis) and allows transfer only in a few categories [see
adivasis through survey and settlement operations. However, Rao, this issue] while CNTA permits the sale of non-adivasi
these laws also legitimised the rights of the landlords. .land, and of adivasi lands to other adivasis within the same
There has been hardly any respite in post-independence India. police station and with the permission of the deputy commi-
The areabeing rich in naturalresources has attractedconsiderable ssioner. The SC land can be sold to other SCs within the same
investments in mines, industries, hydel projects, irrigation and district. The CNTA also permits the alienation of land for
reservoirs of different sizes. A number of educational and re- specific purposes like mining. The SC and ST Prevention of
search institutions have also been established here. All these have Atrocities Act has a provision for action against encroach-
led to both direct and indirect eviction of adivasi communities. ment of land.
The investment has created "enclaves" having very low linkages One of the most important steps in the direction for restoration
with the hinterland. Improper and callous rehabilitation has of illegally alienated land to individuals is SAR 1969. In the
accentuated the problem in the post-independence era. The light of its provisions, SAR courts have been established
continuous immigration of outsiders has also led to a fresh to expedite the process of restoration. The other important
demand for land. Migration due to urbanisation and indus- act has been PESA (1996), which has made provisions
trialisationon the one hand and ruralstagnation on the other hand, that the panchayat at the appropriate level and the gram sabha
has put furtherpressureon the assets of the tribes in the periphery. shall have the power to prevent alienation of adivasi land and
The history of the implementation of the laws protecting take an appropriate action to restore any unlawfully alienated
adivasis has been replete with violations. Every amendment to land.
prevent alienation has resulted in new loopholes. New modes
and methods have been adopted for the alienation of land. The Current Issues and Challenges:
rise of a new tribal elite has also increased the alienation of Mode and Process of Alienation
resources both in the urban and rural areas.
Land alienation can be defined both in a narrow and a broad
sense. In the narrow sense, it could mean the alienation of
Legal Provisions
individual landholdings and means of livelihood. In the broader
The ChotanagpurTenancyAct 1908 (CNTA), the SantalPargana sense, alienation includes the loss of common property and
Tenancy Act 1949 (SPTA), the Land Acquisition Act 1894 rural commons. Both communities and activists have been
(LAA), the Scheduled Area Regulation 1969 (SAR), the Coal struggling to have both senses of alienation recognised. Adivasi

Economic and Political Weekly October 8. 20054443

land has been alienated to both individuals and institutions.
A number of micro studies, research papers and govern-
ment committees have documented the process and mode
of alienation in the post-independenceperiod. Some impor-
tant studies have been: Sinha (1968), Vidyarthi (1969),
Sachidananda(1972), Thakur(1977), Gupta(1977), Maharaj
andlyer (1982), Sinha(1990), Sinha(1993), Oraon(1993), Iyer
(1993), Bhatia(1997) and Sharan et al (1999). In addition,
some unpublishedreports have documented the process in
detail, including, Oraon (1992), Kumar (1995),
CSD (1997), Bihar Vidhan Mandal Joint Committee(1998)
and GOI (2003).
Landalienationto individualscan be dividedinto fourcross-
cuttingcategories:namely, alienationin urbanand ruralareas
as well as tribalto non-tribaland tribal-to-tribalalienation.In
urbanareas, alienationhas been primarilydemandinduced-
for housing(by outsiders)and non-agricultural purposes.This
type of alienationhas continuedand acceleratedin the post-
independenceperiod, and has affected both tribes and non-
tribes.The majorityof such alienationis illegal and methods
include:collusive titles suits, collusive restorationsuitsin SAR
courts, 'chapparbandi','sada patta', marryingtribal women,
startingcommercialenterpriseswith adivasisas sleepingpart-
ners, manipulatingland records,and even forcible occupation
of adivasi land.I In SantalParganatransferstake place under
the guise of gifts and exchanges known as 'dan patra',
'badlanama'or through the conversion of agriculturalinto
homestead(basauri)land.2Inruralareas,alienationis basically
to meet the day-to-day needs of cash-strapped poor
adivasis. In the absence of active land marketsin ruralareas,
people resortto illegal mortgagesand at times outrightsales.
There have also been cases in which adivasi land given to
the 'bhoodanyagna' committee has been transferredto non-
adivasi raiyats,and where pradans (village headmen) have
settled lands on non-adivasis or raiyats from other villages
for small considerations.
