[dropcap]U[/dropcap]nder the scorching sun of the noon, Angad Tekam pointing to the road, explaining the boundaries of khasra number (plot number) 128 and 129, which is 2.26 and 2.25 hectares (ha) respectively in Jamruwa, district Balod in Chhattisgarh, says: “When the tehsildars had first come to see the land in 2017, I thought IIT was being built in this village. I thought it would be nice to have a college in our village. It was only months later I found that the land was being transferred to Bhilai Steel Plant in exchange for land transferred for construction of an Indian Institute of Technology somewhere else. We do not have a college here. Why should we give away our land? What do we get in return?”
Jamruwa khasra no.128 | Photo Credit: Kritika A
On the southwest side of the Jamruwa village is the expansive Konkan mines, followed by the Rajhara mines. The sound of blasting at 1 in the noon might startles a visitor but the locals are accustomed to it as it acts like a siren reminding them of the time of the day. These mines, rich in iron, provide iron-ore for steel production to Bhilai Steel Plant (BSP). Most of the families, belonging to the Gond tribe, migrated from nearby villages in the 1950’s in search of job opportunities. Jobs never came by for most of them. Nevertheless, it became their home. The kaccha road and the ponds are red due to mine dust. Villagers face acute problems due to pollution of ground water and drying of ponds. At least five farmers spoke about their land turning barren.
Mines and the dirty pond | Photo Credit: Kritika A
Between khasra number 128 and 129 is khasra number 126. Two families live there. They have been living there for two generations, yet this land has still not been transferred to their names. Bhagat Ram, one of the occupants, says: “Few months back (in January 2018), BSP’s representative came to us and asked us to vacate the land. When we said we will not leave without compensation, they said we should pay compensation to BSP as we are living on their land.” However, according the revenue records, khasra number 126 belongs to the revenue department. On khasra number 128 and 129 (land transferred to BSP), three-four families cultivate. Harichand of the Halba community is one of them. He says he has been growing pulses in that land for last 30-40 years.
Khasra no. 126 | Photo Credit: Kritika A
IIT Bhilai is being built on 141.235 ha of land in Kutelbata and 35.6 ha in Sirsa villages of Durg district of Chhattisgarh, out of which 130.23 ha are being acquired from Bhilai Steel Plant in exchange — or what is locally called “adla badli” — of land in nine villages in Kanker, Balod, Narayanpur and Durg districts of Chhattisgarh. The rest of the land is being provided by the Chhattisgarh State Revenue Department. Apart from the villages in Durg and Balod, all others villages fall under the Bastar division, which was earlier a part of Bastar district of Chhattisgarh. Except for the villages in Durg, all the six villages in the three districts are “scheduled villages”, where the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) is applicable.
Tangled legal history of the land
The Permanent Settlement of 1793 introduced by the British for the first time brought in intermediaries between the adivasis and the colonial rulers — turning them, almost overnight, into tenants from owners. The Forests Acts of 1865 and 1878 were precursors to the Indian Forest Act, 1927 that allowed the colonial government to declare any land covered with trees as a government forest and granted them the rights to manage it. Under the Act, which is still applicable today, government forests were declared as reserved, protected and village forests, and control over these was systematically taken away from the local communities, alienating the forest dwellers from their own land and turning them into encroachers. The consequence of erosion of rights on land and forest resources triggered violent tribal protests against injustice, repression and exploitation.
The gradual dispossession continued post-independence when forests were nationalised. With the implementation of Forest (Conservation) Act of 1980, all those whose agricultural or habitation lands were not regularised (a vast majority of the forest dwellers), became illegal occupants. With the Supreme Court passing an order in 1995 asking the state government to take action against “encroachers”, tens of thousands of adivasis were displaced from their homes. Meanwhile, the Provisions of Panchayat (Extension to Scheduled Areas) Act 1996, (PESA) introduced a three-tier Panchayati Raj system that could be applied to the Scheduled Areas. The 73rd amendment of the Constitution introduced the Panchayati Raj system in 1993, but keeping in mind the unique characteristics and special needs of the Scheduled Tribes, it was not automatically extended to the Scheduled Areas or Tribal Areas.
