29 Land alienation-extent and causes

Dr. Abhay Chawla

Contents:

1. What is Alienation?
2. What is Land Alienation?
3. Extent and Causes of Land Alienation
4. The Institutional Alienation
5. Other Cause of Land Alienation
6. Conclusion Summary

Learning Objectives:

• To understand what Alienation is and what Land Alienation is;
• To understand the extent and causes of Land Alienation in India;
• To understand how the state willingly or unwillingly takes part in land alienation; and
• To understand most of the causes of land alienation and how the unique interplay of causes and their interrelation which play against the marginalized.

1. What is Alienation?

The word “Alienate” means to make estranged or unfriendly. Collins dictionary defines it as the state of being an outsider or the feeling of being isolated, as from society. Alienation is connected in the

subject context of sociology, economics, psychology, political science as well as philosophy. All contexts have the human being as their central protagonist.

In the field of sociology the concept of Alienation has been discussed by theorist like Durkhein(1951, 1984), Fromm(1941), Marx (1846, 1867) etc. “A condition in social relationships reflected by a low degree of integration or common values and a high degree of distance or isolation between individuals, or between an individual and a group of people in a community or work environment”. (Ankony, 1999) In law alienation is the voluntary and absolute transfer of title and possession of real property from one person to another. To alienate includes to dispose of, to divest onself of an item of property. Both these  words  have  been  used  an  English  equivalents  to  the  French  word aliener. 1 Finally Steward(2006)  defines  alienation  as  the transfer of property,  as by conveyance or will, into the ownership of another

2. What is Land Alienation?
Alienation of land could be understood in two different contexts in law

• 1) When a society, culture, colonizer or a state takes over the land of its original inhabitants, it is said that original inhabitants have been alienated from their lands. For example for tribal lands as per the guidelines of the Government of India sale and mortgage of lands to non-tribal people are considered as alienation of lands. Even leasing out lands against loans to non-tribal people are considered as alienation of lands, on the assumption that the tribals are unable to redeem their debts and get back their lands
• 2) Alienable land in property law is land that has the capacity to be transferred by mortgage or by deed. Property is generally deemed to be alienable by its owner unless there were restrictions placed on it when it was acquired. Therefore, in property law, mortgaging or selling real property is also called the alienation of land.

Cochrane (1974, p.125) writes,

A fundamental assumption in modern development has been that land could and should be conveyed and held by individuals. This has frequently resulted in the imposition of an alien legal system in areas where traditional tenurial norms still have a good cultural fit, causing widespread resentment among traditionalists over the lease and sale of land

Dash (2004, p.295) in his Social and Cultural Anthropology states:

Most of the tribes in India recognize two types of property; private or personal property and community property.

The cultivable land, pasture ground etc belong to the community. The ordinary villager exercise unfructuary rights over these landed property. The ownership of the land is governed by a set of customary rights. The individual ownership is also predominant in certain regions of tribal India.

Thus, Cochrane feels that the anthropologist are often placed in the role of honest broker between traditionalist property owners holding their land as a group and economically progressive individuals wishing to lease, purchase, or otherwise use these lands (p.124).

3. Extent and Causes of Land Alienation

Literature on tribals in India would reveal that one of their longstanding grievances has been the alienation of their land.

The Ministry of Rural Development of the Government of India in its 2007-2008 Annual Report under the subheading Prevention of Alienation and Restoration of Alienated Tribal Lands states:

Reports received from various States, indicate that 5.06 lakh cases of tribal land alienation have been registered, covering 9.02 lakh acres of land, of which 2.25 lakh cases have been disposed off in favour of tribals covering a total area of 5.00 lakh acres. 1.99 lakh cases covering an area of 4.11 lakh acres have been rejected by the Courts on various grounds”.

The subsequent reports have no mention of the aforementioned subheading and hence there is no way of knowing if the tribals received the land and if the rejected cases were appealed for in higher courts. Also there is no way of knowing if any more land has been alienated.

Rupavath (2009) was of the opinion that Land Alienation among tribals is not a mere structuralist – legalist problem, but a much more deeply connected phenomenon full of contradictions related to the existing socio-economic order.

