Bhubaneswar: Demanding not to give ascent to ‘Odisha Land Grabbing(Prohibition) Bill-2015, which was undemocratically passed on last session of Odisha Legislative Assembly by the ruling Biju Janata Dal government without debate and in the absence of opposition members, the newly formed ‘BHUMI ADHIKAR ANDOLAN, ODISHA’ will organised a massive Protest Dharana in front of office of the Governor of Odisha on 14th October, 2015. , below is memorandum submitted to the Governor
Dr. SENAYANGBA CHUBATOSHI JAMIR,
Honourable Governor of Odisha,
Raj Bhawan, Bhubaneswar.
Subject : Request to send the recently passed Odisha Government Land Grabbing (Prohibition) Bill 2015 back to Odisha Legislative Assembly for reconsideration under the first proviso to Article 200 of Constitution, and making a regulation for prohibition of land grabbing and for allotment of land to the members of scheduled tribe, scheduled caste and other landless poorer sections of Odisha.
You are aware that the Odisha Government Land Grabbing (Prohibition) Bill 2015 having been recently passed by the Odisha Legislative Assembly without discussion in the last monsoons session of Odisha Legislative Assembly and has been presented before your esteemed office for receiving your assent. We would earnestly request you not to accord your assent to the said Bill as it violates various Constitutional and statutory provisions and instead to send it back to the Odisha Legislative Assembly for reconsideration in the light of the said provisions as required under Article 200 of Constitution.
Moreover, we request your august office to ensure that the said Bill excludes the scheduled Areas of the State from the purview of its applicability as required under Para 5(1) of Fifth schedule and a Regulation be made for the combined purposes of prohibition of land grabbing and of allotment of land to the members of the Scheduled Tribes in the Scheduled Areas as required under Para 5 (2) of the Fifth Schedule to Constitution. We would like your honour to consider the grounds mentioned below in support of these two pleas.
- For your kind information, as per the 2006-07 data of Revenue Department, Government of Odisha about 84 percent of the land under forest and revenue belongs to the Government. It is also a well known fact that numerous poor, landless and homestead less people including mostly the marginalized communities like STs, SCs, slum dwellers, daily wage earners, marginal peasants, homesteadless, women, third gender and physically challenged persons etc. Still depend on these public lands for their bare survival. It is therefore apprehended that this Bill who has no special provisions for such marginalized communities, shall give an arbitrary handle to the official to evict and penalize these marginalized communities in the name of action against the land grabbing.
As you might know, the Bill has provided for action against the persons who are in unauthorized occupation of the public lands adjacent to state and national highways running throughout the State. Though it is true that a section of vested interests in collusion with the politicians, police and bureaucrats have grabbed such lands and deserve forthright eviction from there, it is also unfortunately true that hundreds and thousands of poor and landless households belonging to tribal and dalit communities are in occupation of little patches of land adjacent to the highways for generations, under compulsions of bare survival. On Passing of the above Bill, these hapless people are panic-stricken about the possibility of their eviction from there followed by an uncertain future. It was expected that these poor and landless families should have been allotted suitable plots of land for the purpose of homestead and cultivation as per the Odisha land reform act 1960, Odisha Prevention of Land Encroachment Act (OPLE) Act 1972, Odisha Government Land Settlement Act (OGLS) 1962. But, the Government instead of rehabilitate them as per law is out to snatch away their existing sources of survival and livelihood by using the ruthless provisions of the above Bill. Under the existing law of the State encroached settleable Govt. land can be settled in favour of a poor homesteadless and landless family. Now after passage of Odisha land grabbing (prohibition) Bill, the revenue officers will be confused as to settle the encroached Govt. land in favour of the eligible person under the provisions of the existing Acts or to evict under new act and also treat the encroached by poor homesteadless and landless people as criminal offence, punishable under the said Bill upto 7 years with a fine tune of Rs. 20,000/-.
We have gone through the Bill which was passed by the Odisha Legislative Assembly (OLA). In the entire Bill, one sentence is only added as a proviso to the Section 1(4). This read as follows : “Provided that this shall not apply to the landless and homesteadless persons as shall be notified by the Government from time to time.” In the first instances, the above sentence pretends to show that the Bill is concerned for the landless and homesteadless people. But in reality, this provision has given indiscriminate power to the bureaucracy to acquire authority and control over government land on which the landless people are depending. So this provision can not protect the right of homesteadless and landless people in the eyes of law.
