Content Page Nos

Recommendations

1. 
   A comprehensive set of measures should be undertaken involving legislative, administrative and public education measures to ensure the rights of the tribals over land, forest, water and minor mineral resources. This can be done in the following ways:
   

• 
  wall mapping of land possession in village.
  
• 
  setting up of a legal aid cell to provide consultative guidance.
  
• 
  legal literacy programmes under framework of customary laws to be implemented.
  

2. 
   A comprehensive Survey & Settlement of the tribal sub-plan areas should be done in a time-bound manner. The pre-settlement leases should be regularized by authorizing the Tehsildar to make corrections in the record of rights as per the Orissa Mutation Manual.
   
3. 
   There should be re-alignment of Forest & Revenue land records especially under purview of rights and ownership of common property land and resources.
   
4. 
   Recognition of “Record of Rights”/ “Adhikar Abhilekh”/ “Nistar Patrak”/ “Vazibul Arz”/ “Dafayati Rights”; that was established after abolition of malgujari-jamindari (1952) for securing and institutionalizing their due traditional recorded and non-recorded rights on common property resources.
   
5. 
   A framework guiding the survey should be based upon the specific forms of property rights operative in the tribal areas namely, customary rights over forest and land resources belonging to local community as well as individual.
   
6. 
   The role of Tribal Advisory Council (TAC) should be strengthened. Under article 238/2, the Governor can make regulations for the Scheduled Areas by prohibiting and restricting transfer of land by or among the members of Scheduled Tribes and regulate money lending. There is provision for TAC in Schedule V areas and the Governor is bound to consult them.
   
7. 
   Withdrawal of minor cases filed against tribal communities under encroachment/ violations of Wildlife Act/ other forest offences etc.
   
8. 
   Amendment in Land Acquisition Act under the purview of article 14, 15/4 and 19, where State may legislate restricting the acquisition of landed property in the tribal areas.
   
9. 
   Updating land records with active participation of tribal community through trained tribal youth on customary laws of various communities and statutory measures for their protection, on private and community land.
   
10. 
    Establishment of Land Bank, which facilitates lease from tribal to non-tribal land and will settle the same with the tribal communities or will meet the requirements of land for public purpose at prevalent market prices.
    
11. 
    Tribal communities who were earlier displaced because of national parks and wild life sanctuaries must be rehabilitated under the purview of FRA.
    
12. 
    All land acquisition process in tribal areas must be stopped before settlement of tribal community under FRA.
    
13. 
    The area which is occupied by the tribal communities must not be demarcated for rehabilitation of any other project affected community.
    
14. 
    All primitive tribal groups must be exempted under FRA without their date of occupancy on a particular piece of land.
    
15. 
    Any land that has been claimed under FRA must not be identified/utilized for Jatropha plantation.
    
16. 
    All claims of non-tribal communities on the same piece of land must be taken to a fast-track court for timely settlement.
    
17. 
    All claims for common property resources should be brought under time-bound action and resettlement should be provided on the basis of ‘Record of Rights.’
    
18. 
    All land regularized under FRA must not be alienated/acquired in the next 100 years and in case of any emergency acquisition, the same category of land must be provided.
    
19. 
    The tribal communities who lived in Salwa Judum camps must be resettled in their occupied land irrespective of the cut of-date under FRA (2006).
    

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Chapter Two
Tenancy, Sub-Tenancy and Homestead Rights

1. 
   Issues Relating to Tenancy
   

2.1.1 Prior to independence, agricultural tenancy was considered to be an integral part of the feudalistic, albeit unproductive and exploitative agrarian relations. Tenancy arrangements in general were a matter of mutual agreement between the land owners and the tenants which were governed mainly by the ordinary law of contract which had no provision for either security of tenure or regulation of rent. According to the Famine Enquiry Commission (Government of India, 1944), even in the ryotwari areas where peasant proprietorship should have prevailed, unprotected tenancy developed on a large scale. The share-croppers who constituted the great bulk of the actual cultivators remained outside the purview of any legal protection and were subject to arbitrary eviction and rack renting (Haque and Sirohi, 1986).

