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Adivasi land rights question in Telugu states: Digitization process without transparency?

By Dr Palla Trinadha Rao 
This paper examines whether the Land Records Modernization Program initiated by the successive governments in Telugu States is beneficial to tribals in the Scheduled Areas in the light of special protective Land laws that are in force there.
Digitization process or regularization of land records or land surveys without transparency will result in disempowerment of Adivasis. This can be tested in the case of Adivasis in the Scheduled Areas of Telugu States.
British colonialism, through its land revenue policy and elaborate exploitative bureaucratic structure, made land alienable on a large scale especially in tribal areas.1 Land and the forest produce remain the main source of tribals’ livelihood; but availability of land is restricted by forest reservation on the one hand, and non-tribal encroachment on the other.2
In the Andhra Area, there were certain laws including the Agency Tracts Interest and Land Transfer Act, 1917 that existed before the inauguration of the Constitution. These laws prohibited transfer of land in the Agency Tract areas except in favour of members of hill tribes.
After the Constitution of India came into force, Art. 244 of the Constitution and the Fifth Schedule were made applicable to the administration of the Scheduled Areas. Under Paragraph 5(2) of Fifth Schedule, the Governor “may” make regulations inter alia "prohibiting or restricting the transfer of land in the scheduled areas notwithstanding any provision embodied in the Constitution elsewhere" The Supreme Court3 held that though the actual word in the Constitution is that the Governor “may” act for their benefit it should be read as “shall’ and has thus effectively prevented the transfer of tribals land to non-tribals.
In the notified scheduled areas of Andhra Pradesh, although the Tribes Advisory Council (TAC) is an independent constitutional body, in reality, it remains subservient to dominant non-tribal political interests. An exploration into the functioning of the TAC between 1976 and 20104.
Accordingly, the Governor promulgated the A.P. Scheduled Areas Land Transfer Regulation, 1959, (Regulation I of 1959) as amended by 1 of 70 Regulations which prohibits transfer of lands in favor of non-tribals from tribal or non-tribal in the Scheduled Area. The amended Land Transfer Regulations 1 of 70 was an outcome of the Srikakulam Naxalite Movement.
The Supreme Court while upholding the constitutional validity of the Land Transfer Regulations5 held that “in the absence of protection, the economically stronger 'non-tribals' would in course of time devour all the available lands and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have.
However, historically, the surveys and settlement of lands program undertaken during the pre and post independent era from time to time in the scheduled area facilitated non-tribals to secure land titles of a huge extent of tribal lands.
During the survey and settlement process, non-tribals could secure settlement pattas fraudulently in connivance with revenue officials. The state intervention reproduced as legitimate the non-tribal land holding class in tribal areas during survey and settlement operations held during 1970-74 in Andhra Area. These were done using the Andhra Pradesh (Scheduled Area Ryotwari Settlement) Regulation, 1970 ('Regulation II of 1970'), the Andhra Pradesh Mahals (Abolition and Conversion into Ryotwari) Regulation 1969 (Regulation No. I of 1969), the Andhra Pradesh Muttas (Abolition and Conversion into Ryotwari) Regulation, 1969 (Regulation No. II of 1969) and its Amended AP Regulation 1 of 89 that dealt with the abolition of the villages in the erstwhile Estates, Mahals, Muttas, and Mukhasa, and the conduct of survey and settlement operations for determination of rights of ryots.
These Regulations facilitate non-tribals to claim settlement patta over the lands in their occupation for a period of 8 years prior to the notified date of these Regulations on a condition that such occupation shall not be violative of Land Transfer Regulations. However, the non-tribals obtained settlement pattas fraudulently over the lands of tribals.
Non-tribals continue to benefit through collusion with those involved in the very mechanisms to ensure justice to tribal people. Revenue officials who are the custodians of tribal lands in the Scheduled Areas have become the principal perpetrators instrumental to the paupersiation of tribal people, by making them landless.6
According to the Report of Secretary to Government (1992),7, “in one case, non-tribals have obtained ryotwari pattas in respect of an extent of 101 acres whereas the tribals are in continuous occupation and enjoyment of the said land” in Bhadrachalam revenue division, presently in Telangana State.
Despite the tribal protective land transfer laws in Khammam District, non-tribals are stated to own as much as 29,000 Hectares of land.8 In Bhadrachalam agency alone, 15,000 Acres which was worth about 75 crores are under the illegal occupation of non-tribals as per the report of Girglani Commission set up by GoAP in 2005.
The stark reality that stares one in the face is that the cultivable holdings of non-tribals are 52% in Khammam, 60% in Adilabad and 71% in Warangal Districts as per the Report of Tribal Welfare, 1995, Government of Andhra Pradesh. The successive governments are adopting general land policy overlooking the interests of tribals leading to abrogation of their land rights.
