Odisha governor must exercise special powers and overcome anomalies on tribal land rights

sundargarh tribalsMemorandum submitted to the Odisha governor on land grabbing and settlement in favour of outsider non-tribals in the Scheduled Areas of Sundargarh district, Odisha:

We the aboriginal Scheduled Tribe & people of Sundargarh district under the banner of Sundargarh Zilla Adivasi Mulvasi Bachao Manch would like to draw your kind attention as follows:

  • That prior to independent of India we the aboriginal Tribes of ex-Gangpur and Bonai State were having our own customary law and governed under Self Rule. After independent of India in 1948 Ex-Gangpur State with Bonai State merged in Odisha and renamed as Sundargarh district.
  • That Sundargarh district is declared as Scheduled Areas district by Presidential Order 1950 under the provisions of the Fifth Schedule of the Constitution of India
  • That during post independence for the rapid development of the nation mineral rich Sundargarh district ie., Dolomite, Lime stone, Iron, Manganese, Coal, Silica, etc was planned to have Mines and metal processing units. Mining activities started at Tensa-Barsuan for Iron ore, Lanjiberna, Purnapani, Birmitrapur & Gomardih for Lime stone etc. To process these raw material Rourkela Steel Plant and allied industrial projects came up like Auto India-Kalunga, L&T Kansbahal, Marshailling Yard- Bondamunda, OCL, Rajgangpur and cater this to supply continuous water dams (Pitamahal, Mandira, Kansbahal) were constructed. Union and State government, in the name of national interest the provisions to safeguard the Scheduled Areas & Scheduled Tribes were neglected. Departments were created under Odisha government to control the provisions of Fifth Schedule of the Constitution of India negating the special power of the Governor to govern the Scheduled Areas. Different kind of Land acquisition law were imposed like Orissa Development of Industries, Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land acquisition) Act 1948 and made applicable of Land Acquisition Act 1894 and huge areas of lands were acquired without emphasizing the protection of the interest of aboriginal Scheduled Tribe. Thousands of family were up rooted, forceful evictions were done, without properly rehabilitating, putted them in destitute. Till now displaced people are running post to pillar for their rights.
  • That due to rapid industrialization, uncontrolled flux of non-tribal labour force, Industrialist and Business people migrated to this place from different parts of India and settled here in. Due to these immigrants demography, socio-culture, socio-economy and socio political status were changed rapidly negating the interest and livelihood of Scheduled Tribe particularly of displaced people of Sundargarh district.To cater the interest of non-tribal migrants, Government of Odisha had made different land laws like Orissa Survey and settlement Act 1958, Orissa Land Reform Act 1960, Odisha Government Land Prevention of Encroachment Act , The Odisha Government Land Settlement Act 1962, etc and imposed it in Scheduled Areas violating the basic spirit of land regulations as per the provisions of Fifth Schedule of the Constitution of India.
  • That during Major Settlement lots of irregularities were made allotted and settled the lands to migrants non-tribals violating the provisions of Fifth Scheduled. Forest lands were also converted to non-forest kisam and allowed to settle in favour of migrant non tribals.
  • That Orissa Scheduled Areas Transfer of Immovable Properties (by Scheduled Tribe) Regulation 1956 known as Regulation 2 was mis interpreted by Sub Collectors and allowing to transfer the tribals lands to non-tribals. Instead of making effective of the provisions of the Constitution of India for the protections and welfare of the Scheduled Tribe deviated through schemes, projects, agencies were created etc. In this strategy Constitutional and Legal Rights of Scheduled Tribes were deprived & diluted.

Post Liberalisation, Privatisation and Globalisation era

Industrial policy and single window clearance were made to promote industrialization. Mining for private players was subsidies, miners were made to invest in Scheduled Areas. Lands were freely transferred to non-tribals, leased land for non-tribals were allowed for mortgage in banks loan. To get the subsidies and concessions lot of industries came and close down in the scheduled areas of Sundargarh district and without restoration of land it was kept as such. Due to rampant mining and industrialization in the district 49 polluting Sponge Iron Factories were set up and polluted the very useful commons ie., the water, the Air and the lands. Excessive and unaccounted exploitation of mineral resources were done which Shah Commission report confirms. To maintain this loot of natural resources state and corporate sponsored Maoism theories entered in the peace loving Scheduled Areas of Odisha. Tribal leaders were targeted, unrest prevails by introducing special police force, CRPF & many more agency fuels to the unrest.

All these are fabricated to undermine to fulfill the very basic provisions of the Constitution of India for its citizen.

The Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Acts 2006

The Government of Odisha failed to maintain the spirit of FRA 2006, the historical injustice made during colonial period as well as in independent India who were integral to the very survival and sustainability of the forest ecosystem are continued. The state continued to dictate over forest and forest land. Till now PESA Act 1996 had not been implemented in its spirit resulting void in the implementation of FRA 2006 as the Forest Right Committee should be constituted on the village which is defined in Section 4 (b) of the PESA Act 1996 this means the title issued in the Scheduled Areas of Odisha is totally null and void in the eye of law.

Framing of Land laws and to monopolize to regulate by Government of Odisha for the interest of capitalists

Land Banks created, Special Survey and settlement Act 2012 passed, Rule framed on Ordinance (Odisha Land Grabbing (prohibition) Rules 2015), the Odisha Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016, were made and imposed on Scheduled Areas violating the basic spirit of the provisions of the fifth schedule of the constitution of India.

