Status Report : Land Rights And Ownership In Orissa

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STATUS REPORTLand Rights and Ownership inAugust 2008

The project ‘Social Mobilisation around Natural Resources Management for Poverty Alleviation’ waslaunched in December 2003 by the Ministry of Rural Development (MoRD), Government of India andthe United Nations Development Programme (UNDP). Supporting the Government of India’scommitment to expand self employment opportunities for the poor, the project specifically targetedpoor women and marginalised communities and was implemented through 17 NGO partners in 11districts across three states – Jharkhand, Orissa, and Rajasthan.Access to land is acutely important in rural India, where the incidence of poverty is highly correlatedwith lack of access to land. This study focuses on the situation of land rights and ownership in thestate of Orissa, with a focus on the landless, women and people from the Scheduled Tribes. It tracesthe history of land reforms in Orissa followed by a comprehensive analysis of the impact of existingland legislation, the various land distribution schemes of the state government and the Forest RightsBill (2006). The study also examines issues of land acquisition, transfer and alienation linked withindustrialization, mining, development induced displacement and commercial agriculture. Finally,the study provides concrete suggestions to improve access of the poor to land and highlights theneed to arrest processes that are promoting land alienation.The status report has been prepared by Mr. Sanjoy Patnaik, Director, Research and Advocacy, at theRegional Centre for Development Cooperation (RCDC), Bhubaneswar, Orissa. Mr Patnaik has workedextensively on land rights as well as on trade and governance issues related to forest and agriculturalproduce. RCDC is a development support group that works towards strengthening communityinitiatives and policy environment for sustainable development of local natural resources in Orissaand adjoining states of Central India. Mr. Harshvardhan, Project Associate, GOI-UNDP Project, hasfacilitated and provided back-up support for the study. Ms. Judith Smith, Independent Consultant,has provided editorial support and coordinated print production.The views expressed in this publication are those of the author and do not necessarily representthose of the Government of India, the United Nations or UNDP. Please do not quote or cite withoutpermission.Copyright UNDP 2008All rights reservedManufactured in India

CONTENTSIntroduction71. History of Land Settlement, Reforms and Legislation in Orissa102. Land Ownership – Status and TrendsImplementation of Land Reforms in Orissa Distribution of Ceiling Surplus and Government Wasteland Prevention of Transfer of and Restoration of Land Distribution of Land to the Homestead-less Distribution of Bhoodan Land among the Landless Distribution of Land Passbooks141415181920223. Land Rights for Tribals, Other Forest Dwellers and Women in Scheduled AreasForestland Rights to Tribals and Other Forest DwellersWomen and Land RightsLand Rights and Ownership in Scheduled Areas232325284. Land Acquisition, Transfer and AlienationDevelopment Induced DisplacementCommercial Agriculture and Associated Land Alienation3333475. Changing Nature of Landholding Status among Weaker SectionsLandholding Status among the Weaker SectionsConversion of Agricultural Land into Non-agricultural PurposeImpact on Food Production525257586. Current Issues, Challenges and Suggested Actions60Annexures1: District-wise Figures on Landless and Available Land2: Land Distribution under Bhoodan Land3: District-wise Bhoodan Land Position4: Land Utilisation Statistics 2004-20055: Extent of Tribal Land Alienation in Some States6667686970References71

