Posted by Neeharika Kujur
November 26, 2017

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“A nation that destroys its soil destroys itself ”

– Franklin D. Roosevelt

Amidst high drama of strident resistance , the Jharkhand Legislative Assembly witnessed crucial modifications in the two fundamental tribal land laws of the state – The Chotanagpur Tenancy Act ( CNT Act , 1908 ) and Santhal Pargana Tenancy Act (SPT Act , 1949) paving way for the use of Jharkhand’s tribal land for industrial and welfare projects.The bill was introduced as an ordinance in the assembly amending the section 21 , section 49 , section 71 and section 71 A of CNT Act 1908 , and section 13 of SPT Act 1949 which were later approved by the Assembly.

Jharkhand is governed under the Fifth Schedule of the Indian Constitution, which applies to states having a dominant tribal population, it has 32 tribal groups distinguished to have :
1. A distinct cultural identity which revolves around land, water and forests .
2. Been socially and economically disadvantaged
3. Special development needs in terms of access to services and facilities.

Part XVI, Part III, Part IV and other parts of the Constitution contain special provisions for SCs and STs. Presently the intrusions of the outside world have rendered them helpless and struggling to save their endangered existence in a capitalist neo imperialistic world.

What is Chotanagpur Tenancy Act?

The Chotanagpur Tenancy Act (CNT Act) came into force on November 11, 1908 was first published in Calcutta gazette and received the assent from the Govenor General on October 29, 1908. The CNT prohibits transfer of lands by sale transfer, etc. except with the consent of the Deputy Commissioner. It prohibits the alienation of land of tribals and provides for restoration of lost alienated tribal lands when converted for urban use.

40.3% of Jharkhand’s population resides below the poverty line. The CNT Act was placed under Schedule 9 of the Constitution to render it beyond judicial review. But it has been grossly violated since it has been passed.

The amended provisions of relevant section are briefly mentioned:

Amendment Of Section 21

Section 21(b) was inserted to empower the state government to regularise agricultural land.

The state government shall raise non agricultural rent by multiplying standard rate as fixed by the revenue officer.
The mentioned amendment clearly highlights the transfer of land ownership from a raiyat to state. It fails to incorporate any measures for land assessment – soil investigations , soil bearing capacity, etc. before changing the usage pattern of the land which puts into question the intention behind such a transfer of power.

Amendment Of Section 49(1)

As per section 49, the CNT Act allows transfer of land from tribal people to non tribal people only for industrial or agricultural purpose as per the consent of the revenue dept.

However the amendment allows the raiyat to transfer land to govt, for social , developmental and notified projects for public welfare infrastructure. It also clarifies if the transferred land is not used within the period of five years the land would be restored to the raiyat with apt compensation. The value of transferred land shall not be less than the value of land determined under the provisions of Land Acquisition Act.

This extends liberty of usage of tribal land for any purpose. Earlier there were incidents of illegal transfers and alienation of land, such a modification would further facilitate the misuse in such fashion. The interest of the adivasis could be furthermore breached by the inclusion of such provision, in the long run the raiyat isn’t benefited, but rather loses a large chunk of agricultural land which could be used for meeting basic needs.

Amendment of Section 71(A)

In 1969 , according to the Bihar Scheduled Areas Regulation Act, a Special Area Regulation (SAR) court was established and a provision empowering the Deputy Commissioner to allow the sale or transfer of land of tribal to a non tribal was introduced.

I believe the second provision of section 71 (A) is being misused where people are transferring tribal’s lands in connivance with the Special Area Regulation (SAR) officer’s court which has created confusion that tribal lands can be transfered by claims of compensation in SAR court. Jharkhand topped the list of tribal alienation in country as per MRDA’s report 2004-05 , with 1,04,893 acres of land being alienated under development projects. According to sources , there has been a loss of 22,00,00 acres of land due to breaches in existing laws.

The way the state government has approached to handle this issue may seem to be suggestive of the kind of its inherent fear it suffers, that its plans for development were/ are being thwarted on account of restrictions provisions in the CNT Act and SPT Acts. They suffer from selective amnesia and forget that large industrial and mining units like SAIL , HEC , DVC , CCL, BTPS , TTPS , coalfields of Dhanbad , Bokaro, Giridih have come across not withstanding the restrictive provisions of CNT and SPT Acts . So why the need to amend now ?

Under the aforementioned amendments in CNT and SPT , the support / consent of the Panchayats/ Gram Sabhas have been suggestively removed which disregard the participation of the very stake holders linked with this matter ; the amendment violates the provision of PESA( Panchayat Extension to Scheduled Area ) Act , 1996 in operation in the state. According to which , The Gram Sabhas or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in Scheduled Areas for development projects and before re-settling and rehabilitating persons affected by such projects in Scheduled Areas. The Land Acquisition Act passed by UPA Government in 2013 also confirms this.

These amendments are so sensitive and are having far reaching consequences that it would not only affect the interests of the tribals but will also change the whole demographics of the state. The future of the Act remains questionable taking into account the recent moves by the Central Government. It needs to have a comprehensive outlook on this whole matter . The state needs a development model , which focuses on the interests of these forest communities yet opens out potential of the region to forces of modernisation and puts in place a people centric development .

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