2.1.2 In the wake of independence, though the major emphasis was on the abolition of intermediaries, certain amendments to the existing tenancy laws were also made with a view to providing security to the tenants of ex-intermediaries. Some state governments not only conferred ownership/occupancy right on the existing tenants, but also put legal restrictions on future leasing. Several states which permitted leasing out by certain categories of land-owners also prescribed the levels of fair rent. Tables 2.1 and 2.2 show the nature of legal restrictions and levels of fair rent fixed by various states. These legal measures provoked the landlords to secure mass eviction of tenants, sub-tenants and resort to extra legal devices. While the laws abolishing intermediaries allowed tenants to acquire ownership right in about 4 percent of the country’s agricultural land, the same laws led to the ejectment of tenant families from as much as 33 per cent of total agricultural land (Appu, 1996). Besides, informal and short-term, albeit insecure tenancies continue to exit in most places (Tables 2. 3 and 2. 4). Also the fair rent is implemented nowhere except in West Bengal, where share-croppers enjoy a strong backing from the left front government.
2.2 Incidence of Tenancy
2.2.1 Despite legal restriction on land leasing, people lease out and lease in agricultural land on informal basis in almost all regions of the country. According to the 60^th Round of National Sample Survey (2003), leased in area formed nearly 7 per cent of the total operated area, while 11.5 per cent of the rural households lease in land (Table-2.3). But some micro studies point out to understanding in NSS data, as area under informal tenancies vary between 15 and 35 per cent. Informal tenants who do not have any security of tenure, fail to cultivate land efficiently. The NSSO data further bear out that share-cropping continues to be the dominant form of leasing in most places, while in the relatively developed states of Haryana, Punjab, Uttarakhand, Tamil Nadu and Andhra Pradesh and in most irrigated areas, fixed cash tenancy is more common (Table-2.4). About 90 percent of the leased in area is unrecorded and informal. At All India level, 35.8 per cent of the total rural households leasing in land are landless labourers and 47.5 per cent have land below 0.5 hectare and 8.2 per cent have land between 0.5 to 1.0 hectare. Thus, above 91 per cent of the total number of tenants belong to the category of landless labourers and marginal farmers (Table 2.5) Nearly 57 per cent of the leased in area in Kharif season and 54 per cent in rabi season were on short term leases, i.e. for less than 2 years (Table 2.6) and did not have any tenural security or stability.
2.2.2 A recent study of land lease market in Uttar Pradesh (Mani and Pandey, 2004) shows that leasingin of agricultural land is largely concentrated among the marginal farmers. Those marginal farmers who have better outside employment opportunities prefer to lease out their tiny holdings and those not having outside employment opportunities resort to leasing in more land to make their operational holdings adequate for family sustenance. The landless agricultural workers also lease in land for family sustenance. This study further reveals that disability served as the reason for leasing out only in 15 per cent cases, while the absentee owners and management problems on lands accounted for 70 per cent cases. But subsistence and family labour were the major reasons for leasing in land. The lease market absorbed some of the landless, and provided employment to poorest of the poor class. Similarly, a study by Sharma (2004) in Palanpur village of Moradabad district, Uttar Pradesh bears out that despite ban on land leasing, leased area consisted of 28 per cent of all cultivated land and out of 143 households, 106 were either leasing in or leasing out or both. But there was frequent change in tenure status and leasing of land was used as an adjustment device by many in response to change in family labour availability, draught power, cash resources, debt situation, etc. A study by Fahimuddin (GIDS, 2008) shows that the main reasons for leasing in of land are improved access to land and getting additional income for livelihood. Jaber Alis’ field study in Uttar Pradesh (2005) brings out that marginal and small farmers constitute nearly 95 to 100 percent of the total lessee in the districts of Ghazipur, Aligrah, Sitapur, and Jalaun. A more or less similar situation is found in other regions.
2.2.3 A field study by Vijay (2004) in Andhra Pradesh shows that poor peasants are the main demand points of land in the lease market. Akter et. el (2006) in a study of 12 villages in Andhra Pradesh and Madhya Pradesh observed that the rental market transferred land to those having less land available for use, more ability to use land, more assets to invest, a higher adult workforce and fewer off-farm opportunities.
2.2.4 A study of land leasing by women in Andhra Pradesh by Nielsen et at (2007) shows that the rural poor voluntarily choose to lease in land as a way to increase and diversify their resources of food crops and income, to improve the well being of their households and to reduce their reliance on wage labour. Although cash based land leases were beneficial to land owners and leases, share- cropping arrangements dominated in some regions and also appeared to be exploitative of the lessees. The sharecroppers had limited power to negotiate better terms, especially because the leasing agreements are informal and outside the law. Nevertheless, women self-help groups and land owners are freely negotiating the leases and the agreed terms and conditions of lease, are at least in part, economically driven.