STATUS REPORT: Land Rights and Ownership in Orissa6

IntroductionOne of the major problems for the vast majority of the rural population in India is the inadequate oralmost non-existent access to fertile land. Rural poverty in India, as we all know, has its roots in theabsence of access to land. Secure access rights to land are also an imperative for food security. Withoutland security, efforts to use natural resources in a sustainable manner may not be fruitful1. Accordingto recent statistics from the Food and Agriculture Organization, the majority of the world’s hungry –508 million out of a total of 800 million people – live in Asia, where hunger is virtually synonymouswith the small and marginal farmers and landless.The skewed nature of land distribution in India is reflected in the fact that approximately two percentof landholders2 own 25 percent of the land whereas 98 percent of the landholders3 own just 75percent of the land. Around 43 percent of rural households in the country are landless. In order tobring a balance and bridge the gap between the poor landless and the rich landed peasantry, anumber of land reforms legislations were promulgated after Independence. The State of Orissa alsoinitiated a number of legislative reforms to improve access to land.The Orissa Land Reforms Act 1960, was regarded a watershed in giving land rights to the tenants. Itwas meant to go beyond the ideological goal of ‘land to the tiller’ and achieve the more pragmaticobjective of promoting proper and effective utilization of land in an effort to increase food productionin the state - and the country, by extension. Though a number of progressive legislations werepromulgated in Orissa after independence, their implementation remains a major concern. The LandCeiling Act was enacted in 1974 with the intention of bringing economic and social justice amongstthe weaker sections of the society. Its objective was to acquire surplus land by the Government andredistribute it among landless to improve the economy and living standards of the weaker sectionsof society. As per ceiling surplus rules, land up to 0.7 standard acres was allotted to the landlesspersons for agricultural purpose. The ceiling surplus operation failed to yield the desired result becauseof lack of actual physical possession by the beneficiary, unavailability of record of rights, and poorland quality making it almost impossible for him/her to cultivate the land and at times even identifyit. A number of beneficiaries have pattas for ceiling surplus land allotted to them but the land is stillunder possession of the previous owners.The government responded to repeated appeals from tribal and civil society organizations, by comingout with a campaign called Mo Jami Mo Diha (My Land and My Homestead land), launched in 2007 toensure possession within a stipulated time. It is generally believed, however, that the amount ofillegal land transfer is much more than what is reflected in government records and the process ofensuring actual possession in the above cases has not been an unqualified success.1The distribution of land tenure is extremely uneven: even though 75 percent of the world’s poor and undernourished live in rural areas andtheir food supply, according to the Food and Agriculture Organization, could be significantly improved by giving them access to land, half theworld’s arable land is owned by only 4 percent of the world’s landowners - most of whom are either large estate owners or multinationals.2Who have a landholding of more than 10 hectares.3Who have a landholding of less than two hectares.7

STATUS REPORT: Land Rights and Ownership in OrissaWith regard to land availability and number of landless, coastal and tribal Orissa present a veryinteresting trend. If the coast is facing the problem of increasing landlessness and less land availablefor distribution with more and more land getting converted to non-agricultural purpose, in tribalOrissa it is the other way around, i.e., less landless and more land for distribution. However, for somereason landlessness still continues in tribal Orissa. Additionally, land that has been received in donationunder Bhoodan remains either undistributed or has been reoccupied by the previous owner.Women’s rights over land is a crucial issue for any developing society as it is directly linked to right tofood, work and other human rights. The denial of inheritance of land rights especially in a patriarchalsystem has contributed to the subordinate status of women. The Government of Orissa has decidedto distribute all such land under ceiling surplus to landless people with high priority being given tolandless widows and unmarried women up to 30 years of age, as well as to joint patta for the husbandand wife. Still, significant gaps exist between women’s land rights and their actual ownership andpossession.The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006,provides for recognition and vesting of forest rights to Scheduled Tribes in occupation of forest landprior to December 2005 and to other traditional forest dwellers who have been in occupation offorest land for at least three generations, i.e., 75 years, and up to a maximum of 4 hectares. As per theAct, the Gram Sabha is the competent authority to initiate the process of determining the natureand extent of forest rights of individuals/community. There are many misconceptions with referenceto this Act on the part of both the tribals and other forest dwellers and on the part of governmentofficials.With all elaborate provisions of land entitlement under different schemes and Acts, the threats ofland going out of the hands of the farmers, still remains a major concern. The current form and modeof industrialisation with special focus on Special Economic Zone may threaten laws and policiesprotecting rights within the scheduled areas. There have already been legal initiatives to dilute thestringent land transfer regulations, which may be detrimental to the people. On the one hand, thereare set of laws that protect the rights of the people, while on the other hand some new ventures andpolicies prioritise exploitation of natural resources at the cost of food security.Orissa is one of the mineral rich states of the country and recently it has signed numerous accordsfor private investment in the mining and industrial sector. This is expected to cause massivedeforestation in the ecologically fragile coastal areas and drought prone western and southwesternOrissa, and resultant loss of farm land influencing both livelihood and food security as well as themicro and macro environment.The growing popularity of cash crops in Orissa has not resulted in any substantial land use changebut the selection of crops and pattern has a serious repercussion on the land ownership and foodsecurity situation, especially in the tribal areas. On the land front, large tracts of tribal – both pattaand forest land – are being leased out to traders from adjoining states for commercial farming. Theland when it comes back to the tribals after the lease period is over is almost barren and hardlycultivable due to excessive use of fertilizers and pesticides. The incessant growing of cash crops is8

