Tribal Land Alienation: The Law and The Courts
K.Balagopal
(Foreword to Trinadharao’s Book ‘Land Rights of Adivasis in Andhra Pradesh’, December 2004)
It is not enough if a disadvantaged class of people are endowed with legal rights. That is only the first step. Legal instruments created for the benefit of the socially privileged can be expected to find their way to implementation without any thing more. That is not the case with legal rights enacted for the benefit of the disadvantaged.
They need lawyers who are capable of advocacy adequate to ensure realisation of the rights guaranteed by the laws; they need a judicial culture that will read the laws in the light intended and construe the adjudicatory and administrative principles accordingly; and they need an administrative apparatus that will further rather than hinder the object of the laws.
Adivasis in Andhra Pradesh have not been uniformly well served in this regard. The Land Transfer Regulation (Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 as amended by Regulation 1 of 1970) is a strong enough protective measure, but the amending Regulation 1 of 1970 that has given it real strength can be fully effectuated only if the tribals have access to all land records, knowledge of how to read and make sense of them, competent legal help, and an atmosphere in the administration and the Courts conducive to the enacted legal rights. In the absence of these factors the law can even work against its intention.
After Regulation 1 of 1970, the simple legal position is that every inch of land in the scheduled areas which is in the possession of non-tribals must be subjected to the test whether it was lawfully acquired, with the non-tribal carrying the burden of proving the fact. Failing that, the land must be assigned to a tribal, for the Regulation presumes that all land in the scheduled areas was once upon a time adivasi land. The Regulation further mandates that all future transactions or dealings in land must only be in favour of tribals.
This sounds fine, and in fact is fine. But the suo motu power put in the hands of the officials to challenge non-tribals to prove the legality of their rights has in practice meant that proceedings under the Land Transfer Regulation have become a matter between the non-tribal and the revenue officials, without any notice or information to the tribal people likely to be affected or interested. And even where the officials concerned are not corrupt, the lack of any information with them other than the land records, and the lack of any strong motive other than to go through with the job, has worked to the benefit of the non-tribal who is allegedly at the receiving end of the proceedings. But of course, corruption is a major factor too. There are many instances where non-tribals have ‘persuaded’ the Special Deputy Tahsildar to initiate suo motu proceedings against them under the Land Transfer Regulation, obtained an order upholding their claim, and used it against all subsequent and bona fide challenges to their occupation.
The prejudice that the Land Transfer Regulation is an assault on the right to property and the right to equal treatment before the law stalks the Courts. In this compilation P.Trinadha Rao has set out the judgements rendered by the High Court of Andhra Pradesh and the Supreme Court expounding aspects of the Land Transfer Regulation, which may well give the impression that the Courts have strengthened the Regulation by their interpretation. It would be mendacious to suggest that the impression is altogether false. But to get the full picture one must also look at the interstices of adjudication and not just the final result in the few cases where the exposition of law is undertaken. In general, understanding what Courts do by reading only the reported judgements gives much less than half the truth of the matter. Much of their actual social impact lies in the unreported and uncommented interlocutory adjudication. Habitual litigants are known to approach lawyers saying that they ‘want a stay’ of some order or proceedings. That is absurd if seen academically. One is supposed to come to the Court for adjudication of rights, a stay or other interlocutory request being merely an adjunct to the main purpose of taking the matter to the Court. But the habitual litigant is wiser to the ways of the Courts. This is a whole area where the functioning of the institutions of justice – especially the Constitutional Courts, the High Courts and Supreme Court, where a stay made absolute is almost good enough for a life time – has remained an uncommented terrain.
For instance the journals that report the judgements of the High Court of Andhra Pradesh will not tell you that the Court passed a series of extraordinary stay orders in the 1980s putting large tracts of land in the scheduled area of West Godavari district outside the purview of the Land Transfer Regulation, pending disposal of the land-owner’s writ petition. And what were those writ petitions? Non-tribals gave representations to the Governor of the State complaining that their villages should not at all have been included in the scheduled area, and asking him to take steps to get them removed from the list. They then filed writ petitions complaining that no action is being taken on their grievance and obtained stay of all proceedings under the Land Transfer Regulation in those villages. These stay orders effectively amounted to unsettling a state of affairs prevailing for decades. Courts are, by the canons that bind Indian Courts, not supposed to unsettle the status quo prevailing for a long time by interlocutory orders. Certainly not one prevailing for decades. It is an index of how unfair the Land Transfer Regulation is believed by the Judges of the High Court to be, that they managed to ignore this principle that they routinely apply in their day to day work. It took a major uprising of the tribals of West Godavari district to get these unconscionable interlocutory orders vacated. In the reams and reams of commentary that was published about the West Godavari tribal unrest in the 1990s, nobody observed that one of the main culprits was the High Court of Andhra Pradesh. Some did not know because of the veil of legal technicality behind which the Courts hide, and some knew but thought it prudent not to speak out.