Thus, the key objective of the Digital Land Records Modernization Program (DLRMP) initiated by the Union Government and being implemented by the State Governments, is to provide a system of updated land records, replacing the present land deeds, registrations, and finally offering conclusive title to the land holder may be further examined in respect of tribal land rights.
The foundation of the implementation of the DLRMP is questionable in the Scheduled Area in the absence of a clear and genuine title over the lands situated in the Scheduled Area in favor of non-tribals. The legal presumption is that until the contrary is proved that the lands in occupation of non-tribals in the Scheduled Area shall be deemed to have come from tribals through a transfer as per the provisions of LTR 1of 70.
The updating of land records program undertaken in the Scheduled Area of Telugu States, further facilitated non-tribals to legitimize their illegal land holdings in the Scheduled Areas. Though there is an embargo on land transfers in favor of non-tribals in the Scheduled Area, a large extent of land slipped away from the holding of tribals.
Regularizing land transfers based on ‘Sada Bainama’ (transfers effected on unregistered plain papers) initiated in 2016 in Telangana, became perilous as it offered a golden opportunity for unscrupulous non-tribals to create antedated documents to get legitimacy over the illegally held tribal lands. In this context, exposing dubious ways of non-tribals to grab the tribal land, the Koneru Rangarao Land Committee had recommended that unregistered deeds, which date back to a crucial period when LTR had not come into effect, shall be made inadmissible as evidence for establishing a non-tribal’s right to land in Scheduled Areas.
The comprehensive land survey program projected as community-driven land records updation reform, initiated in 2017 in Telangana through Rythu Samanvaya Samithis formed by the Agriculture Department as a parallel structure to constitutional body of Gram Sabha, is also manipulated by non-tribals to secure legitimacy over illegally held land holdings. Similarly, thousands of acres of government lands in Bhadradri Kothagudem Districts got updated in the name of non-tribals.9
After the commencement of Record of Rights Act 1989 (RoR), most of the non-tribal land occupations in the Scheduled Area without any legal title found place in the RoR. The crucial question here centers around the very basic framework of Comprehensive Land Survey (CLS) in Telangana in recognizing the cultivation of non-tribals in the Scheduled Areas. As per the rulings of High Court in 200710 the government land occupations held by non-tribals are illegal in the Scheduled Areas.11 The High Court of AP struck down all the earlier government orders (GOs 41, 951, 129 and 971) protecting non-tribals’ government land occupations also in 1998.12
While examining the land rights of tribals and non-tribals, several judgements were passed by the AP High Court and Supreme Court. The “rough patta is not a document of title or even evidence of title”.13 Non tribals in several LTR cases could succeed in showing the rough patta or copy of Resurvey Registers (RSR) as title deeds and obtained orders from the designated courts under LTR in the erstwhile East and West Godavari Districts.
The High Court of AP held that the LTR shall have overriding effect over the RoR Act 1971 and protection under Section 5-A (4) of ROR Act is not available to non-tribals so far as enquiry under LTR is concerned.14 The Government of AP also issued a GO Ms no 6815 stating that the LTR 1 of 59 as amended by 1 of 70 shall have overriding effect over the Settlement Regulations, and any settlement patta granted in contravention of LTR will be null and void.
The A.P High Court,16 while dealing with the case between Vemula Bhaskararao Vs State of Andhra Pradesh in 2008, held that unregistered sale papers cannot be taken into account while examining the nature of tribal rights under LTR.
As per Panchayats Extension to Scheduled Area (PESA) Rules 2011, all the land transfers shall be placed before the PESA notified Gram Sabha for its review in order to ensure correct land entries in record of rights. In the light of LTR and PESA Act, the authorities involved in the CLS need to take a closer look at the cultivation by non-tribals.
The Telangana Record of Rights Act 2020 says that a title deed issued by the Tahsildar shall have the same evidential value as a document registered in accordance with the provisions of the Registration Act, 1908. With this, the new Act contradicts the Land Transfer Regulations. The united Andhra Pradesh issued a circular (2422/F1/79) in 1980 prescribing a separate procedure for registration of documents where the transfer of immovable property situated in the Scheduled Areas was concerned. This imposed restrictions on the Registering Officers under the Registration Act, 1908.
“Under the existing LTR, permission from the Agent to the Government or District Collector is essential for registration of any land transactions in the Scheduled Areas. As per the rules, the Tahsildar shall strictly comply with the provisions of the LTR to check for any potential illegal land transactions and scrutinise documents produced by applicants for registration of any land in the region, before sending remarks to the District Collector.17
In a bid to achieve the end objective of the program, the Government of AP undertook a comprehensive land resurvey program for providing permanent ownership rights to the land holders. However, the High Court of Andhra Pradesh passed an interim order18 restraining the Government from creating any permanent rights to the non-tribes in respect of lands situated in the scheduled areas acquired after 03.02.1970.