A high powered committee chaired by Dileep Singh Bhuria laid down a comprehensive tribal policy. It said: “In our Report, we have sketched a paradigm shift, placing the Panchayats centre-stage for formulation and implementation of plans for economic development and social justice, as envisaged in the Constitution.” It applies to a geopolitical regime specified for tribal-dominated areas, but excluding the north-eastern tribal districts of the country. Such areas are known as “Schedule V Areas” or simply “Scheduled Areas” and PESA recognises various socio-cultural and political rights of the tribal communities living in these areas. Probably, its most significant contribution to governance in Schedule V areas is the requirement under Section 4(h)(i) of the PESA Act — where the Gram Sabha or Panchayat at the appropriate level must be consulted prior to acquisition of land in Scheduled Areas for development projects, as well as re-settling or rehabilitating persons affected by such projects. This provision aims to protect the interests of indigenous people in tribal regions.
No knowledge of the process
Keeping in mind this requirement under the PESA, one would expect that the residents of Jamruwa (as members of its Gram Sabha) and certainly the sarpanch (as the head of the local Panch
ayat) would be aware of their village land being transferred to BSP. However, the villagers of Jamruwa are unaware of any such transaction and the sarpanch of Gram Panchayat Saleh, under which Jamruwa falls, said that she had objected to such a transfer. The Collector of Balod, in his report, mentions the objection and talks about three families cultivating that land for two generations. However, the opposition was considered to be invalid by the Chhattisgarh State Revenue Department. The villagers were never intimated about the final approval of transfer of the land.
Jharandalli | Photo Credit: Kritika A
Some 10 kms from Jamruwa is the “red town” of Jharandalli, also known as Dalli Rajhara. A bike ride from Jamruwa to Jharandalli gives one a panoramic view of the naked black hills on one side and the lush green hills on the other. Both views extend as far as the eyes can go. Red dusty roads lead to Jharandalli, a township built by Bhilai Steel Plant. Most of the families have worked in the Dalli Rajahara mines, many lost their jobs in the wake of mechanisation in the 90s, some continue to work. The whole village once belonged to a Netam family (one of the Gonds). In 1950s, BSP acquired it at a throwaway price. Through the 50 years, many — adivasis and non-adivasis alike — came in search of work and settled here permanently. The houses, akin with the nature of a workers’ township, are built in lines.
Houses are built in line | Photo Credit: Kritika A
About 3.885 ha of land has been transferred to BSP in exchange for land for IIT. Nobody, not even the patwari, was aware of the exact demarcation. According to him khasra number 58/1 and 58/3 fall in a densely populated area. The president of the Nagar Palika of Dalli Rajhara is unaware of any such transaction. He says that when the proposal first came to him, he rejected it saying that Jharandalli is already a very crowded area and there is no land to spare. Initially, 14.283 ha of revenue land of Jharandalli was to be transferred to BSP. However, the Collector of Balod in response, states: “The president of Nagar Palika has raised objection saying that 75 percent of land which fall in ward no. 16 and 17 are close to the residential area. Hence, the patwari has carried out a survey and ascertained that 6.082 ha is empty land.” Thus 6.082 ha of land stands transferred to BSP. Neither the president nor the villagers are aware of the transfer. However, according to the patwari, families are living in the 6.082 ha of the transferred land. Even he is uncertain about the exact demarcation.
The absence of any form of intimation is what has defined this entire adla badli process. Most of the inhabitants of any of the villages are unaware of such transfers or exchanges. To the contrary, villagers have been under the impression that they have refused to provide consent to such a transfer. The only point at which they realise that their land has been transferred is when someone (from NGOs or land-rights activists) goes to their village with a copy of the online record showing that the bhumiswami (owner) of these lands is now listed as Bhilai Steel Plant.