Introductioninvading the area used for growing traditional varieties of cereals, millets and pulses. Production ofthese varieties has already gone down leading to a price hike with food scarcity and nutritionalimbalance to follow.Land distribution to the landless and ensuring their physical possession has remained a major areaof concern. Besides, land of all categories is under tremendous stress because it is being slowly thoughconsistently acquired for non-food use. This has an adverse impact on the small and marginal farmersbecause it results in the gradual loss of land. If loss of agricultural land is a matter of concern incoastal Orissa, in the tribal hinterland, it is the diversion of forests that is causing loss of livelihoodsand ultimately forced or voluntary eviction. Interestingly, the field is being set through legal andadministrative initiatives in the form of changes in the Orissa Land Reforms Act and quicker andsmoother forest clearance processes to make such diversions easier. Moreover, the invasion of cashcrops in the western and south-western parts of the state is constantly influencing the food securitysituation - non-edible cash crops take the place of food grains. This trend is likely to create a foodcrisis if it is not prevented soon.While there are many suggestions to improve the situation, state Governments can make a start bysetting up special Land Tribunals to expeditiously dispose of cases related to land distribution andentitlement within a specified time limit. Monitoring cells may also be set up to watch the disposal ofcases involved in litigation. Finally, the state government needs to seriously review issues of landacquisition, transfer and alienation linked with industrialization, mining, development induceddisplacement and commercial agriculture.9

STATUS REPORT: Land Rights and Ownership in Orissa1. History of Land Settlement, Reforms andLegislation in OrissaThe chapter discusses different land revenue assessment systems prevalent in India, particularly inOrissa both during the pre and the post colonial phases. It also discusses the provisions and impactsof existing land legislations of Orissa, besides the history and objectives of land reforms in the state.The colonial administration came to Orissa towards the late 18th and early parts of the 19th century.Under British rule it was divided into regions governed by other provincial administrations: Bengal(later, Bihar since 1912), Central Province and Madras Presidency. With the gradual expansion of BritishRule, more and more areas came under the Raj and a number of land revenue assessment systemsevolved as per the status of the individual payee4. As a result, different revenue systems and tenancylaws prevailed in different parts of the present-day state of Orissa. The two most common systems ofrevenue assessment prevalent then were – Zamindari and Ryotwari. The Zamindari system existed indistricts like Cuttack, Puri, Balasore and Angul, whereas the Ryotwari system existed in one part ofSambalpur district5. In addition there were 24 princely states, which were controlled by the Britishthrough a subsidiary alliance, under which the princes had the freedom to decide their internaladministration as long as they regularly paid tributes to the colonial authority.The revenue and tenancy laws in the State varied. The Bengal revenue system was implemented indistricts like Balasore, Cuttack and Puri (vide The Bengal Rent Act, 1859) and was replaced by TheBengal Tenancy Act, 1885 and then The Orissa Tenancy Act which was introduced in 1913. Manyintermediary forms of tenure developed in the Zamindari areas along with the growth ofsharecropping. The Madras revenue system was exercised in Koraput, Ganjam and parts of Phulbonidistricts as per the Madras Estate Land Act, 1908. The system applied for both the Zamindari andRyotwari areas; in the latter, the rights of the landholders were governed by executive instructions,whereas in the former, landholders could freely sublet land to tenants who however, enjoyed noprotection under the law. The Central Province revenue system (vide Central Province Land RevenueAct 1881/1917 and Tenancy Act, 1898/1920) was prevalent in Sambalpur and Nuapada districts. Theprincely states had separate land settlements and revenue regulations under the Government ofIndia Act, 1935. There was no law to protect the interests of tenants. However, the Orissa States Order1948 conferred occupancy rights on tenants (Behuria: 1997).4The systems had evolved according to the varying degree in which in different parts of the country, tribal occupation of territory hadsuperseded the rights of the ruler, or full proprietary rights had been granted to the individual.5Under the Zamindari system, land was held as an independent property and revenue was assessed on the individual or community thatowned the estate. The Zamindars (rich landlords) organised their own revenue collection agencies and often involved more levels ofintermediaries. Under Ryotwari (peasant proprietary) the land belonged to the British Crown and was held in a right of occupancy, bothheritable and transferable, by individuals. The revenue was assessed on individuals who were the actual occupants of smaller holdings and thiswas collected by the village headman whose office was hereditary.10

