Ordinance
on Polavaram unconstitutional
Vanam
Jwala Narasimha Rao
The Hans India Daily (31-05-2014)
The Government of India
under the pretext of constructing Polavaram Dam, in the process of paying
compensation to the tribals whose lands are under threat of being submerged has
gone to the extent of issuing an ordinance transferring seven Mandals in the tribal
district of Khammam from Telangana to Andhra Pradesh. This is unconstitutional,
undemocratic, anti-tribal and against the spirit of federalism. At a time when
Parliament is about to meet in a week’s time resorting to bring an ordinance in
such an hurried manner as if there are no important matters of public interest
in front of Modi Government is ridiculous. Transferring of a tribal Village or a
Mandal that has predominantly tribal land, from one authority to a different one
amounts to violation of Supreme Court judgments and violation of 73rd
and 74th Constitutional amendments. Without a Gramsabha resolution
nothing in Scheduled area is constitutional. Transferring of tribal village is
nothing but transferring of tribal land which again is unconstitutional. After
all Government of India declared this as National Project and as such the
compensation to the displaced tribals could be paid from central funds
irrespective of the mandals are in Telangana or Andhra Pradesh.
The tribal land has always
been under the threat of being taken over by non-tribal industrialists not to
speak of Governments, taking advantage of loopholes in the A.P. Scheduled Areas
Land Transfer (Amendment) Regulation-I of 1970 Act.
The Land Transfer Regulation
I of 1970 had positively attempted to restore the land owned by non-tribal to
tribal in Scheduled Areas. It introduced the presumptive clause, that, Land
owned by a non-tribal in a Scheduled Area will be deemed as acquired from a
tribal until the contrary is proved. The Regulation made it imperative that any
non-tribal holding land in the Scheduled Area shall not transfer it to even any
non-tribal including government. It stipulates, that, any transfer of immovable
property situated in the agency tracts by a ‘person’, whether or not such a
‘person’ is member of a Scheduled Tribe, was absolutely null and void, unless
such transfer is made in favor of a ‘person’, who is member of a Scheduled
Tribe or a society, registered under the Cooperative Societies Act, 1964 which
is composed solely of members of Scheduled Tribes. Another clause of the
Regulation provided for the surrender of land in Scheduled Areas to the
Government where the non-tribal or the tribal could not sell it to another
tribal. The Government is obliged to acquire the land on payment of
‘appropriate compensation’. It also prohibited the transfer of land from a
tribal to a non-tribal, and made it obligatory on the part of Government to
eject the non-tribal and restore the land to the original tribal owner.
By virtue of legislative
powers conferred on the Governor of the State under Article 244(I) read with
Fifth Schedule to the Constitution of India, among the various protective
measures undertaken by the Andhra Pradesh Government for the tribal welfare,
notable to mention, was, Andhra Pradesh Scheduled Areas Land Transfer
Regulation Act of 1959. Regulation I of this Act is the primary law for the
protection of the rights of the tribal over their lands. The Regulation as it
stood originally, prohibited alienation of lands by tribal to non-tribal unless
prior written permission on sanction of the competent authority was obtained.
That Regulation also empowered the Agent (Collector) to decree an ejectment
against any non-tribal in possession of any land the transfer of which was made
in contravention of its provisions and to restore such lands to the transferors
or their heirs. Regulation II of 1963 later extended the Regulation, which was
originally for the Andhra Area, to Scheduled Areas of Telangana also.
In the 1959 Act, the scope
of the word ‘transfer’ was clarified to include “any other dealing with
immovable property” and the definition of ‘immovable property’ was also
enhanced to include “standing crops, timber and trees”. The word “Scheduled
Tribe” was introduced in the Act, to include any tribe or tribal community
notified as such by the President under Article 342 of the Constitution. Under
the provisions of 1959 Regulation, though, transfer of immovable property by a
member of Scheduled Tribe to a non-tribal was made null and void; it did have
an exception clause, inferring ‘imposing certain restrictions only’.
Difficulties were encountered by the implementing agencies of Government in
ejectment procedures, in as much it was, not always easy for the authority
concerned to ascertain as to how the non-tribal got the lands in their
possession. This resulted in amending the Regulation I of 1959, in the year
1970 which is now popularly known as “One of 1970” even to an illiterate tribal
and to all those who do not even know English alphabets. Needless to say, that,
it touched the hearts of whole tribal community.
