Close to about 10 pm on November 16, Revenue and Disaster Management Minister Sudam Marndi took to micro-blogging site X and hosted a 25-word post to announce that the proposed ‘Amendment to Regulation-2 of 1956 regarding transfer of tribal lands’ has been withheld.
Two days back, on the eve of Janajatiya Gaurav Divas, the Odisha Cabinet had approved a recommendation of the Tribes Advisory Council (TAC) to amend the Regulation-2 of The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956.
As per the proposed amendment, a member from the scheduled tribe (ST) can gift, exchange for public purposes or obtain loan by mortgaging a plot of land in a public financial institution for agriculture, construction of residential house, higher studies for children, self-employment, business or establishment of small scale industries or transfer it in favour of a person not belonging to ST community for these purposes.
To sell their land, members of ST communities will have to obtain written permission from the sub-collector. If the sub-collector declines to give permission, an ST can appeal to the collector within six months, whose decision shall be final.Six decades back when the Odisha government brought out regulation, now known as Regulation No 2 of 1956, the idea was to protect the land rights of the scheduled tribes.
However, the seemingly forward-looking move - now-withheld - which sought to give tribals flexibility to use their land for personal purposes has landed the Odisha government in a quirky situation and prompted it to put the plan on pause.
REGULATION 2 AND AMENDMENTS
The Orissa Regulation 2 of 1956 was enacted to control and check transfer of immovable properties of tribals in Scheduled Areas of the state. It put a complete ban on transfer of land belonging to ST persons to non-ST persons.
The last amendment to the act was made in 2002 which allows an ST person to transfer his immovable property only to a person belonging to the tribal community besides mortgaging land to any public financial institution ‘only for agricultural purposes.’ Besides, a member of the ST shall not transfer any land if the total extent of his land remaining after the transfer is reduced to less than two acres in case of irrigated land or five acres in case of non-irrigated land.
In 2009, the Revenue and Disaster Management department - the nodal department for management of land resources in the state - again proposed to amend the Regulation 2 for alienation of tribal lands on the ground that due to the total ban on tribal to non-tribal land transfer, ST members are unable to get loans from financial institutions for construction of houses, higher education of children, self-employment etc.
Since obtaining a loan by mortgage of land with a public financial institution is only limited for agriculture purposes, the financial institutions are not entertaining any other loan applications to deserving ST persons, it reasoned. TAC, whose primary role is to advise the governor on welfare and advancement of the STs, approved it. However, the proposal was rejected by the then President Pratibha Patil.
Nine years later in 2018, the Revenue department proposed another amendment to allow STs to mortgage some portions of their land. The matter was placed before an inter-ministerial committee headed by the then revenue minister and later approved by the TAC. However, it was not sent for Presidential assent.
At this year’s TAC meeting on July 11, the department again proposed substituting sub-section (i) of Section 3 of Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956, to allow STs to sell their land to non-tribals. It was also approved by the TAC to be followed by the Cabinet’s move to give a go ahead.
DECLINING LAND HOLDING
The justification for the need to amend the law for financial autonomy of STs comes at a time when decreasing tribal land holding in Odisha has raised concern. In April, the CAG in its draft report on ‘Land Management in the Scheduled Areas of the State’ pointed out that land holding in 13 scheduled districts - Balasore, Mayurbhanj, Sundargarh, Koraput, Malkangiri, Nabarangpur, Rayagada, Sambalpur, Kandhamal, Keonjhar, Ganjam, Gajapati and Kalahandi - is on the decline.
In a 10 year span between 2005-06 and 2015-16, tribal land holding (used for agricultural production entirely or partly) decreased to 15.38 lakh hectare (ha) in 2015-16 from 17.48 lakh ha in 2005-06, registering a decrease by 12 per cent. There were 14.07 lakh land holders in 2005-06 which marginally
increased to 14.61 lakh in 2015-16.
Interestingly, during the same period, the audit found that land holding of both SCs and others increased in 2015-16 compared to 2005-06. “In case of tribal population, despite implementation of Forest Right Act since 2005-06 and restriction on sale of their land to non-ST persons, decrease in their land holding is suggestive of the fact that a larger chunk of their land might have been acquired by government for public purpose,” it pointed out.