Another species of interlocutory orders frequently given by the High Court for the asking works out as follows. A non-tribal who once enters into possession of land in the scheduled areas can retain his possession until the tribal counter-claimant is tired out. If and when proceedings under the Land Transfer Regulation are taken up and terminate against the non-tribal, he files an appeal before the Agent to the Government, and moves the High Court, which automatically passes an order against his dispossession pending the appeal, with the observation that ‘he will otherwise be put to irreparable injury’. He can drag on the hearing in the Appeal as long as he pleases. If he fails in the Appeal, he can move a Revision before the Government and again get an order of stay of eviction from the High Court. From there he can go to the High Court directly with a writ of certiorari petition and try his luck – and often succeed – with one more stay application till the writ petition is disposed of. It is not unheard of that non-tribals have retained possession of tribal land without a shred of a right for a decade and more by these means.
There is a question of jurisprudence involved here. The considerations pertaining to interlocutory orders that till date weigh with the Indian Courts dealing with public law matters or social welfare instruments are those crafted by English Courts in private law matters: prima facie case (which can be conjured by an intelligent lawyer), balance of convenience (which is always held to lie with the status quo ante), and irreparable injury (for which there is usually no independent criterion but balance of convenience again). Applied to public law matters and disputes between socially unequal classes, this judicial conservatism can work and has worked havoc. This is a signal failure of the Indian judiciary, a failure in the teeth of the legislative object of the parent law, the Constitution of India. This failure affects Land Transfer Regulation proceedings too among all welfare laws.
Interlocutory orders are not all. Three line or five line final orders peremptorily disposing of cases is another species of orders passed by the High Court which are never seen by the public which knows only of reported judgements. There may well be matters that deserve no more than a three line or five line order. That is not the point. The point is that orders of dubious propriety that are summarily issued by the Court and unsettle just rights never come before the public eye for scrutiny. One such class of orders relating to scheduled areas is the following, which emanates regularly from the High Court of Andhra.Pradesh. A non-tribal land owner who is facing a dispute from tribals about land does not bother to move the civil Court for an injunction, nor the Executive Magistrate under Sec 145 of the Code of Criminal Procedure for declaration of possession. He makes an application to the Sub-Inspector of the local Police Station to accord protection to him from the tribal encroacher, and after waiting for a week or two files a writ petition in the High Court seeking a direction to the Sub-Inspector to provide protection to him.
If the same thing is done by a plot owner in Hyderabad who is facing encroachment from a neighbour, the Court will plainly tell him to go to the civil Court. But non-tribals of Buttaigudem have frequently persuaded the High Court to order the police ‘to take action on the representation for police protection in accordance with the law’. This is a seemingly innocuous order that can apparently never be wrong because officials must always act in accordance with the law. Yet in tribal-nontribal conflicts it can do a lot of damage. Since the ‘law’ itself is somewhat ambiguous in the matter, such an order can be an instrument in the hands of the non-tribal, who can use it to ‘manage’ the police and employ ‘lawful’ force to protect his disputed right. A civil dispute is not a matter where police can intervene unless a party has an injunction from a civil Court or an order from an Executive Magistrate, along with an order of police protection too, but criminal trespass is a cognisable offence, and the police have the power and the duty to prevent cognisable offences. This ambiguity can easily lead to abuse of police power, and the Courts should be the last to give occasion to it.