The Bill doesn’t confirm to the fundamental principles of democracy, constitution of India and more embodied with unfettered authority overriding many other State and Central laws. These include the Indian evidence act 1972, the scheduled tribe and other traditional forest dwellers act (FRA) 2006 and many other acts. As you know, as per the 73rd Constitution Amendment 1962 (now Part- IX of Constitution under the title Panchayats ) the item No. 2 of the Eleventh Schedule i.e ‘Land improvement, implementation of land reforms, land consolidation and soil conservation’ should be the domain of PRIs, and as per the 74th Constitution Amendment 1992 (now Part- IXA under the title Municipalities) of Constitution the item no. 2 of the Twelfth Schedule i.e. (regulation of land use and construction of buildings’ should be the domain of Urban Local Bodies (ULBs). Needless to say, the subject relating to prohibition of land grabbing and allotment of land to the landless poor, being covered under the above items, ought to be administered by the Panchayats in rural areas and Municipalities on Municipal corporations in Urban areas. But the above Bill has by passed these constitutional provisions and given all powers to the revenue authorities for carrying out indiscriminate eviction and penalization against the landless poor without bothering about their resettlement, rehabilitation and livelihood.
Besides, the provisions of Panchayats (Extension to Scheduled Areas ) Act (PESA) 1996 entrusts the entire governance of land related matters including redressal of disputes to the Gram Sabha in the Scheduled Areas. In Section 4 it categorically says that the Legislature of a State Shall not make any law in conflict with any of the provisions made in PESA Act. Besides, the Section 5 of the said Act had mandated all the concerned legislatures and competent authorities to reform all the laws bearing on Panchayats in conformity to the provisions made in PESA Act. Thus the above Bill has not only bypassed but also violated the provisions of PESA Act and is therefore in need of a drastic amendment so as to entrust the necessary powers and authority to Grama Sabha/Palli Sabha in all matters related to land reforms including prohibition of land grabbing and land allotment.
Moreover, as you know better than any of us, the Governor of a State having the scheduled Areas has been empowered by Para-5(1) of Fifth Schedule to Constitution to
declare any law made by the Parliament or a State legislature inapplicable to the Scheduled
Areas or applicable with such modifications or exceptions as deemed proper by the
Governor himself. Such a power has been bestowed on the concerned Governor’ not with
standing anything contained in the constitution’ In the context of the present Bill, your
honour may therefore direct the State Government to exclude the Scheduled Areas from
the purview of the Bill or alternatively to amend the Bill so as to provide for the powers of
Grama Sabha over the matters relating to prohibition of land grabbing and land allotment in Scheduled Areas. It goes without saying that if the State Government fails to act upto your advice, your good office has the legitimate authority to declare the Bill inapplicable to the scheduled Areas of the State.
- Last but not the least, your good office has been entrusted with another significant
power under the Para 5(2) of Fifth Schedule to Constitution i.e. to make Regulation on any
matter for ‘the peace and good government’ in the Scheduled Areas. In Particular, Such a
Regulation ought to be made for ensuring prevention of alienation of tribal land, control of
money lending to the members of Scheduled Tribes and allotment of land to them. As you
might know, your predecessors have already made Regulations in respect of the first two
matters, leaving the third matter unaddressed till date by any Regulation. It is therefore the
constitutional obligation of your august office to make the Regulation for prohibition of land
grabbing and land allotment in Scheduled Tribes, especially at a moment when the State
Government is making frantic bid to enact the above Bill with the seal of your approval-a
Bill, ultra virus the constitutional and statutory provisions and also fraught with all-round
disaster for the people living in the Scheduled Areas.
Under the circumstances we therefore pray your august office to address the following
concerns at the earliest.
a) To send back the recently passed Odisha government Land Grabbing (Prohibition) Bill
2015 back to Odisha Legislative Assembly for its reconsideration under the first proviso
to Article 200 of Constitution, with a direction to secure its compliance to the provisions
made under Part-IX and Part IXA of Constitution.
b) To order the State Government to provide land and homestead to the landless
households before evicting them from the public lands under their occupation;
c) No to assent to the recently passed Bill that seeks to evict and criminalise the poor
landless persons including Adivasis, Dalits and slum dwellers on the ground of
encroachment of Public lands ;
d) To ensure that the above Bill either complies with the provisions of PESA Act 1996 by
way of inserting a separate chapter in respect of Scheduled Areas of excludes the
Scheduled Areas from the purview of its applicability; and
e) To make a Regulation of prohibition of land grabbing and land distribution in Scheduled
Areas as required under Para (52) of Fifth Schedule.
With Kind regards
All India Kishan Sabha Trade Union Co-ordination Centre
Odisha Krushak Sabha Basti Basinda Mahasangh
All India Krushak Mahasabha Basti Unnayan Mahasangh
All India Kishan Mazdoor Sabha Basti Suraksha Mancha
All India Krantikari Krushak Mahasabha Lok Shakti Abhijan
Chasi Mulia Sangha NAPM
Chasi Suraksha Abhijan Uthak Dokanee Mahasangha
Samajwadi Krushak Manch INSAF
RPI Krushak Manch Odisha Shramajibi Manch
Bharatiya Ksheta Mazdoor Union Anasangathita Sramik Sangha
Odisha Ksheta Mazdoor Union All India People’s Forum
Odisha Adivasi Adhikar Manch CSD, Odisha