Functioning of SAR Courts/Restoration
of Tribal Land
The restorationof illegally alienatedlandhas beenone of the
importantmandatesof the ScheduledArea Regulation1969.
Accordingto governmentrecords,up to 2001-02, 60,464 cases
for restorationinvolving85,777.22 acresof landwere filed out
of which 34,608 cases were upheldinvolving46,797.36 acres
of landandthe rest were rejected.The possessionof landcould
be given only in 21,445 cases involving29,829.7 acresof land.
The SAR courtfor the restorationof triballandhas been func-
tioningin a mostunsatisfactory mannerresultingin thecontinued
alienationof land.Thecourtshavebecomecentresof corruption
and functionmainly to legalise earlierillegally alienatedland
throughcollusiverestorationsuits.Thecompensationis brokered
by the courtitself. The provisionswhich ensurethatthereis no
misuse of the 'chapparbandi'clause are hardly followed. In
identifyingthe "substantialstructure"thatmakesthe land non-
agricultural,the courts accept oral testimonyand rarelyorder
furtherinvestigation.Demandsfor restorationare rejectedon
verysmallandflimsy groundslike the discrepancybetweenthe
measurementof disputedland in the petitionand thatstatedin
therecords,lackof records,etc. Evenif the ordersforrestoration
arepassed,it takesa longtimebeforethe landis actuallyrestored.
4444
The lack of 'amins', police force, personnel,etc, are used as
excuses.Insomecases, in spiteof courtorders,thelanddoes not
get restoredif the personwho has takenit is influential.Another
majorproblemhas been thatthe recordshave been deliberately
destroyed,especiallyin urbanareas.It is also allegedthatSAR
courtshavebeenmannedprimarilyby non-adivasiswho arenot
well conversantwith adivasi customs and customaryrights.
Institutional Alienation
The institutionalalienationfor ostensibly"publicpurposes"
has been very high and some workableestimatesare available
[EkkaandAsif 2000].Thelandstakenunderthispublicpurposes
are bothfor big and mediumprojects(with some rehabilitation
packages where habitations are disturbed) and small land
acquisitionwithouthabitationbeing disturbed(and with only
cash compensation).These projectsinclude industry,mining,
sanctuaries,dams, etc.
Landacquisitionforpublicpurposeandrehabilitation/resettle-
ment has been an issue of agitatingthe adivasisof Jharkhand
as well as otherpartsof thecountry.Due to a numberof disputes
regardingrights (both within and outside a family) there are
reportsof delaysin compensation.Inadequatecompensationfor
land and home structures,callous rehabilitation,virtuallyno
compensationfor the commons,and non-consultativeand non-
participativeacquisitionand resettlementare commonplacein
Jharkhand.More land than requiredhas been acquired.The
misinterpretationof the words 'publicpurpose'anduse of land
acquiredfor purposesotherthanthe ones intended(or notified)
arealso importantissues.The communitiesandtheircustomary
rightshave beenby andlargeignoredin the state.A wide scale
degradationof land due to mining and quarryinghas affected
even those whose lands are not acquiredbut who are affected
bythewiderhealthandenvironmental impactsof theseprocesses.
Existential Realities and Current Challenges
Aftertheformationof the new statenew challengeshavebeen
addedto theexistingissues.Someof themostcriticalchallenges
currentlybeingfacedin Jharkhand arehow to arrestthe process
of alienationof land and land rightsof adivasis,how to make
the process of land acquisitionmore pro-adivasiin particular,
and more pro-peopleof the area in general,how to make the
process of restorationof illegally alienatedadivasi land more
effective and how to restore the rights of the communities.
Besides this, meetingthe genuinedemandfor land for various
economicactivitiesby both adivasisand non-adivasisis also a
challenge.
The currentsituationis complex.On the one hand,alienation
of adivasi land to non-adivasishas declineddue to the rise in
consciousnessand strugglefor land as comparedto the period
from pre-independence onwardsup to the 1980s when a large-
scale alienationdid occur.After 1969, the increasedregularisa-
tion of illegally alienatedland has been primarilythroughthe
SARcourts,the veryinstitutionsdesignedto checktheproblem.
Adivasilandcontinuesto be alienatedfor 'publicpurposes'like
miningand industry,a processwhich will only acceleratewith
the Jharkhand government'snew industrialandminingpolicies
(see George,this issue). The pace of intratriballand transfers
particularly to richeranddominanttribalgroupsfromthepoorer
and 'primitivetribalgroups'(PTGs)has increased,along with
Economic and Political Weekly October 8, 2005
the rise of a new elite and educated class among adivasis, who
are aspiring for self-employment.