Nested amongst rocky hills, rice fields and dense forests at the northern tip of Bastar, lies Kanker — another district where the BSP is being provided land under the dubious adla badli scheme devised by the State administration. This district, too, comes under PESA. It is here in Kanker, in the sleepy tehsil of Antagarh, that the tremors caused by the questionable adla badli process were first felt. On August 20, 2016, a notice was received at the Panchayat office of Kalgaon, informing the village that 17.75 ha of nine khasras of land was to be transferred to the BSP as a part of the adla badli process for construction of an IIT. The villagers were invited to file objections via this notice — which led to 14 families, who were cultivating on the identified lands, as well as using these lands for nistar (community purposes), filing objections under the proposed transfer of land to the tehsildar, sub-divisional officer (SDO), Collector and other officials of the State administration.
Kalgaon: Photo Credit: Archit Krishna
In fact, even prior to this, on hearing informal reports through the tehsildar office, as well as one instance of being threatened by the then SDO to provide consent to such a transfer, these affected families had continually sent objections to various state officials — ranging from the local ministers to administrators sitting in the Mantralaya (Ministry) at Raipur, but to no avail. Under Clause 20 of Part IV, Number 3 of the Chhattisgarh Revenue Book of Circulars used by the Revenue Department for this transfer, the tehsildar is required to hear and settle objections raised by the proposed transfer. But the objecting villagers were never called for a hearing, neither did they receive any notice.
Construction in Kalgaon, February 2018 | Photo Credit: Maati
Subsequently, a Gram Sabha was held in the village on April 3, 2017, where under the coercive presence of the then SDO, villagers were forced to sign and give consent to transfer of land to BSP under the adla badli scheme. This resolution was only signed by 69 members (out of a total of 807) of the Gram Sabha, significantly short of the one-third quorum mark required under Section 129 of the Chhattisgarh Panchayati Raj Adhiniyam. Further, the stated intention is to provide the land for the construction of a school or hospital, as opposed to the township that BSP plans to build.
Finally, and revealingly, the resolution signed under duress from the pressure by the SDO does not mention the specific khasra numbers of land to be transferred, thereby, not affording the villagers any opportunity to determine whose land may be transferred. These khasra numbers have been added afresh, on a later date, to the original Gram Sabha resolution that was submitted to the Revenue Department. Despite many a complaint and application filed before a wide range of authorities, the next that the affected people heard of this transfer was in the early months of 2018, when they woke up to JCB machines entering their lands to kick-start construction which is still ongoing.
Meanwhile, at the other end of the Antagarh tehsil, the residents of Lam Kanhar village had been under the impression that they have successfully resisted efforts by the State administration to acquire land in their village. Their advice to the neighbouring villages of Kalgaon and Faraskot, whose land has already been transferred to the BSP, was to be more united in their opposition, like they were, the next time that any such attempt is made to acquire land. Little did they know that the victory they were celebrating was a false one. That their objections to the land transfer have been to no avail, and without anybody in the village having been informed, two khasras – numbers 30/1 and 60 – have been transferred from their village to BSP. Angered and galvanised by this injustice, the villagers of Lam Kanhar got together to file an FIR against the SDM (sub-divisional magistrate), who according to them threatened the sarpanch and secretary of the village and forced them to provide an NOC (no-objection certificate) to this land transfer. Today, the land has been removed from the village commons under Section 237(3) of the Chhattisgarh Land Revenue Code, 1959 and the order for confirming transfer to BSP lies in the Mantralaya in Raipur, awaiting the Chief Secretary’s assent.
Paddy fields of Lam kanhar | Photo credit: Archit Krishna
The adla badli scheme, while not provided for in any applicable statute, is an ingenious attempt at circumventing various protections accorded to land transfers in Schedule V Areas such as Kanker and Balod. Here, the revenue department (through the Collector) first passes an order for separation of the required land from the “nistar” (community purpose) under Section 237(3) of the Chhattisgarh Land Revenue Code, 1959 and then the Chhattisgarh Department of Revenue and Disaster Management transfers the diverted land to BSP. This Collector’s order falls afoul of the law since it does not provide the purpose for which the land will be used, and according to the Rules, such transfer can only take place for agricultural and abadi (settlement) purposes. Further, the relevant procedure used in this transfer under the abovementioned Revenue Book of Circulars is the one that governs exchange of agricultural land between agriculturalists and the government. Such a transfer can also only be approved by a Collector within his/her own district, not for that in a different district.
