Electronic copy of this paper is available at: http://ssrn.com/abstract=981262

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Restoration of Land to Tribals1 Paromita Goswami

Shamrik Elgar Maharashtra, India

Parmoita Goswami works in the interiors of rural Maharashtra in the Jivti area of district Chandrapur. This area consists of about eighty villages. This part of the district used to be part of the estate of the Nizam of Hyderabad. During the reorganization of the states, this sub-division was attached with Maharashtra, initially as part of Nanded district and thereafter with Chandrapur district. As part of the reorganization process, the land was first brought under the control of the Maharashtra State. Thereafter pieces of it were allotted to the occupants (both adivasis and others) as per their occupation. Part of the land was also transferred to the Forest Department (FD) or marked for various purposes. Around 1975 –76

there was a drought in Nanded and non-adivasis entered the Jivti area to escape the drought. The adivasis who were shy and afraid of outsiders and who did not speak Marathi were no match for the ‘Marathas’. They were beaten out or cheated out of their land.Once the non-adivasis realised how easy it was to take possession of adivasi land, they informed others back home and the process continued till recent times. Over the years some non-adivasis bribed revenue officials and entered their names into the revenue records. In some cases the non-adivasis hounded the adivasis out of the land and then brought it to the notice of the revenue officers that the land was lying fallow and should be recovered by the government and re-distributed to the non-adivasis. All revenue officials in the area as well as some police officials were aware of the land grabbing in the area, but nobody came forward to help the adivasis. The Issue - Restoration of the possession of land to tribals. Legal issues involved: 1. Tribals whose names were entered in the record of rights should be put in actual

possession of the land. 2. Land, which had been recovered by the government, should be re-distributed to the

tribals.

1 Written by Paromita Goswami with inputs from Ruchika Bahl, Director, Asia, Law For All Initiative, Ashoka: Innovators for the Public.

Copyright © Ashoka 2006

Electronic copy of this paper is available at: http://ssrn.com/abstract=981262

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3. Any ‘pattas’ made by fraud by the non-tribals should be restored in the names of the original tribal landholder.

Some of the legal provisions protecting tribal land are as follows: Section 36 – A of the Maharashtra Land Revenue Code, 1966 provides that no occupancy of a Tribal can be transferred to a non-tribal without the permission of the District Collector, and if the land is transferred and not put to non-agricultural use it can be restored to the tribal. The land can be restored either suo – motu by the District Collector or if the tribal (or his successor) makes an application within 30 years of the transfer of the land. The Maharashtra Restoration of Land to Scheduled Tribes Act, 1974 provides for the restoration of lands belonging to tribals if it has been transferred to the non-tribal between 1st April, 1957 and 6th July 1974 and has not been put to non-agricultural use. Again the restoration may be made either suo motu by the District Collector or on application by the tribal (or his successor) within thirty years of the transfer. Section 3 (1) (v) of Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act, 1989. Provides that Whoever not being a member of scheduled castes or scheduled tribes wrongfully dispossesses a member of a scheduled caste or scheduled tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water shall be punishable with a term which shall be not less than six months but which may extend upto five years and with fine. Actions Taken:

• Legal Remedies- to deal with the issue, Paromita primarily used the following provisions:

Maharashtra Land Revenue Code, 1966 that provides “that no occupancy of a Tribal can be transferred to a non-tribal without the permission of the District Collector, and if the land is transferred and not put to non-agricultural use it can be restored to the tribal.”

Maharashtra Restoration of Land to Scheduled Tribes Act, 1974 that provides for “the restoration of lands belonging to tribals if it has been transferred to the non-tribals.”

• Establishing evidence: an initial survey of the land records held by the tribals was conducted. The survey revealed that while the land records were in the name of the adivasis, the land was in the possession of non-adivasis. This initial survey results gave their campaign credibility. With the land title documents in hand, the organization applied to the District Collector for restoration of the land and a detailed survey of the land by the state. They wrote to the Revenue Commissioner and the District Collector demanding a detailed survey of the land.

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• Filing complaints: The adivasis were frequently subjected to violence by the non-adivasis who were not ready to give up the possession of the land. Paromita’s organisation encouraged adivasis to register offences with the police under the Atrocities Act. The formal complaints forced the police to act responsibly and take preventive actions under relevant sections.