Rao(1998) in his paper on tribals of Andhra Pradesh writes

According to a report by the department of tribal welfare, out of 18,48,000 acres of land in the agency areas, non-tribals hold 7,53,435 acres, i e, about 48 per cent). The non-tribal holding is 52 per cent in Khammam district, 60 per cent in Adilabad, 71 per cent in Warangal and the same are the figures in West Godavari district. The very presence of non- tribals owning land in the scheduled area is proof of the systematic violation of the regulations made from time to time governing the land transfers in Agency areas.

Sharan (2005, p. 4443-4446) in his article on the tribals of Jharkhand writes:

The alienation began during the medieval period, but intensified at an unprecedented pace in the colonial period. The communities not only lost their rights on forest, but a new set of intermediaries were imposed on the tribal areas. This led to widespread protests which caused the colonial authorities to pass a legislation which recognized the rights of the adivasis through survey and settlement operations. However, these laws also legitimized the rights of the landlords.

There has been hardly any respite in post-independence India. The area being rich in natural resources has attracted considerable investments in mines, industries, hydel projects, irrigation and reservoirs of different sizes. A number of educational and re- search institutions have also been established here. All these have led to both direct and indirect eviction of adivasi communities. The investment has created “enclaves” having very low linkages with the hinterland. Improper and callous rehabilitation has accentuated the problem in the post-independence era. The continuous immigration of outsiders has also led to a fresh demand for land. Migration due to urbanization and industrialization on the one hand and rural stagnation on the other hand, has put further pressure on the assets of the tribes in the periphery.

Corroborating the above Dash(2004) found that that land alienation is more in areas easily accessible and having a high scope for mining and has been the single biggest cause of the acute backwardness of the tribal economy with a large part of the tribal population economically indigent and with alienation of their lands and are reduced to the status of agricultural labor. Similarly Shah(2014) quoting from official data states:

Around 40 per cent of the 60 million people displaced following development projects in India are tribals, which is not a surprise given that 90 per cent of our coal and more than 50 per cent of most minerals and dam sites are mainly in tribal regions.

Since Independence recognizing land alienation as a major issue facing tribals the Indian government and various state governments have passed a spate of laws and regulations to prevent land alienation of tribal lands. For example The Assam Land and Revenue Regulation (Amendment) Act , 1964, Bihar Schedule Area Regulations, 1969, Land Revenue (Amendment) Rule, 1960 of Karnataka are some of them as are The Chotanagpur Tenancy Act 1908 (CNTA), the Santal Pargana Tenancy Act 1949 (SPTA), the Land Acquisition Act 1894 (LAA), the Scheduled Area Regulation 1969 (SAR) that govern land rights, regulate acquisition for public purpose and give adivasis an executive protection from individual resource alienation in Jharkhand.

Similarly a number of micro studies, research papers and government committees have documented the process and mode of alienation in the post-independence period. Some important studies have been: Sinha (1968), Vidyarthi (1969), Sachidananda (1972), Thakur (1977), Gupta (1977), Maharaj and lyer (1982), Sinha (1990), Sinha (1993), Oraon (1993), Iyer (1993), Bhatia (1997) and Sharan et al (1999).

In spite of all these effort land alienation continues.

Sharan (2005, p.4444) in his paper on the Land Alienation in Jharkhand categorizes Land Alienation under the following four cross-cutting categories:

Alienation in urban areas: Primarily demand induced for housing by outsiders and non agricultural purposes. This type has continued and accelerated in post-independence period and has affected both tribals and non-tribals. The majority of such alienation is illegal and methods include: collusive titles suits, collusive restoration suits in SAR courts, ‘Chapparbandi’, ‘Sada patta’, marrying tribal women, starting commercial enterprises with adivasis as sleeping partners, manipulating land records, and even forcible occupation of adivasi land.

• 2) Alienation in Rural areas: Here it is basically to meet the day-to-day needs of cash-strapped poor adivasis. In the absence of active land markets in rural areas, people resort to illegal mortgages and at times outright sales. There have also been cases in which adivasi land given to the ‘bhoodan yagna’ committee has been transferred to non- adivasi raiyats, and where pradans (village headmen) have settled lands on non-adivasis or raiyats from other villages for small considerations.
• 3) Tribal to non-Tribal and
• 4) Tribal-to-Tribal alienation.

