Proposed amendment to Odisha's immovable property regulation: implication for tribals

By Ashok Shrimali* 
In an important development, the Odisha government is coming up with a new amendment to the Odisha Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) regulations, 1956, which seeks to undermine the fifth schedule of the Indian constitution. The fifth schedule gives special rights to tribals over natural resources, including land, in tribal areas. The amendment, if pushed through, will be the first of its kind in India where the fifth scheduled tribal area land will be easily alienation to non-tribals. The land will be allowed to be sold to a mining company or a corporate house. The implications are grave: The amendment, if passed, will prompt other states too to follow the Odisha “model”.
The result will be, the tribal people will lose their inherent rights and provisions of scheduled area of constitutional safeguard. Already, local tribal groups of Odisha have decided to move to the Supreme Court against the proposed amendment. In a representation to the President of India, Deme Oram, chief coordinator, Adivasi Zamin Bachao Andolan, Sundargarh, Orisha, has demanded cancellation of the proposed amendment of the Odisha Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) regulations, 1956. Expressing “deep concern” over the proposed amendment, the representation insists, the tribal people’s rights over natural resources are “recognized by the Constitution of India’s Article 244 (1).”
The representation says, “After the Independence, government of of Odisha did not provided sufficient opportunities for the economic upliftment of the tribal people. In spite of sacrificing all natural resources (land, water, forest and air) by tribals of this region, they are all deprived from all kind of opportunities generated out of developmental projects. Land of the tribals was taken away through different acts and provisions. They have been uprooted from their ancestral homestead but not rehabilitated till now.”
It points towards how their means of livelihood for survival (forest) were taken away or destroyed by the nearby project areas. The fifth schedule, however, sought to protect and regulate the tribal land and other natural resources. Even then, “different mechanisms” were adopted to take away the tribals’ private land in order to alienate them. “At present the private land of tribals (agricultural land) is less than one percent but population statistic of scheduled tribe is 23 percent within Odisha”, it adds.
The representation say, during the settlement process all the government recorded land in the scheduled areas was transferred to non-tribals, “resulting in genocide of future generation of the scheduled tribe families, as we do not have any access on these lands, restricting the tribals’ growth.”
Speaking on behalf of the Odisha tribals, the representation says, “We strongly affirm that land is not the property of tribal families but it is a resource of our community. Land is our mother and hence it cannot be mortgaged; mortgaging the land means our cultural destruction / our identity will be lost. We will lose all land holdings as we do not know to manage the money.”
It advocates that the proposed amendment is also contravenes the provisions of the Panchayat (Extension to Scheduled Areas) Act (or PESA), 1996, which activates the firth schedule. It will disturb peace and good governance in scheduled areas will be disturbed as per fifth schedule. “Transfer of tribal land should not be allowed through any means (bank) to non-tribal, which contradicts the decision of Apex Court of India vide P. Rama Reddy & others”, it says.
The representation demands that the “limitation period of 30 years in case of adverse possession of a tribal land by non-tribal should be lifted and the period of unauthorized occupation be calculated with effect from 1956.” It quotes the judgment of the Supreme court vide Amrendra Pratap Singh vs Tej Bahadur Prajapati, which states that “ acquisition of title in favour of a non-tribal by invoking the doctrine of adverse possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the court.” It adds, the proposed amendment “contradicts the above fact.”
Calling the amendment as nothing but a lucrative offer, the representation says, “It will not solve any kind of tribal peoples interest in Odisha.” Asking the President to “stop the amendment bill of the Odisha Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) regulations, 1956 (Regulation 2 of 1956).” Already, proposals of the amendment were “deferred by the National Commission on Scheduled Tribe vide the minutes dated November 17, 2009.”
It further demands “restoration of all scheduled tribes land which were alienated earlier on an emergency basis. Land (which were recorded as government category) should be allotted to the scheduled tribe members only in the scheduled areas as per the Fifth Scheduled 5(2)(b).” Also, there should be immediately cancellation of “all the settlement records where government land was transferred to non-tribal members in the scheduled areas.”
Sent to the President via the district collector, Sundargarh, Odisha, and handed over at Rourkela, a a copy of the representation has also been sent to the ministry of tribal affairs, Government of India, National Commission of Scheduled Tribe, ministry of home affairs, Governmment of India, and the ministry of law and Justice, Government of India.

*Senior Gujarat-based activist