3. 
   Case for Legalization and Liberalization of Land Leasing
   

2.3.1 The question whether tenancy influences productivity or resource use efficiency in agriculture has been a subject of discussion for a very long time. Unfortunately the prolonged debate has created a lot of confusion in the minds of policy makers regarding the usefulness of tenancy reform measures undertaken thus far. It has also made them directionless so far as the future policy on land leasing in concerned.

2. 
   Several research studies (Haque, 2001, Deininger et al, 2005) have pointed out that restrictions on land leasing have reduced the welfare of poor tenants by forcing them to enter into informal arrangements in contravention of the rules and also by restricting the poor peoples’ access to land through leasing. Besides, restrictive land leasing laws have discouraged the land-owners to lease out land and take up non-farm enterprises which is vital for rural transformation. Moreover, due to legal restrictions on land leasing, some land-owners prefer to keep their land fallow than to lease out for fear of losing the land in case they lease out. The lifting of ban on leasing in such cases will result in better utilization of the available land and labour and also promote both farm and non-farm development by improving the large land owners’ incentive and ability to invest. Also legalization of tenancy would create additional incentive to produce more and enable them to access institutional credit and other services (Haque, 2001).
   

2. 
   The neo-classical economists have always argued that land rental markets would increase productivity and equity because of low cost land transfers to more productive producers, by enabling some to lease land, some others to move on to non-farm economic activities and also by improving the ability of the poor to face consumption shocks through employment and income from the leased in land. Besides, land rental markets are seen as a means of reaching optimum size of operational holdings, where family labour could be fully employed. It is expected to equalize returns to non-tradable factors of production, such as family labour and bullocks in the traditional farms. Also rental markets are more flexible than land sales markets and involve low transaction costs. (Reddy, 2004). However, the benefits to participating households will depend on the size of the surplus achieved from engaging in rental and on its distribution between land-owners and tenants. Besides, the number and types of outside options available to tenants, such as wage labour and non-farm opportunity, will affect the outcome of bargaining between landlords and tenants as well as the efficiency of the production outcome. (Conning and Robinson, 2002).
   

2. 
   It is sometimes apprehended that unrestricted land leasing may encourage reverse tenancy and would result in concentration of operational holdings in few hands. These fears can be addressed if the law specifically provides that land leasing is allowed within ceiling limit as fixed in different states and ceilings are fixed on operational holdings and not just ownership holdings (Haque 2001). Moreover, reverse tenancy is not always bad. In the context of Punjab, this seems to be a win-win situation for both the lessor and the lessee, as both maximize their income through leasing out and leasing in of agricultural land and occupational mobility (Haque, 2001). This was further confirmed by the Committee members’ interaction with farmers in Punjab.
   

2. 
   As point out earlier majority of the sub-tenants in the country are either landless or semi-landless persons. Legalization of land leasing may improve their tenural security and incentive to cultivate land efficiently apart from reducing poverty.
   