4. The Institutional Alienation

The state under the guise of “public purposes” has been alienating tribals from their lands with some workable estimates are available [Ekka and Asif, 2000]. These projects include industry, mining, sanctuaries, dams, etc.

The lands taken under these public purposes are both for big and medium projects. The acquisition could have a rehabilitation package where tribal habitations are disturbed or only cash compensation (for small land acquisition) where tribal habitation are not being disturbed.

Sharan (2005, p.4444) notes that these land acquisition for public purpose and rehabilitation/resettlement have been an issue for the adivasis of Jharkhand as well as other parts of the country leading to agitations. The major issues in these public acquisitions are:

• 1) Disputes regarding land rights (both within and outside a family) delays compensation.
• 2) Inadequate compensation for land and home structures
• 3) Callous rehabilitation
• 4) Virtually no compensation for the commons
• 5) Non-consultative and non- participative acquisition and resettlement are commonplace in Jharkhand.
• 6) More land than required has been acquired.
• 7) The misinterpretation of the words ‘public purpose’ and use of land acquired for purposes other than the ones intended (or notified) are also important issues.
• 8) The communities and their customary rights have been by and large ignored in the state.
• 9) A wide scale degradation of land due to mining and quarrying has affected even those whose lands are not acquired but who are affected by the wider health and environmental impacts of these processes.

5. Other Cause of Land Alienation

•  Land Records: State land records have not been upgraded and digitized. Tribals in the absence or mutilation of land record papers are alienated from their land. One of the major reasons for non-restoration of illegally alienated land has been that the records are either missing or they have been mutilated, deliberately in many cases. This, particularly in the urban areas, makes it difficult for adivasis to prove their claim on land.
• Credit Needs: Short term needs of tribals are normally met by mortgaging land to moneylender from where the adivasi can never recover. Then there is problem of alcoholism and gambling which we tend to assign under social evils. For example the cockfight, ‘habba-dabba’ (a form of gambling) and drinking is quite common in the village markets of Jharkhand. Sharan(2005) finds that the local traders/non-adivasis/mahajans have used this weakness to alienate the tribals off their land. In a very limited number of cases it has been reported that land is alienated to meet the fines imposed by the community.

Adhikari(1986, pp 106-14) writes

The resume of the descriptive studies on the alienation of tribal lands makes it clear that the cause of land alienation is the gap between the consumption and earnings of the tribals and the mode of land alienation of the tribals is supposedly through the moneylenders. Simple mathematical models designed to deal with the question of tribal land alienation in the state also specify the same cause for and the same mechanism of land alienation.

•  Development of Agricultural and Irrigational Facilities: Most tribals come under the category of marginal farmers and their lands are non-sustainability with low returns coming from agriculture. Hence their shock bearing ability in case of crop loss is very low leading them into debt resulting in them mortgaging their land. Absence of irrigation adds to their woes as they are dependent on rains leading to monocropping. An increase in irrigation facilities would reduce the need for a non-institutional credit which is a major source debt and hence alienation of land.
• Poverty and Marginalization: Haseena(2014) in her paper on the tribals of Kerala writes: Extreme levels of poverty, deprivation and vulnerability, High levels of exclusion, both developmental and social, extremely low levels of empowerment (political, social and economic), rapid marginalization due to unfair, unequal and exploitative relations of production, and exchange between tribal communities and others, Low level of access to entitlements, Practically zero participation in development matters with no autonomy in any form of decision making, abnormally huge siphoning of developmental resources and benefits meant for tribal people by middlemen, Poor human development with low levels of literacy and access to health care, rapid alienation of assets like land, alarming depletion of social capital, especially traditional forms of organization and leadership, quick deterioration of traditional knowledge systems and cultural attainments, fast-increasing tendency to use tribal people as cats-paws in criminal activities like illicit distillation, cultivation of narcotic plants, stealing of forest wealth, etc., High levels of exploitation of women by outsiders, weak delivery system of public services, dependency-inducing developmental programmes relying on distribution of benefits, rather than building up of capabilities, implementation of ad hoc and stereo-typed developmental progammes in the absence of proper planning, very weak monitoring systems etc are the problems faced by the tribal community.

