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New Andhra law to hasten land alienation of tribal farmers, 'legitimise' illegal holdings

By Palla Trinadha Rao*  

The Land Titling Act 2023 (LTA) (Act 27 of 2023) enacted recently by the Government of Andhra Pradesh helps promote land market and ease of doing business benefitting the affluent sections while facilitating easy land alienation of especially the tribal people.
The LTA provides for the establishment, administration and management of a system of title registration of immovable properties. The LTA 2023 will replace the judicial courts in the dispensation of land justice through Civil Courts with an executive system to determine land titles and ownership. Lawyers representing several Bar Associations in the State are strongly opposing the LTA tooth and nail.
This Act has been enacted in utter disregard to tribal land rights enshrined in the Land Transfer Regulations 1 of 70 promulgated under Fifth Schedule to the Constitution which prohibits transfer of land situated in the Scheduled Area in favor of non-tribals. The object of this Regulation is to regulate the transfers of the land in the Scheduled Area.
In fact, as per the Land Transfer Regulations 1 of 78 and 1989 Rules, permission is required from the Collector to even register the permissible land transactions among tribals in the Scheduled Area. The provisions of LTA are against these rules.
The LTA enables the land titling officers to prepare record of titles on the basis of existing land related information, notify such records and provide conclusive title to these notified entries. This process of registration of land titles will negate the tribal land rights. Land records in the Scheduled Area do not reflect the actual position on the ground.
The notification issued under the Act with the entries of land parcels and names of the certificate holders will give clean chit to the transfer properties of the tribals to another unless there are any pending disputes or are covered by any court orders.
The separate procedure prescribed for registration of transfer application is guided by the LTA. Aggrieved by the order of the title registration officer, and there after the appellate authority who is the land titling appellate officer, only the second appeal lies with the HC.
Under a conclusive land titling system, land records have to designate actual ownership which is impossible in tribal areas. Because, under the provisions of Land Transfer Regulations 1 of 70, if any non-tribal is in possession of the property in the Agency Tracts, it is presumed that he or his predecessors acquired the same through a transfer made to him by a member of Schedule Tribe which is prohibited. The tribals are defacto the de jure owners of the land situated in the Scheduled Area. 
The constitutional validity of the provisions of LTR was upheld by the Supreme Court in P Ramireddy vs State of Andhra Pradesh in 1988. After noticing the provisions of the Fifth Schedule to the Constitution, the Supreme Court in Samata Vs State of AP in 1997, was of the view that the State Government stood prohibited from transferring Government land in a Scheduled Area to a non-tribal person.
The past experience showed that the non-tribals who infiltrated the Scheduled Area had appropriated the tribal lands through clandestine and dubious transactions and in violation of tribal protective Land Transfer Regulations. The unscrupulous non-tribals also obtained settlement pattas over tribals lands fraudulently in collusion with the corrupt officials. 
Now such existing land deeds will help non-tribals to seek legitimization of their illegal land holdings through LTA. LTA enables the authorities to decide the ownership over immovable properties on the basis of current possession which is questionable under the LTR.
The LTA affirms that the title recorded in the register of titles will be considered as proof of the marketable title of the title holders though there is a clear prohibition on marketing the immovable properties by non-tribals or tribals in favor of non-tribals in Scheduled Area.
Moreover a Full Bench of High Court of AP in 1993, observed in V.Somalamma Vs Dy. Collector, Tribal Welfare that all laws made applicable to the Scheduled Areas "indicate an anxiety to safeguard the interest of the tribals in the Scheduled Areas and to see that the land in the Scheduled Areas should be in possession of tribals only".
The High Court of Andhra Pradesh held in Pathipati Rangamma Vs Agent to the Government at Khammam District (2010(4) ALD 769) that the transfer, if found in contravention of the provisions of Land Transfer Regulations 1 of 70, will not be saved by virtue of validation under the provisions of Record of Rights Act 1971.
As per Panchayat Extension to Scheduled Area 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.
Till now, non-tribals who infiltrated Scheduled Area would appropriate tribal lands through clandestine, dubious transactions
There is an express embargo on the Civil Courts on entertaining any proceedings on matters covered by the LTA. The Agency Courts are specially empowered to adjudicate civil matters arising from the Scheduled Area under Andhra Pradesh Agency Rules 1924. The Supreme Court upheld the functioning of these courts in determination of civil matters in the Scheduled Area in 2012.
Therefore the Land Titling Act cannot oust the jurisdiction of Agency Courts in determining the legal title over the immovable properties situated in the Scheduled Area. Under the LTA, High Court has revision and appellate jurisdiction over the matters dealt by executive authorities.
As per Section 64 of the Land Titling Act, individuals are liable for the punishments extending to six months imprisonment or fine up to fifty thousand or with both, for furnishing false information or concealment of information. But there is no such penalty provision under the LTA when recording land titles in favor of ineligible individuals by the title registration officer and land titling appellate authority.
However, the model Land Titling Act circulated by Niti Ayog, union of India to the States provides a penal provision to the officers appointed under the Act for causing harm to the property affecting the interest of persons willfully.
The power to remove the difficulties in implementing the provisions of LTA is limited to only two years; the State even cannot exercise its power under the Act later, which is unconstitutional and arbitrary.
Though the Government claims that the LTA would reduce the land dispute litigations, but in fact it would foreclose the voice of tribals. Land titling would also help registration and regularization of land rights that arise from informal family settlements, unregistered deeds etc. LTA will increase landlessness and loss of land amongst tribals promoting land alienation in a large manner.
The Act helps to 'change the status of preexisting rights in land one way or other through its institutional mechanism. This results in the LTA further deteriorating the situation by legalizing illegal land holdings held by non-tribals triggering further dispossession of tribals. LTA also deciselvely crosses the path of the Article 244 Fifth Schedule as alo the SC and ST (Prevention of Atrocities) Act 1989.
All these indicate the urgent need to incorporate special provisions in the Land Titling Act to provide concrete safeguards to ensure that it actually secures tribal’s tenure rights against dispossession by non-tribals and business bodies.
---
*Tribal rights activist and lawyer

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