On the point of uploading of land records of non-tribals in the official web, the Special Chief Secretary to Government of AP instructed the Revenue Authorities to follow the tribal protective land transfer laws to recognize the legal right of non-tribals over the lands situated in the Scheduled Area in a specific land case arising from the Scheduled Area of Paderu. He further instructed that the non-tribal declarant who is seeking updation of land records has to declare that the lands in his occupation are not in violation of LTR with all supporting and acceptable documentary evidence including the resolutions of Gram Sabha under AP PESA Rules 2011. This circular19 is followed more in breach rather than adhering to the instructions by the revenue department in updating of land records on the web.
In the context of the status of present land records, unrecorded rights on lands shown under various categories of government lands, wrong entries, incomplete entries, false/fake records etc in the Scheduled Area of Telugu States, a question arises.
“The question is whether the Block chain technology will be helpful to the tribals to secure land rights or legitimise the illegal occupations of non-tribals on the strength of fraudulently secured earlier land titles in their favour. So, the use of Block chain should not be just digitizing existing records but should go through a foolproof authentication through a public open transparent inquiry system. Availing of new technology to create permanent land ledgers on the basis of such incorrect input data will pose a serious threat to the tribal land rights.”20 It is well settled that where a record is prepared by a public servant and such record affects the persons who have no opportunity to object, such record does not carry any probative value.
The GoAP according to its own policy order is required to design projects to minimize displacement and identify non-displacing or least displacing alternatives. Yet it has not made any effort to examine alternatives suggested by experts or set up a committee to look for alternatives to the Polavaram project.21
“The Land Acquisition authorities under Polavaram Project simply confine themselves to the documents being produced by the non-tribals and pay them compensation, thus affecting the interests of tribals whose land is in illegal possession of non-tribals under the LTR”.22
Therefore, updation of land records or digitizing land records shall be subject to the strict scrutiny of land claims of non-tribals in the Scheduled Area as per the AP Scheduled Area Land Transfer Regulations 1 of 70. The concept of granting permanent title or conclusive title deed shall be subject to the claims of tribals either today or tomorrow as per the LTR 1 of 70 in view of the legal presumption that the lands situated in the Scheduled Area originally belonged to tribals.
---
1 Mohanty B.B (2001). Land Distribution among Scheduled Castes and Tribes, EPW, October 6, 2001, p. 3859.
2 Balagopal K (2007). Illegal Acquisition in Tribal areas, EPW, October 6.
3 Samata Vs State of Andhra Pradesh, AIR 1997, P3297.
4 Trinadha Rao Palla, Politics of Land Rights, Economic and Political Weekly. Vol 49, Issue 16, 19th April, 2014.
5 Supreme Court-P. Ramireddy & Ors Vs State of AP, AIR 1988, P 1626.
6 Trinadha Rao Palla (2020) How tribal people are alienated from their land: A case study from Telangana. https://www.thenewsminute.com/article
7 AP Govt. Memo (1992) from Secretary to Government of Andhra Pradesh.
8AP. Govt. Report on Tribal Land Issues (2005). The DVLN Murthy and Girglani Report.
9Trinadha Rao Palla. (2018) Why tribals growing restive in Telangana, The Hans India,8th June 2018.
10 AP High Court-Vuppuluri Venkatapathi Raju vs Special Deputy Tahsildar, Gangavaram, 2007 (6) ALD 292
11 Trinadha Rao Palla (2017)- Telangana State land survey should uphold rights of tribals, The Hans India, 7th September 2017
12 AP High Court-P Gangamma Vs Vasudha Mistra, District Collector, West Godavari district.1998 (2) ALD 35, 1998
13 AP High Court-Director of Settlements and ors. Vs. Lingareddy Ramakrishna Reddy and ors.-2008(6) ALD 566( para 16).
14AP High Court- Pathipati Rangamma Vs. Agent to the Government at Khammam (District Collector), Khammam District and others. 2010 (4) ALD 769).
15 AP Govt. GO Ms No 68, Social Welfare (LTR.1) Department dated 09-07-2001
16 AP High Court - Vemula Bhaskararao Vs State of Andhra Pradesh, in 11th Dec,2008
17 Trinadha Rao Palla.(2020) How Telangana's new Revenue Bill may violate the land rights of tribals, https://www.thenewsminute.com/article.
18 AP High Court of AP in IA. No 1 of 2021 in WP(PIL) 11 of 2021 passed an interim order 29-01-2021.
19 AP Govt. Memo No 27030/66/2018-EA&AR-REV. Dated 15-02-2019.
20 Trinadha Rao, Palla (2017). Settle Land Rights Issues before securing them, The Hans India,22nd Nov.
21 Trinadha Rao (2006). Nature of Opposition to the Polavaram Project- Economic and Political Weekly April 15, Page:1437).
22 Walter Fernandes, Nafisa Goga D”Souza, Palla Trinadha Rao Et.al ( 2019)Displacement and Marginalization in AP and Telangana 1995-2010 , NESRC and Laya Resource Centre, Guwahati, P.69.

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