CAG also conducted physical verification of the lands and revealed shortcomings in their ownership and maintenance. Under the act, if a non-tribal had acquired a land belonging to an ST between October 4, 1956 and September 4, 2002, he/she had to furnish a declaration to competent authority stating circumstances and manner of possession of land. The declaration had to be furnished within two years from September 4, 2002. In case, the declaration is found to be unsatisfactory or the possessor fails to furnish the declaration, the agricultural land should be given back to the original tribal owner.
The audit report revealed in absence of fixation of time limit for disposing of cases filed under the act, of the total 2,134 pending cases, 1,347 cases remained pending beyond 10 years and 391 cases were pending for six to 10 years. In 20 test-checked cases involving 66.57 acre of land, despite receipt of enquiry report from the tehsildar between July 2008 and September 2021, the cases had not been disposed of by the sub-collector concerned.
In these 20 cases, 10 government organisations were found to have encroached upon 13.44 acre for construction of school, medical college and hospital, check dam, electric sub-station and road. Besides, seven private organisations usurped 52.12 acres for mining and other activities, and three individuals encroached 1.01 acre for cultivation.
AMENDMENT VIS-À-VIS PESA ACT
Land rights activists say the amendment is in contravention of the PESA Act, 1996. Once an area is declared as a scheduled area, it attracts PESA. Under the act, all the community resources belong to gram sabha and any land transfer is not possible without its consent.
Section 4 (m) (iii) of the PESA Act,1996 gives gram sabha the power to not only prevent alienation of land but also to restore illegally alienated land. Besides, the legislature of a state is barred from making any law inconsistent with the features given under Section 4 of the PESA Act.
“So, this proposed amendment contravenes the existing PESA Act which is a Central law. It is surprising how the Law department did not point this out before the Cabinet approval to the proposed amendment to Regulation 2,” said Giri Rao, director, Vasundhara, a Bhubaneswar-based not-for-profit working on tribal land rights. He pointed out that no gram sabha was consulted about the proposed amendment.
BATTING FOR CHANGE
However, MLAs and MPs, who are members of the TAC, throw their weight behind the move on the ground that economically-weaker tribals who have no assets other than their land are unable to sell it to meet emergency capital needs.
Rayagada MLA Markanda Muduli said banks do not sanction loans to tribals willing to mortgage their land because of their low value as compared to general land. “The land has low value because these can only be sold back to tribals. There have been instances in the past when tribal land has been sold to non-tribals illegally for industrial and mining purposes. If the sale is legalised, it will only benefit tribals who are unable to do so due to the stringent law,” he added.
Activists, on the other hand, feared this will only open the floodgates unless strong checks and balances are put in place. “There have been multiple cases of illegal occupation of tribal lands in the past. Even today, taking advantage of their simplicity, land mafia, real estate dealers/owners find ways to take over tribal land. Once tribal to non-tribal land sale is allowed, the STs will be left with no land five years down the line,” said Rao.
Former bureaucrat and convenor of ‘Ama Kotia’ Gadadhar Parida agrees. At a time when the state government provides BSKY benefits to all, free education at school-level and sponsorship/scholarship/stipend to students pursuing higher education, the need for tribals to sell their lands raises questions. “If banks do not provide loans to STs, the government can bring in arrangements. If it can give interest-free loans to SHGs and collateral free loans to farmers for agriculture, similar arrangements can be made for tribals for their self-employment or business,” he suggested.
NEED FOR RELOOK
Former chief secretary and Congress leader Bijay Patnaik said the proposed amendment needs a relook by TAC and government. “In what form will this amendment be brought out, what are the compelling reasons behind it and the pros and cons - many questions remain unanswered,” he said.
Patnaik felt there was no threadbare discussion on this crucial amendment by the TAC prior to the Cabinet approval. “Now that it has been put on hold, the TAC members have to re-examine it thoroughly,” said the bureaucrat-turned politician who had initiated a tribal land restoration drive during his tenure as the CS. The conflict between Regulation 2, 1956 (which is older than PESA) and PESA Act, 1996 also needs to be studied, he added.
Sources in the ST and SC Development department said the amendment to Regulation 2 requires Presidential assent. “Cabinet approval is one step towards sending it to the Governor and then to the President for assent. No amendment can be effected without that. Now that the move has been put on hold, the matter will be discussed again in the TAC and then, the proposal will be revisited,” an official said.