• Strength in numbers: The first two steps sent a spirit of hope amongst other adivasis. Some of those who had fled to nearby areas returned for their land. These people had relevant orders in support of their rights passed by the revenue department. But the authorities did not have the will to implement their own orders. The power of the campaign inspired many more adivasis to file applications for land restoration. Till date there are about 460 tribals from 52 villages who have filed for land restoration.

• Visibility : This geometric increase in numbers attracted the local media to cover the issue generously. Such mass pressure coupled with media interest helped make it a political issue in the assembly elections.

Learning’s:

• Innovative use of different tools in giving the campaign credibility and strength • Initiation of a detailed survey to create infallible evidence to support the case • Use of the strength of electoral power of the adivasis by including their rights in

the politics of the local area • Successful mass mobilization of the affected people and sustaining their

commitment and stake by continuous interaction and education • Proactive strategies for example when the non tribals stared to organize

themselves and collected money to approach the supreme court, the tribals also collected money to file a caveat in the apex court

• Increased use of tribal youth in influencing and informing other adivasis • Even when the law is clearly in favour of the tribals it is necessary to organise

them to get the law enforced. Community action is a must along with action through courts. Media support is essential to strengthen the campaign

Results: Till date more than 460 tribals from 52 villages have applied for restoration of the possession of their land. In January 2005 we approached the High Court with a writ petition asking for adequate appointments of surveyors in the district and other reliefs. The High Court has given the following interim order – appointment of 13 surveyors to measure and survey the tribal land, to restore the tribal lands before 31st May 2005, to

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provide seeds, fertilizers and agricultural implements to the tribals and to register offence against any non-tribal who creates obstruction in the process. The land which had been recovered by the government as lying fallow and distributed to non-tribals was recovered from the non-tribals and restored to the tribals. Failures: Not in this campaign. Dilemmas: None Community initiative etc.: When the non-tribals started to organise themselves in a Bigar-Adivasi Sangharsh Samity and collecting money to approach the Supreme Court, the tribals also collected money to file caveat in the Supreme Court. Local politicians from different parties also contributed towards the cost of approaching the Supreme Court. The tribals helped each other by giving information about the campaign, contacting tribals who had fled to the forests or to Andhra Pradesh and by providing food and shelter to those who returned. The tribal youths also participated in a survey of malnourished children in the area. They are also active in the implementation of a horticulture programme on the land that is restored so that the continued possession of the land is ensured. Other social dynamics: When the campaign started the assembly elections were around the corner and there was a lot of organising against us around this issue by political parties. Some like Shiv Sena openly rallied the non-tribals and attacked us. Others like BJP tried to influence the administration. Shetkari Sanghatana made futile attempts to divide the tribals saying only those who have lost land should be with Shramik Elgar. In answer to their pressure, on 15th August (Independence Day) we organised a huge rally attended by thousands tribals to consolidate and strengthen our campaign. Advocacy: We approached the media, High Court and Supreme Court, politicians, ministers and administration. To that extent we were engaged in advocacy. There was also discussion about raising the issue on the floor of the State Assembly. However, we decided against it because we were not sure that the issue would not backfire if more MLAs supported the non-tribals on the floor of the House than the tribals. Necessary legal actions to be sought:

1. There are certain amendments required in The Maharashtra Restoration of Land to Scheduled Tribes Act, 1974. Tribals who have been dispossessed because of transfers between 1st April 1957 and 6th July 1974 were expected to apply by November 2005. Thus, there needs to be an amendment in the Act to extend this period beyond November 2005 for another thirty years at least.

2. Land, which has been converted to NA use by non-tribals cannot be restored to

tribals. Thus, non-tribals in many cases first bribe corrupt officials to convert the land to NA use and thereafter grab it from the tribals. Thus, this provision should be deleted from section 36 –A of MLRC as well as the Restoration Act. Even if

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the land has been put to NA use, either it should be restored to the tribal or ten times its market value should be paid to the tribal as compensation.

3. There are number of cases pending in every district under Restoration Act, and

appeals pending before Revenue Commissioners since many years. These cases should be disposed of and the land restored to the tribals.