ANNIVERSARY OFFERING – Of landsharks, genuine buyers, and tribes
“Not all chapters in the history of civilization are glorious. Preservation of tribals against exploitation is, therefore, a constitutional duty for many. From the United States to India, and right down to New Zealand, statutory measures have been put in place against alienation of tribal lands. Often, these measures appear to be complicated and the laws seem to be couched in mysticism. It is more so in India, where the degree and manner of protection vary from state to state. The article demystifies the laws in the context of Western India- Maharashtra and Gujarat.”
Section 36-A of the Maharashtra Land Revenue Code, 1966 (MLRC) stipulates restrictions against the transfer of tribal lands. Accordingly, should a non-tribal be interested in acquiring any tribal land, the permission of the Collector is mandatory. It may be noted that the Collector cannot grant such permission without the prior approval of the State Government. A two-tiered system of approvals is thus prescribed. However, the Collector’s brief does not end here.
Appropriate rules and regulations ensure that the tribal gets a fair deal and his community is not done out of the property. For this purpose, the Collector has to enquire whether any other tribal within the village or within a five-kilometer radius of the village, is willing to acquire the land at the price offered by the non-tribal. For the Collector, the paramount consideration is whether the tribal will be rendered landless post-transfer.
Notwithstanding the checks and balances laid down under the MLRC, the Collector can either on its own or upon an application by an interested party open up any irregular transaction. One of the longest periods of limitations is for the challenge of such transfers: 30 years from July 6, 2004. There is, of course, a strong likelihood of an extension of the limitation period come 2034.
In my experience, permissions under Section 36A are amongst the most difficult to obtain. Interestingly, in spite of the stringent measures, irregular transfers are rather common. In several cases, it is noted that permissions, granted by the Collector under other statues pertaining to agricultural lands, are used as an excuse for not obtaining the Collector’s permission under Section 36A of MLRC. However, Justice Khanwilkar’s judgment in Dattatraya Sakharam Kabadi vs Raghu Luma Bhalerao And Ors., pronounced on August 23, 2002 [(2003) 2 BOMLR 142)] could not have been more to the point. As tersely noted in the judgment, the mandate and scope of inquiry under Section 36A is unique and must, therefore, be fulfilled.
- Appropriate rules and regulations ensure that the tribal gets a fair deal and his community is not done out of the property.
- For the Collector, the paramount consideration is whether the tribal will be rendered landless post-transfer.
- Interestingly, in spite of the stringent measures, irregular transfers are rather common.
- For transfer of tribal land in Scheduled Areas, previous permission of Gram Sabha, where a tribal resides, is now mandatory.
Between 2016 and 2017 many landmark amendments were made to Section 36A. Exemptions in favour of vital Government projects were carved out. That such an exception came to be carved out in itself is a feat. At the same time, extra protection was given to tribal lands in Scheduled Areas. For transfer of tribal lands in Scheduled Areas, previous permission of the Gram Sabha, where the tribal resides, is now mandatory.
Consequences of an irregular transaction are more or less the same in the states of Maharashtra and Gujarat and are dealt with separately.
The Bombay Land Revenue Code, 1879, now known as the Gujarat Land Revenue Code, 1879 (GLRC), lays down the applicable law for the transfer of tribal lands in the State of Gujarat.
As per Section 73AA of GLRC, the permission of the Collector is required for the sale of tribal lands by a tribal in favor of any person – tribal or non-tribal. Rule 57-L of the Gujarat Land Revenue Rules deals with such transactions. The limitation for the challenge of an irregular transfer is drastically shorter in Gujarat as compared to Maharashtra: three years.
There are some things money can’t buy, and certain irregularities that penalties cannot cure. Violation of protectionist statutes of such tribal, agricultural, forest laws results in confiscation or forfeiture of the concerned property. The property automatically vests in the state Government. However, it is not for the Government to profit from the sale of such confiscated lands. Typically, the confiscated land is offered to the tribal transferor or disposed of as per the applicable rules/regulations.
Instead of burying our heads in the sand, we can take the bull by the horns. Distances, at times, give better perspectives. Should we look at the experiences of The Māori Land Act 1993 in New Zealand, we may be able to address some of the concerns voiced in India in relation to our own tribal lands. The Ministry of Maori Development lists out the following advantages and disadvantages of the applicable Maori Act enacted for the protection of the Maori People in New Zealand.
- The limitation for the challenge of an irregular transfer is drastically shorter in Gujarat as compared to Maharashtra: three years.
- Violation of protectionist statutes of such tribal, agricultural, forest laws results in confiscation or forfeiture of the property.
- Should we look at the experiences of the Māori Land Act 1993 in New Zealand, we may be able to address some of the concerns.
- Reservation of land in favor of Red Indians in the US is mostly suitable for large ranches. Our experience comes very close.
- Māori Land Court intervention ensures accountability and protection
- High level of beneficiary participation
- The restrictions on alienation
- Lack of commerciality
- Can be cumbersome due to the high level of beneficiary participation
- Māori Land Court intervention can be time-consuming and costly
- The restrictions on alienation can impede development
- Difficulties in obtaining finance
Does it not sound all too familiar? Between contrasting goals, we need to strike a balance. Policies for the development of integrated townships, Special Economic Zone, industrial parks, logistics, and warehouses are quick to ease stringent laws in relation to the purchase of agricultural lands, planning/zoning/user issues, etc. But they steer clear of tribal lands.
The reservation of land in favor of Red Indians in the United States is mostly suitable for large ranches. Our experience comes very close. Tribal lands are often in backward areas with little chance of industrialization or progress. Restrictions on alienation are not enough. Some thought must be given as to more holistic development. Beneficial legislation and economic progress need not be opposites. In fact, the former should be a means to the latter.
To conclude, a quote from Theodore Roosevelt fits here like a glove: “You cannot create prosperity by law. Sustained thrift, industry, application, intelligence, are the only things that ever do, or ever will, create prosperity. But you can very easily destroy prosperity by law.”