A quick reading of land alienation case studies from various states in India show similar causes and strangely a uniform lack of political will to prevent the alienation of tribal lands and ameliorate their sufferings. The Alienation is tied to poverty, marginalization and lack of development in a sort of a closed circle with no way out.

6. Conclusion

Cochrane  quoting Jegede (1970) writes

The problem of balancing the requirements of two legal systems, the modern and the traditional, cannot be solved by merely stating what traditional custom is and then enacting modern legislation predicated on this model to individualize property concepts. That has nearly always been the governmental response to the problem of finding out what traditional customs are. Such information is usually obtained at the cost of ossifying the traditional system.

Any legal system tends to lose its dynamism at the time of codification: “One important point which is not being considered in the process of this search is that rights and interests of a family member in family property have not been fully institutionalized. Hence, any undue haste to equate them with  foreign concepts would not only deprive them of their basic tenets but would also add to existing confusion and uncertainty now characterizing the notions of these rights and interests”

He adds “More important, the reference in modern land legislation is usually to custom rather than customs.”

The fact is, of course, that often traditional ways are not homogeneous. They may differ or conflict. This is why thorough mapping of an entire country is a necessary prelude to legislation, something that has not been done even now with the available technological tools like satellite mapping, computerization etc. This done, the need for special enactments for particular regions or ethnic groups can be assessed. Unfortunately, thorough mapping is seldom available, and authorities have all too often a fragmentary and incomplete picture of the patterns of traditional tenure in their country (Cochrane, 1974). It suits the vested interest well to keep information fragmented and laws vague.

This followed by involving tribals in land mapping and even acquisitions for public good is doable. However the official insensitivity with locals and their customs doesn’t help the cause and hence the tribals don’t trust surveyors and suspect the Government of trying to steal their land.

One solution could be involving universities and anthropologist to map local customs and make a compendium of customary land practices. This besides a complete mapping of available land in the country with reference to a cutoff year, a sort of social impact analysis or SIA that can guide public policy makers and state agencies when acquiring lands for public purposes helping dispel the perception of alienation felt by the tribals.

Summary

• The word “Alienate” means to make estranged or unfriendly.
• In the field of sociology the concept of Alienation has been discussed by theorist like Durkhein(1951, 1984), Fromm(1941), Marx (1846, 1867) etc.
• Under law Alienation of land could be understood in two different contexts: When a society, culture, colonizer or a state takes over the land of its original inhabitants, it is said that original
• inhabitants have been alienated from their lands and Alienable land in property law is land that has the capacity to be transferred by mortgage or by deed.
• Most of the tribes in India recognize two types of property; private or personal property and community property. The cultivable land, pasture ground etc belong to the community.
• Literature on tribals in India would reveal that one of their longstanding grievances has been the alienation of their land.
• Reports received from various States, indicate that 5.06 lakh cases of tribal land alienation have been registered, covering 9.02 lakh acres of land.
• There has been hardly any respite in post-independence India. The area being rich in natural resources has attracted considerable investments in mines, industries, hydel projects, irrigation and reservoirs of different sizes.
• Shah quoting from official data states states that around 40 per cent of the 60 million people displaced following development projects in India are tribals.
• Since Independence recognizing land alienation as a major issue facing tribals the Indian government and various state governments have passed a spate of laws and regulations to prevent land alienation of tribal lands.
• Sharan in his paper on Jharkhand Tribals categorized Alienation under the following four cross-cutting categories: Alienation in urban areas, Alienation in Rural areas, Tribal to non-Tribal and Tribal-to-Tribal alienation.
• The state under the guise of “public purposes” has been alienating tribals from their lands with some workable estimates are available.
• Other Cause of Land Alienation include non upgrading and no digitization of land records, short term credit needs of tribals and marginalized not met, lack of development of agriculture and irrigation for the marginalized and tribals and poverty.
• Thorough mapping of an entire country is a necessary prelude to legislation, something that has not been done.