After reviewing the
Regulation I of 1970 and with a view to lessen the hardship of the Scheduled
Tribes and probably to benefit them, an amendment was issued through Regulation
I of 1971, enabling the tribal to mortgage without possession any immovable
property to the cooperative society and other financial institutions for free
flow of credit to them. Further amendment was made through Regulation I of 1978,
which prohibited, registration of documents of land transfers in favor of
non-tribal, and provided for a year’s rigorous imprisonment as well as monetary
fine for acquiring the land after ejectment decree was passed. In 1979, another
Government Order was issued exempting small non-tribal farmers owning five
acres of wetland and ten acres of dry land from the provisions of Regulation I
of 1970. The courts, however, stood by the Regulation and the Andhra Pradesh
High Court struck down the 1979 Government Order in 1983. When the non-tribal
agitated before the High Court and Supreme Court questioning the Constitutional
validity of Regulation I of 1970, they were dismissed. The Judges of the
Supreme Court observed, that, it was necessary to keep in view, the socio-economic
context, in judging whether a Regulation was reasonable or not. They further
observed, that, considering the fact, that, the tribal was cheated, exploited
and outwitted by the unscrupulous non-tribal moneylenders, it was necessary
that a ‘Regulation’ should exist to protect the tribal.
Yet another serious attempt
was made in the year 1989, when the Government announced the decision to repeal
Regulation I of 1970, but in vain. Several organizations and prominent
personalities raised objections to the move. They told the Government that the
implications of the repeal were far reaching. The attempts, as the news now
reveal, would probably continue in some form or other as long as there is
tribal land as long as non tribe’s eye is on that.
The passing of 1979
Government Order (with a Congress Government in office) and the move to repeal
the Regulation in 1989 (with a Telugu Desam Government in office), was the
result of consensus on the part of major if not all the then political parties.
Unanimity marked the thinking of political parties with ‘agreed’ differences of
ideology as that of Telugu Desam, Congress-I, both the Communists as well as
the then Janata to go for repeal in 1989. Yet another significant fact during
1989 was absence of valid protest even from tribal leaders. As a matter of
fact, the repeal was passed by the then ‘Tribal Advisory Council’ comprising
tribal Legislators with a ‘Gond tribesman’ as its Chairman in his capacity as
Minister for Tribal Welfare. The question that was frequently asked in many
corners those days was how the vested interests could manage to get the support
of the Communists too. The Communist Party of India-CPI, tried to justify its
stand, on the ground to safeguard the interest of small landowners, many of whom
belong to the weaker sections and have been occupying tribal areas for several
generations. It all ended with Telugu Desam, Bharatiya Janata and Communist
Party of India (Marxist) hastily convening a meeting and announcing that they
had altered their stand and decided against repeal of the Regulation later.
The Regulation had generated
considerable amount of land restoration activity in the tribal areas till 1979.
According to the ‘Tribal Cultural Research and Training Institute’, the number
of non tribal occupations in Scheduled Areas detected as prima-facie violating
Land Transfer Regulation run in to several thousand and the extent of land in
that was estimated to be several Lakhs of acres. A little over fourth of that
extent could only be restored to tribal population. In fact the figures also
revealed then, that, in couple of thousands of instances non-tribal could get
favorable orders involving an extent of over a Lakh of acres.
Against this backdrop once
again there were moves to circumvent Land Transfer Regulation again and again.
Truth apart, it is time now, to look in to the various aspects of Supreme Court
Judgment dated July 11, 1997 in the Public Interest Litigation on the Andhra
Pradesh Scheduled Area Land Transfer Regulation Act 1959. The Division Bench
consisted of Justice K. Ramaswamy, Justice S. Sagir Ahmed and Justice G.B.
Patnaik. The Judgment made it very clear; that, the word ‘person’ would include
the State government and as such transfer of land in Scheduled Area by way of
lease, for mining purpose in favor of non-tribal stands prohibited. The
Government also stands prohibited to transfer the mining leases to corporation
aggregate etc except to its instrumentality says the Judgment. This can also be
interpreted as prohibiting transfer of tribal area from state to state against
the interests of tribals as is done now through this ordinance.
At one point of time the
then President of India announced, that, a “Committee of Governors” would be
formed to look into the serious inadequacies in the implementation of programs
for the welfare of Scheduled Castes and Scheduled Tribes. The Supreme Court
judgment also came out with several recommendations and what was the follow-up
from the state and central governments subsequently is not known.
Against this background how can Government of India
attempt to issue an ordinance transferring tribal Mandals consisting of tribal
lands from Telangana to Andhra Pradesh? TRS Chief K Chandrasekhar Rao is right
in calling for Bandh protesting against ordinance. END