3. 
   Should Tenancies be Recorded?
   

2.4.1 Both NSSO data as well as independent field studies show that tenancies are mostly unrecorded and based on oral agreements. This is because of two reasons. First, the land-owners do not like the names of tenants to be recorded due to the fear that they may lose their land rights. Second, the states which have legally banned leasing out of land, do not make any efforts to record tenancies, assuming that there is no tenancy in existence.

2. 
   The law in most cases provides for recording of tenants and subsequent conferment of occupancy right on them, by virtue of the clauses of adverse possession of land for certain specified years. But the states have generally ignored this aspect of the law. In some cases, even the tenants do not insist on recording of tenancy because of their unequal, albeit weak power and for the fear that they may be evicted from tenanted land by the land-owners.
   

2. 
   In West Bengal, there was a special drive to record the names of share-croppers (Bargadars) in 1978 through 1980’s which led to ensuring permanent heritable, but non-transferable right to share croppers. But this was possible because of strong will power of the state government supported by political mobilization of the share-croppers and Panchayati Raj institution. In the absence of such a frame work in most other states, mere talk of recording of tenants would not help. In most situations, this may even result in eviction of tenants from tenanted land. The group therefore, is of the view that there should be a simple lease agreement by lessor and the lessee for a minimum specified period of 3 to 5 years, duly verified by head of Gram Sabha / Gram Panchayat and without any clause of adverse possession of land. The land should automatically return to the land-owner on the expiry of the agreed lease period. In case of West Bengal, however, the share-croppers are as good as occupancy tenants and produce is shared in the ratio of 3:1 or 1:1, between share cropper and landlord, depending upon cost of inputs being borne by sharecropper or the landlord. Factoring this, therefore, ownership right should be conferred on all share-croppers at least on half of the land under share cropping.
   

Recommendations on Appropriate Legal and Institutional Framework for Land Leasing
After careful considerations of various aspects of land leasing, the Committee recommends the following:

1. 
   Legalize land leasing for agriculture in all areas within ceiling limits. This would improve rural poor’s accessibility to land through leasing, discourage land being kept fallow and increase much needed occupational mobility of the rural people;
   
2. 
   Encourage and support group leasing by women, as far as possible;
   
3. 
   All States should impose ceilings on operational holdings and not just ownership holdings. This would help prevent concentration of land through leasing, Under no circumstances, land owners having land above ceiling should be allowed to lease in land even for agriculture;
   
4. 
   Remove the clause of adverse possession of land in the tenancy laws of various states as it de-motivates the land owners to lease out land;
   
5. 
   Allow automatic resumption of land after the agreed lease period;
   

6. 
   Abolish the system of regulation of fixation of fair rent by the state. The market rent as agreed upon by the lesser and the lessee should prevail;
   
7. 
   All tenants and sub-tenants including share croppers / under raiyats should be recognized by law and assisted with adequate institutional support and rural development schemes to overcome poverty and indebtedness;
   
8. 
   Share croppers in West Bengal who have permanent and heritable rights on share cropped land are as good as occupancy tenants. Therefore, they should be conferred ownership right with the consent of owners, at least on half of the land under sharecropping.
   

3. 
   Issues Relating to Homestead Rights
   

2.5.1 It is now a well researched and well recognized fact that extreme rural poverty in India is rooted in landlessness. The poorest of the poor are those without land who depend on agricultural wage employment for their subsistence. Also the poorest among landless are houseless, not even having their own small plot of land on which to build a residential shelter. The latest NSS data (Table 2.7) show that about 10 per cent of rural households in the country are landless and 5.5 per cent of the rural households do not own any dwelling unit. In absolute terms, 14.8 million rural households are landless and 7.9 million do not have any dwelling units of their own.

2. 
   The Committee is in agreement with the view expressed in the Eleventh Five Year Plan of India that the right to a roof over one’s head needs to be seen as a basic human right, along with the right to freedom from hunger and right to education. In the first phase of post independence land reform, some state governments had no doubt provided house sites and homestead plots to landless labourers or other land poor households. While states like West Bengal and Bihar enacted separate laws for this purpose, most other states incorporated such a provision in their land reform laws. Pursuant to these laws and provisions, an estimated four million households obtained house sites across India. However, the size of plot allotted was just enough to build a room, without any additional space for allowing any backyard farming or economic activities to be taken up.
   