A similar story is to be seen in Faraskot, a village in the Bhanupratappur tehsil, merely 6 kms away from Lam Kanhar. The PESA Act requires a Gram Sabha resolution in favour of land transfer to be passed by residents of a village from where land is being transferred. Twice, during Gram Sabhas organised in January and March of 2017, the villagers of Faraskot came together to unequivocally reject the proposal to acquire land from their village. Not satisfied with this outcome, the SDO of the area threatened and pressured the secretary of the village Gram Panchayat and compelled him to organise another Gram Sabha on April 6, 2017. On this date, in the presence of the local naib tehsildar and patwari, the villagers were pressured into signing a Gram Sabha resolution which allowed for the transfer of four khasras of land from their village. The signatories were unaware of what they were agreeing to, and were ensured that a small area of jungle land falling within their village was being transferred. A year later, much after the transfer had been completed, the villagers were informed by workers of a local NGO that land on which two families have been cultivating for generations, had also been transferred. The records have been altered: the land is now listed in the name of BSP; but the concerned families continue to cultivate this land — their only means of sustenance. The families, or the village panchayat, have received no information regarding this transfer.
Faraskot | Photo Credit: Archit Krishna
Forest land, illegal transfer
If land diverted for development projects is designated as “forest land”, then in addition to the PESA, such transfer also needs to meet the requirements of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the Forest Conservation Act, 1980. The land being transferred to BSP from the villages of Faraskot, Kalgaon and Kanera (in the Narayanpur) district is designated as “chote jhaad ka jungle”, “jhudpi jungle” and “bade jhaad ka jungle” respectively and must be considered forest land in accordance with the Supreme Court’s judgment in T N Godavarman Thirumulpad vs Union of India. Under the Forest Rights Act, eviction of people occupying such forest land cannot be done until the recognition and verification procedure listed under the Act has been complied with. Such has also been reiterated by the Ministry of Environment and Forest, in addition to restating the requirement of obtaining clearance under the Forest (Conservation) Act before any such transfer of land has been completed. In the absence of compliance with these laws, the procedure undertaken by the State administration to acquire land for the BSP is entirely illegal.
The FRA recognises that forest dwellers have been considered encroachers upon their own lands; and this denial of their customary relationship and dependence on these forest lands was an act of historical injustice that the Act was enacted to rectify by recognising the rights of the forest dwellers on their land. As the biggest stakeholders in any decision to be made regarding these forests, the FRA, in accordance with the PESA, establishes the community’s right to refusal to provide consent to a proposed land transfer which could be injurious to their well being. Vesting community as well as forest management authority unto the Gram Sabha, the FRA, under Section 5, empowers the Gram Sabha to ensure that the habitat of forest dwelling Scheduled Tribes is preserved.
This role of the Gram Sabha was highlighted by the Supreme Court in Orissa Mining Corporation Ltd vs Ministry of Environment & Forests, also known as the historic “Niyamgiri judgement”. The secluded and traditionally forest dependent lives of the Dongria Kondh community — a particularly vulnerable tribal group (PVTG) residing amongst the bauxite rich hills of Niyamgiri — was threatened by the proposed setting up of a bauxite mining project by the Orissa Mining Corporation and Sterlite Industries (which is now Vedanta Ltd — an associate company of the Anil Agarwal-owned Vedanta Resources Plc). The court upheld the provisions of the Forest Rights Act, and the principle of local self-government enshrined in the PESA by asserting the requirement of prior consent of Gram Sabhas of villages who had traditional claims to land and resources around the project affected area before the areas could be diverted for non-forest purposes. The people of the region, especially the long struggling Dongia Kondhs, came together to unanimously pass Gram Sabha resolutions rejecting the diversion of their lands. The Court in this case also recognised the unique role played by scheduled tribes and other traditional forest dwellers in the forest conservation regime, leading to granting of a permanent stake to ST’s who were dwelling for generations in a symbiotic relationship with the ecosystem.