History of Land Settlement, Reforms and Legislation in OrissaLand legislation in Independent India had the objective of reforming the exploitative and iniquitoussystem of land revenue assessment that had existed during the colonial regime and these legislationswere motivated by the concern to provide ‘land to the tiller’. To confer ownership rights on the tenants,the State realised the need for the abolition of intermediaries and the provision of security of tenureto tenants. Regulation of rent, de-concentration of land holding through the fixation of land ceilingswere some measures used to push forward the reforms. Though land tenure reforms was a nationalmandate, land was classified under the State list in the Constitution and states were allowed to legislateon the land rights issues in order to address local requirements/peculiarities. During the last sixdecades, the State government has promulgated a number of progressive legislation to establish alegal framework for land reforms. Some of these are analysed in Table 1.Table 1: Main Provisions and Impact of Land Legislation in OrissaNameYearProvisionsImpactOrissa EstateAbolition Act1952Abolition ofintermediaries.No provision protection fortenants.Vesting of all land rights inthe state.Eviction of tenants as thezamindars were allowed land,less than 33 acres, forpersonal cultivation.Agricultural land less than33 acres to remain withthe intermediary forpersonal cultivation.Orissa LandReforms Act(Amended in1965, 1973 and1974)1960Permanent, heritable andtransferable rights in landfor the tiller.Ban on leasing of landexcept under specialconditions (in 1972).Under adverse possession,land in continuouscultivation for 12 years ormore by a person otherthan its owner shall passto the cultivator.Rent not to exceed onefourth of the gross produce.11Abolition of intermediariescould not be completed until1974.Delay in the enactment andactual implementation of theAct provided sufficientopportunities for largelandowners to escape ceilingrestrictions.By explicitly banningtenancy, the law is unable toaddress the problem ofshare-cropping.No provision was made torecord concealed tenancies.

STATUS REPORT: Land Rights and Ownership in OrissaNameYearProvisionsImpactCeiling on individualholdings at 33 standardacres-later reduce to 20 (in1965), and to 10 standardacres (in 1972).Orissa Survey andSettlement Act1958Different laws relating tosurvey, record-of-rights andsettlement amended andconsolidated into oneuniform law.Establishment of uniformthough defective systemsrights of tenants not recordedduring settlement operations.OrissaConsolidation ofHoldings andPrevention ofFragmentation ofLand Act1972Fragmentation of landdeclared illegal.Little impact on landfragmentation.First choice of transfer toadjacent farmer.Occasional land sales butrarely to adjacent farmer.Consolidation of landholdingsignored by farmers in westernOrissa because of undulatingterrain.Orissa Prevention 1972of LandEncroachment Act(Amended in1982)Unauthorised occupation ofgovernment land prohibited.Penalties on encroachers tobe followed by eviction.The 1982 amendment forsettlement of two (lateramended to one) standardacres of 'unobjectionable'land (i.e. governmentwasteland) with 'eligible'beneficiaries (e.g. landless).Disregard of the Act withwidespread encroachment onboth government andcommon lands, often bypowerful groups.Penalties too low to act as adisincentive to encroachers.The 1982 amendment not a'proactive' right- encroachercannot 'apply' to beregularised as act ofencroachment is regarded asillegal in the first place. OnlyRevenue Inspector can initiateregularisation of righ

Orissa it is the other way around, i.e., less landless and more land for distribution. However, for some reason landlessness still continues in tribal Orissa. A dditionally, land that has been received in donation under Bhoodan remains either undistributed or has been reoccupied by the previous owner.