All these factors have led to a renewed debate over the land
question. One view, voiced by people like the formerCM Marandi,
is that adivasi land should be freely sold to enable them to take
advantage of market prices. At the minimum, they argue, certain
restrictions should be relaxed, eg, adivasis should be allowed
to sell to non-adivasis in urbanareas, the SPTA should be brought
in line with the CNTA to allow like transfers (eg, non-adivasi
to non-adivasi), the necessary amendments should be made to
allow adivasi land to be mortgaged to any public sector financial
institution other than for the purposes mentioned in the two acts,
conversion of agricultural land to non-agricultural use should be
allowed, and there should be only one act for the whole of
Jharkhand.The other view is that the two acts (CNTA and SPTA)
be preserved as separate since they reflect specific conditions,
that they be made more stringent to prevent alienation of adivasi
land and that they should be amended in the light of PESA to
give the gram sabha control over land, including the right of
restoration.
Given such a multidimensional problem, a multi-pronged
strategy is required to address it. The following are the major
suggestions to meet the challenges:
(1) Legislative measures: A number of amendments are required
in both CNTA and SPTA to plug the loopholes to discourage,
penalise the alienators and to include the provisions of PESA,
1996. Some of these would include adding gram sabha wherever
the DC is mentioned, to enable gram sabha monitoring of trans-
fers, removing the limitation period for restoration of land, fixing
a time limit for the restoration of such land, identification and
restoration of alienated community land like sarna, jaherthan,
etc, and ban on any future transfers.
(2) Formation of an appellate authority and improving the
procedure of restoration: The restoration cases take a long time
due to the number of appeals against the judgments of the SAR
courts allowed underthe present system. Besides, the functioning
of the SAR courts have been far from satisfactory. It is important
that an appellate authority is created with members from the
judiciary, revenue department and ST members.
(3) Time-bound disposal and restoration of cases: Fast track/
mobile courts should be established for the timely disposal of
cases in the districts, where a large number of cases are pending.
After the formation of Jharkhand, the rate of disposal has de-
clined. One of the reasons has been the lack of revenue personnel
to man the courts. For example, whereas earlier there were three
functioning courts in Ranchi, now there is only one. It is also
recommended thata task force at the circle level should be formed
for restoration of land after the restoration orders are passed.
There should be a monitoring cell at district level and state level
for monitoring restoration.
(4) Dissemination of information regarding the procedure for
filing the cases: A number of cases could not be filed because
of lack of knowledge regardingtHieprocedure.The district welfare
department should conduct programmes for the dissemination
of knowledge regarding the procedure and the provisions of
the act.
(5) Women's rights on land: There is considerable difference
in opinion regarding the land rights of women. Women have no
rights of inheritance or ownership of immovable property, which
included the right to bequeath and partition. There has been
considerable resistance from adivasi communities for giving
Economicand Political Weekly October8, 20054445
inheritancerightsto theirwomenfolkas they fear thatthatthis
wouldacceleratetheprocessof alienationof adivasilandsthrough
marriagewith non-adivasis.The argumentis thatthe traditional
society has customaryprovisionsfor safeguardingthe rightsof
women. The communityprovides social security to women
particularlywidows and unmarriedgirls. The otheropinion is
thatthey shouldbe given full-fledgedpropertyrights.The rise
in demandfor propertyrightshas-comedue to failuresin some
cases by thecommunityto protectwomen'sinterests.Inthelight
of MadhuKishwar'scase (on behalf of a Ho woman)wherein
the SupremeCourthad held that the demandfor these rights
shouldarise from withinthe tribalcommunitiesthemselves,it
is importantthatwiderdiscussionsbe initiatedon thisissuewithin
the adivasisocieties. However,two suggestionsare worthcon-
sideration.
- A numberof incidenceshavebeenreportedwhenthe landwas
alienatedwithoutthe knowledgeof the female membersof the
family.Whenthe familybecomeslandless,womenandchildren
haveto bearthe brunt.Thejoint ownershipof wife andhusband
on land can be made statutoryto preventsuch alienation.