  • Through Special Survey and settlement Act 2012 – State to be a necessary party in certain cases as per Section 21. Notwithstanding anything contained in any provision in any law for the time being in force, in cases concerning a land or a portion thereof, recorded previously as Government land, under whatever nomenclature, the State shall be a necessary party.
  • Through the Odisha Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016, reads as…
    • Rule 42. Formation of Land Bank: (1) The State Government may, by notification, form a Land Bank ,(a Governmental entity) in charge of local Tahasildar that focuses on the conversion of the Government owned waste land, vacant, abandoned, unutilized acquired lands and tax-delinquent properties into productive use.
    • Rule 43. Reversion of acquired land to State: (1) Land acquired and possession taken over but not utilized within a period of five years from the date of possession shall, in all cases, revert back to the State and deposited in the Land Bank automatically.
    • The Requiring Body shall deliver possession of the land to the Tahasildar and on failure to deliver the possession and occupation by the Requiring Body the same shall be treated as unauthorized and the Requiring Body shall be evicted in due course of law.
    • The Land Acquisition Officers shall furnish this information to local Tahasildars at the end of every six months in a calendar year and Tahasildars shall update the database of the Land Bank.
    • The surplus lands or lands which are not utilised within 5 years after acquisition, state will became the owner and will be dealt through Land Bank.

Series of Judgements were pronounced by Hon’ble Supreme Court of India and Hon’ble High Courts of different state to return back to the original tenants or their legal heirs in regards to land acquired and not utilised for the purpose within 5 years of acquisition. However on the contrary government of Odisha kept the surplus land and transferred the same to land bank which is clear deprivation on the Scheduled Tribe of Scheduled Areas and the spirit of LARR Act 2013 few examples:- POSCO, Rourkela Steel Plant etc.

Also it is clear from the above discussions of law that all these sections of the laws are contradicting with the provisions of Fifth Schedule of the Constitution of India. And as per Samatha vs State of Andhra Pradesh (Supra) as State is a non-tribal person hence can’t hold lands in Scheduled Areas. These community resources (Land) should be vested with the community ie, Gram Sabha and not to the state.

Prayer

  1. Give direction to the Sundargarh District Administration and the agency who are engaged in the process of Survey and Settlement to stop the work immediately
  2. Under the provisions of Para 5(1) of the Fifth Schedule of the Constitution of India, you are empowered to make public notification not to applicable the Odisha Special Survey and Settlement Act 2012, The Odisha Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016, Rule framed on Ordinance (Odisha Land Grabbing (prohibition) Rules 2015), The Odisha Land Grabing (Prohibition) Bill, Notifications on Land Bank and also requested to notify empowering Gram Sabha to monitor the entire process of land related survey settlement and other processes in the Scheduled Areas in order to maintain peace and good governance.
  3. We pray to cancel the previous major settlement records, alienation of Tribal lands as the previous settlement authority on manipulating sabak records transferred the Government / Forest / Tribal Lands in favour of the outside non-tribal violating the provisions of Fifth Schedule and law of the land. And also passed necessary directions to the concern authority to review the entire records.
  4. Pray for necessary direction directing the appropriate authority to recognize the Customary and Traditional rights of Scheduled Tribe ie, Sarna (place to perform rituals), Akhada (place to exhibit cultural practice), Grave yards, Kundi (place to perform post death rituals) etc in the Scheduled Areas.
  5. Pray for necessary direction directing the appropriate authority to stop to alienate/transfer/lease/sub lease of Government/Forest/Tribals land for the settlement of migrant non-tribals in Scheduled Areas.
  6. Pray for necessary direction directing the concern authority not to alienate/ lease/ sublease to outsider non tribal company/ firm/ society/ trust/ Association/ Government/ Semi government/ Institutions the unutilized surplus land which are now in actual physical possessions under the original land owner or their legal heirs and also the rest vacate unutilized land which are lying yet vacant. Though six decades have passed without settled.
  7. Pray for necessary direction directing the concern authority not to implement the provisions of the Odisha Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016 in the Scheduled District of Sundargarh and further directing them to prepare the record of right in favour of the original land owner/heirs possessions and unutilised land of different projects like Rourkela Steel Plant, Marshailling Yard, Bondamunda, L&T Kansbahal etc.
  8. Pray for necessary direction directing the concern authority to those non-tribals who possess the Tribal lands on the date of commencement of the Odisha Scheduled Areas Transfer of Immovable Property (by Scheduled Tribe) the Amendment Regulation of 2000 if those persons not filled in information as required by Sub Section 1 within period period of two years of the commencement of Amendment Regulation of 2000 in proper form, if any person failed to inform Sub Collector in prescribed period revert back to those persion to whom it originally belong and if that person be dead, to his heirs.
  9. Pray for necessary direction directing the appropriate Government to immediately stop to acquired the Tribal land handover the same to non tribal company/firm/society/trust/Association/ Government/ Semi government/ Institutions through the name & style of Infrastructure Development Corporation Of Odisha (IDCO)
  10. Pray for necessary direction directing the concern authority to implement the provisions of PESA Act 1996 in Scheduled Areas of Sundargarh and hence proper implementation of FRA 2006 and others relates to PESA Act.

As you are the custodian for the Administration and control of Scheduled Areas and Scheduled Tribes, we trust upon you to exercise the special and exclusive power assign through the provisions of Fifth Scheduled of the Constitution of India to stop all these anomalies of laws regarding lands and forest in the Scheduled Areas for the peace and good government with immediate effect or else we will be bound to agitate the unconstitutional activities by Sundargarh district administration in regards to the settlement of land and forest. Further restrict the survey settlement authority and agency not to proceed any further steps regarding preparations and issue of new RoR failing which government and district administration will be solely responsible if any untoward situation arises in this respect in future.

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