The ‘law’ in accordance with which the High Court directs the police to take action says that if the possession of the land is clearly in the hands of the complainant and dispute is only about title, and the other party is threatening trespass with criminal intent, the complainant is entitled to protection. If, however, possession itself is in dispute and passing from one party to another, in full or in part, as is often the case in tribal-nontribal disputes in the scheduled areas, the police have no business to interfere at all except to make a complaint to the Executive Magistrate under Sec 145 of the Code of Criminal Procedure (Cr.P.C.), if breakdown of order is imminent. And the matter is further complicated by the fact that whether possession is ‘clearly’ in the hands of one party may itself be disputed. Barring exceptional situations the proper thing for the police to do would be to keep away if the dispute does not take the form of upsetting order or public peace, and when it does so, to refer the matter under Sec.145 of Cr.P.C to the Executive Magistrate to declare possession. And the proper course for the High Court would be to clarify this point and send the petitioner packing. Instead, orders of police protection are granted for the asking.
It is in this background that adivasis need knowledgeable and committed lawyers in the Courts at all levels, from the Agency Courts (of the Special Deputy Collector and the Collector) to the High Court. Trinadha Rao, who is an unusual instance of a dedicated activist-lawyer functioning in the Agency Courts, has brought out this volume probably hoping to create more lawyers like him – and more awareness in educated adivasis – across the nine districts where there is a scheduled area. The hope is engaging and the effort is welcome. The compilation appears quite comprehensive insofar as the issue of tribal land alienation is concerned. Trinadha Rao has evidently excluded the issue of land rights in the reserve forests, which proceeds on an altogether different legal footing.
I only need to make explicit two issues of a seemingly technical character which are likely to engage lawyers struggling to protect tribal rights in the matter of land alienation in the days to come. It is the constant demand of adivasis and democratic movements supporting them that the Land Transfer Regulation must be strictly implemented by the Government. This means two things. One, that in future transfers contrary to the Land Transfer Regulation must be strictly prevented and if they take place the land should be restored promptly to tribals. This is legally unproblematic, though it can be made more effective if the Provisions of Panchayats (Extension to Scheduled Areas) Act, 1996 (Act 40 of 1996) were to be given effect to as intended by Parliament. But two, it also means that cases against past transactions must be fairly and effectively concluded so that the land of tribals is restored to them. The problem here is that between 1970 and today, most of the enquiries contemplated by the Land Transfer Regulation pertaining to past transactions have been ‘concluded’ in most of the nine districts. They have been concluded in a period when literacy, and certainly legal literacy, was very low among adivasis, and except in the instances where the complaint was made by an adivasi, no notice has gone to tribal people who may have interest in the matter. An overwhelming number of inquiries under the Land Transfer Regulation have taken place between the non-tribal claimant and the State without any adivasi hearing any thing about it. Now that there is a new generation of adivasis possessing some education and awareness, there is a demand to re-open the concluded cases and re-hear them. Without that, administrative orders such as the Circular issued with reference to the West Godavari Agency, which is included in this compilation, would have little impact. But if re-opened, will that amount to review of the concluded proceedings, or will it attract some equitable consideration such as estoppel or Res Judicata? If the former, it would be barred as it has been held by the High Court in more than one case that there is no provision of review of concluded orders in the Land Transfer Regulation. If the latter, there would be no difficulty since the High Court has held that principles such as Res Judicata would be applied only with great circumspection by the Courts in Land Transfer Regulation matters. Normally there should be no difficulty in distinguishing the two, but peremptorily and carelessly pronounced orders of the High Court in the matter of the power of review have confused the two to an extent that may cause trouble in future, given the mood of conservatism rapidly descending on the Courts.
But the demand for re-opening of cases concluded without any real opportunity for tribals to protect their interests would apply even more forcibly to cases where ryotwari pattas have been granted to non-tribals under various settlement regulations, including Mutta abolition, Estates abolition, Mahal abolition etc. In all these regulations, there is a pre-condition that before a patta is granted to a non-tribal claimant, it should be seen whether the claim is violative of the Land Transfer Regulation. In the overwhelming majority of cases, this enquiry has been done perfunctorily and patta granted. But when proceedings were later sought to be initiated against the non-tribal under the Land Transfer Regulation, the High Court said that since a patta has been granted under the settlement regulation, it is presumed that the enquiry under the Land Transfer Regulation has already been made, and so it cannot be taken up again. This view which prevailed with the High Court in the 1980s was dissented from in the year 1999 but while the earlier judgement was categorically worded, the latter expresses itself in a language that may be just sufficient in the hands of a clever lawyer and a conservative Court to be declared to be conditional.
These few words are not meant to dampen the spirits of lawyers or activists who may be inspired by examples such as Trinadha Rao to take up the challenge of protecting the land rights of adivasis in the Courts, but only to point out the problems the effort would confront.