2. 
   The average size of homestead plot given to about 1.71 Lakh landless families under Vasundhara Scheme in Orissa was only about 4 cents. These were mostly government land. But even with 4 cents of land, the beneficiaries could derive benefits in terms of improved food and nutritional security through cultivation of fruits and vegetables in the kitchen garden. If the plot size can be increased to at least 10 cents the landless poor families will have not only home of their own, but also an opportunity to take up some economic activities such as planting of fruits and other commercial trees, cultivation of vegetables and rearing animals such as cows, buffalo, goats, sheep, poultry birds, etc., and earn some supplementary income. This will help reduce poverty in rural areas. The homesteads in Kerala and the North East are eloquent testimony to the nutrition security of the rural poor.
   

2. 
   Till recently, the focus of Indira Awas Yojana was on grant for house construction and not on providing house sites. It is indeed a matter of gratification that Ministry of Rural Development has provided for an additional amount Rs. 100 Crore this year under Indira Awas Yojana for allocation of homestead plot to houseless poor by purchasing land from the market. It should, however, be ensured that the size of homestead plot is not less than 10 cents, which can yield substantial economic benefits.
   

3. 
   Some Recent Initiatives
   

2.6.1 Some States such as Karnataka, West Bengal and Andhra Pradesh have recently initiated innovative land reform schemes that aim at providing homestead plot to houseless rural families by purchasing land from the market. In Karnataka, a scheme called “My land-My Garden’ is implemented through the Panchayats. The scheme aims at providing 0.12 acre plots to 0.5 million rural landless households in the state free of cost. The gram panchayat prepares a list of eligible households, identifies suitable land for purchase near the village, purchases and registers the land, portions the land into micro plots and allocates them to the landless poor families. The state expects to spend Rs. 6000 as land cost per beneficiary. The West Bengal Scheme, “Allocation of cultivation and Dwelling Plot Scheme” is implemented by the Department of Land Reforms and Revenue, in collaboration with Panchayats. The department publicly announces in each district that it would like to purchase land for the scheme and invites land-owners to submit sale offers. A District level committee headed by Sabhapati of panchayat samiti reviews the offers, short lists them and negotiates the purchase of the most suitable offers. The land is then partitioned and distributed to the list of eligible landless beneficiaries that have been prepared by the Panchayats. The plots are provided free of cost to the beneficiaries. The scheme plans to spend Rs. 20,000 in land costs per beneficiary family and expects to allocate land plots of 0.16 to 0.50 acre per family, depending on the price per acre.

2. 
   The Andhra Pradesh Scheme is part of the larger Indira Kranthi Patham (IKP) Project and is implemented through women’s self help groups. The project has been in operation since 2004. Land costs per acre average about Rs. 58,000. The Government provides up to 60 per cent of the land cost, as a grant, the beneficiary contributes up to 10 per cent of the land costs and the remaining amount is financed as a loan which the beneficiary will repay in 15 years. A recent impact study found that the beneficiaries are receiving an average of more than Rs. 15,000 net cash income per acre per year in addition to food they produce for self consumption from a micro plot (A Panth and M. Mahamallik, “Impact Assessment of IKP Land Purchase Scheme in Andhra Pradesh,” 2005).
   

2. 
   While the above mentioned initiatives of the Governments of Karnataka, West Bengal and Andhra Pradesh show some rays of hope for the landless poor in these states, the Government of Karnataka and West Bengal have sought central assistance to take up the programme successfully on wider scale. Given the tight resource position, it is also true that most state governments, would not be able to undertake any such scheme on a large scale on their own, unless supported by central government or some financial institutions.
   

2. 
   The Committee feels that allocation of homestead cum garden plots of 10 cents in size would not only provide shelter to the houseless rural poor, but also help improve their food and nutritional security.