Around 1.2 million ha of land in the states of Chhattisgarh and Madhya Pradesh are disputed areas which find their mention in both revenue records as well as forest department records. These lands are known as the Orange Areas. The abovementioned lands in Farsaskot, Kalgaon and Lam Kanhar villages (along with other land acquired in the area) are classified as orange lands. The different classification of the same record has allowed both the revenue department and the forest department to assert their administrative powers over the villagers inhabiting this land. However, the Supreme Court in T N Godavarman Thirumulkpad has held:
“The word ‘forest’ must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term ‘forest land’ occurring in Section 2 (of the Forest Conservation Act, 1980) will not only include ‘forest’ as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership.”
As the land in Faraskot is categorised as Orange Area which is forest land, then transfer of any forest land has to first gain clearance under Section 3(i) of the Forest (Conservation) Act, 1980. According to Section 4(5) of the Act, “Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.” Any transfer of forest land requires all claims under the FRA to have been settled before an eviction procedure is initiated. Reiterating this, a Ministry of Environment and Forest (MoEF) circular asserted “no eviction should take place till the process of recognition and vesting of forest rights under the Act is complete.” Hence, transfer of Orange Area land without getting clearance under Forest (Conservation) Act and settlement under Forest Rights Act is illegal.
Regardless, the cultivators of lands that have been transferred in Faraskot continue to grow rice upon their lands, oblivious to the change in ownership as no consent has been obtained, or information of transfer conveyed, and hence, they are under the impression that the land that they have cultivated for many generations continues to belong to them.
Revenue Book of Circulars
The Chhattisgarh Revenue Book of Circulars (RBC) which are the various notifications and circulars listing rules regarding administrative processes, do not envisage such an exchange of land. The State administration, in its eagerness to serve the interests of BSP even at the cost of violating constitution protections granted to Schedule V areas, has incorrectly used Part IV-3, Clause 20 of the RBC, which only allows for transfer of agricultural land, for the benefit of an agriculturalist who may have holdings that are not adjacent to each other and wants to consolidate those for the purpose of agriculture, as has also been upheld by multiple decisions of the Chhattisgarh High Court.
Immoral land grab at industrial scale
A mention of the word Bastar is almost universally followed by the words “Naxalism”, “left-wing extremism,” “biggest threat to the internal security”, “law and order problem”, so on and so forth, in news cycles. What goes missing in all these easy capsules sold by the government and advertised by the media is the nexus existing between the government and the corporates who want to take control over the mineral rich land, and that without paying due regard to existing laws and mechanisms. Current economic policy and the narrative of development glorify resource extraction as something that is essential for the progress of the country, but fails to give any weightage to the primary stakeholders of this process — the original, traditional occupants of the land as well as the natural environment of the region.
Instead what we have is an obfuscation of the various illegal processes undertaken by the state and corporate interests to alienate people from their lands in this area, cleverly masked by news headlines that scream of encounters and surrenders and then seem to provide very little other information. This nexus of interests has made strong inroads in Bastar. What is standing in their way are the original inhabitants of these areas — the adivasis who have forever been denied their rightful claim in the “development” of this country. They are seen as backward, illiterate and anti-development. Many questions have been asked on “what is development”; many have tried to answer it. The growing disparity in the country is enough to prove the illusion of state-sponsored development.
Many fear that the process like adla badli will become a backdoor entry for corporates to acquire land by circumventing the procedure laid down over the decades of struggles.
Any attempt to understand the legal framework relating to land, natural resources and decentralisation must take into account both historical laws, postcolonial legislation and the changing economic and political context in which such laws operate. At times when land acquisition for mining purposes is taking place at such a high rate, one needs to look at the impact of progressive laws like PESA and FRA more closely and evaluate whether it has the potential to address the question of land alienation among the forest dwelling communities.
Constant dilution of the customary rights over the years, and hesitancy on the part of the successive governments to acknowledge these rights have meant that these laws have failed to realise their full potential in checking the alienation of forest dwellers from their land and forest, and giving the people their rightful ownership over forest resources.