- Traditionally,widows have a rightto use the land for main-
tenanceduringtheir lifetime but after their death, in the case
of childlesswidowsit passesto thenearestmaleagnates.Insome
cases it has been reportedthatthe heirsconnive with the local
'ojhas'and declarethe widows witches,some times leadingto
a physicalelimination.To preventthis,a clauseshouldbe added
thatin case of deathof a childlesswidow the propertybe vested
with the communitywho will distributeit to the landlessin the
village. As the direct beneficiaryof such deaths cannot be
predetermined,the dangersof physical eliminationwould be
reduced.
(6) Acquisition for public purpose: The largest amount of land
has beenacquiredfor publicpurposeandpracticallyhalfof this
has been takenfrom adivasis.In comparison,only 25 per cent
per cent of adivasis were rehabilitated.In a large numberof
instancesno compensationwas paidfor decades.The use of the
principleof eminentdomainto acquirelandthusseems to many
to be grossly unjust.It is importantthat the consent of the
communitymust be taken before undertakingthe acquisition
underthe provisionsof the PESA 1996. There should be no
displacementwithout prior acquisition;the resettlementand
rehabilitationshouldbe for the entirepopulationliving within
the ecosystemacquiredand not just the losers of privateland;
the arearequisitionedshouldbe subjectedto social audit;reha-
bilitationshouldcover social, religious,economicand psycho-
logical aspects;and the land losers shouldbe given a stake in
the commandareasand the industriescreated.It was the duty
of the stateto ensurethatthe qualityof life of the displacedwas
not only protected,but it should also be augmented.
In Jharkhand,in many areas the land acquiredfor public
purpose has remainedunutilisedbecause either the industry
becamesick or morelandthanrequiredwas acquired.All such
landshouldbeidentifiedandreturnedbackto theoriginalowners
proportionately for which necessaryamendmentscan be made
in the LandAcquisitionAct as well as in the Coal BearingArea
Act.
(7) Upgrading/updating of land records: One of the reasons for
non-restorationof illegally alienated land has been that the
recordsare either missing or they have been mutilated.This,
particularlyin the urbanareas,makesit difficultfor adivasisto
provetheirclaim on land. It is importantthatthe land records,
which are kept at the district and the circle level, are updated and
computerised.Some of these recordsare in Patna.The government
of Jharkhandshould try to get these records from Patna.
(8) Development of agriculture and irrigational facilities:
One of the basic reasons for individual land alienation has been
the non-sustainability and low returns from agriculture. As a
result, adivasi farmers are unable to bear even a moderate shock
and fall into debt and mortgage land. The proportion of irrigated
area is very low and almost 90 per cent of the area is
monocropped. An increase in irrigation facilities would reduce
the need for a non-institutional credit which is a major source
of alienation.
(9) Enactment of law against usury: There have been cases in
which land banks and other banks provided institutional credit
to improve agriculture. The recovery of the credit was initially
very sluggish creating a general impression that the loans need
not be paid. But recently a special drive has been undertaken
to recover loans, for which the adivasis have had to alienate land.
In some cases the interest has been three to four times more than
the principal amount. In a few cases, it was reported that the
adivasi was not aware of the loan, which could have been
contracted by his father or may have been altogether benami.
A law needs to be passed that in no case should the interest exceed
the principal amount for institutional credit. This is going to help
all categories of farmers.
(10) Role of governor: As per the provisions of the Fifth Schedule
of the Constitution the governor has to play an important role
in prevention of land alienation. Unfortunately a number of
Governors have not taken enough steps in this regard. There
seems to be a general confusion regarding the role of the gov-
ernors. It is importantthat the governor's secretariathas a special
cell which can prepareits own reporton the land alienation. This
can put an additional pressure on the government.
(11) Measures to fulfil short-term credit needs: Some effective
measures are required to meet the small short-term needs of the
tribes to prevent mortgages and alienation of land. For this, the
formation of self-help groups (SHGs), grain golas and seed banks
for grain and seed loans, should be encouraged.
(12) Initiation of social reformsand social consciousness amongst
the community:In some cases. alcoholism and gambling has been
the cause of alienation of land. The cockfight, 'habba-dabba'
(a form of gambling) and drinking is quite common in the village
markets. The local traders/non-adivasis/mahajanshave used this
weakness to alienate the land. In a very limited number of cases
it has been reportedthat land is alienated to meet the fines imposed
by the community. Some social reform movements could restrict
such alienation.
To sum up, land alienation has been an importantissue plaguing
the tribal areas for almost two centuries. Recent studies indicate
that the pace of alienation has declined primarily due to the
consciousness and struggle of the tribes. While the need to arrest
alienation is now recognised. new threats have emerged, includ-
ing class differentiation within the adivasi community. The basic
issue remains that the illegally alienated land of the tribes should
be restored to them, the alienation of further land restricted and
a fresh approach adopted towards acquisition of land for public
purpose so that the tribes are not victims, but partners in the
process of growth. I3i
Email: rameshsharan@rediffmail.com,
rameshsharan@sify.com
4446
Notes
1 In collusive restorationsuits, both sides agree that the land was alienated
before 1969 or 30 years previously,whereuponit is legalised by the court.
Chapparbandiinvolves the conversion of agriculturalland into non-
agriculturaluse by declaring it homestead land and unfit for cultivation.
This usually requiresthe collusion of governmentofficials. Once land is
converted to non-agriculturaluse, it can be freely sold. 'Sada patta'
involves getting a sale deed writtenon ordinary(sada) paper instead of
registeredon stamp paper.Non-adivasi men marryadivasi women and
buy land in their names.
2 'Badlanama'is an exchange of land with the permissionof the DC. This
exchange is to be only between 'raiyats'of the same village or contiguous
villages, and of similar value. However, it is used to exchange lands in
rural and urban areas.
References
Bhatia, M S (1997): 'Chotanagpur Tenancy Laws: Plugging the
Loopholes', Bulletin of the Bihar Tribal WelfareResearch Institute,36,
August.
Bihar VidhanMandalJoint Committee(1998): Rajya Mein Bhuni Ghotale
ki Janch, Bihar Vidhan Mandal.
CSD (1997): 'A Study of Land Alienation of Tribes in Dumka and
Ranchi Districtsof Bihar', Council for Social Development.New Delhi.
Ekka,A and M Asif (2000): 'Development Induced Displacement and
Rehabilitationin Jharkhand,1951-1995: A Data Base on Its Extentand
Nature', Indian Social Institute, New Delhi.
GOI (2003): 'Report of the Expert on Prevention of Alienation of Tribal
Land and Its Restoration',submittedto ministryof ruraldevelopment,
government of India.
Gupta, K L (1977): 'Bihar' in S N Dubey (ed). Land Alienation and
Restoration of Adivasi Communities in India, Himalaya Publishing
House, Bombay.
Iyer, K G (1993): Tribal Land and Forest Question in Bihar', The
Administrator,38 (2), April-June, pp 73-102.
Kumar,Rajeev (1995): 'The InspectionReporton the Functioningof SAR
Courts in Ranchi' (Hindi) unpublished.
Maharaj,R N and K G lyer (1982): 'AgrarianMovement in Jharkhand'
in N Sengupta(ed), Fourth WorldDynamics:Jharkhand,AuthorsGuild
Publications.
Oraon, B (1992): 'Report on Land Alienation in Chotanagpur and
Santalpargana',unpublished manuscript.
Oraon, P C (1993): A Report on Problem oj Land Alienation of Tribals
in Chotanagpur and Santalpargana, Bihar Tribal Welfare Research
Institute, Ranchi.
Sachidananda(1972): 'The Tribal Situation in Bihar' in K S Singh (ed),
TribalSituationin India, IndianInstituteof Advanced Studies, Shimla.
Sharan,R A, K Singh and S L Batra(1999): 'Land Alienationot Adivasis
in the JharkhandRegion of Bihar:Process and Pattern',Social Change,
29, (3 and 4), pp 146-70.
Sinha,S P (1968): TheProblemsof LandAlienationof TribalsIn and Around
Ranchi (1955-1965), Bihar Tribal Welfare Research Institute, Ranchi.
- (1990): Final Report on the Land Alienation in Chotanagpur and
Santalpargana, Bihar Tribal Welfare Research Institute, Ranchi.
Sinha, B K (1993): 'Alienationof Landin Chotanagpurand Santalpargana',
The Administrator,38 (2), pp 103-24.
Thakur. I N (1977): 'Bihar' in S N Dubey (ed), Land Alienation and
Restoration of Adivasi Communlitiesin India, Himalaya Publishing
House, Bombay.
Vidyarthi,L P (1969): CulturalConfigurationof Ranchi.Basu andCompany,
Calcutta.
Economic and Political Weekly
Available from
Star News Agency
Mahendra Chambers, Magazine Market,
146, D N Road, Mumbai - 400 001
Economic and Political Weekly October 8, 2005