A Design to Uproot the Natives

One of the Cabinet Ministers of Assam Shri Chandra Mohan Patowary has recently revealed a decision of the Assam government in his official twitter handle that has sparked a row and has drawn flak from opposition parties.

According to the statement of this senior minister the state cabinet had approved an ordinance on 1st July – the Assam Micro, Small and Medium Enterprises (Facilitation of Establishment and Operation) Ordinance, 2020, that would allow micro, small, and medium enterprises (MSMEs) to set up industries by only submitting a self-declaration. The tweet of the Industries Minister Chandra Mohan Patowary read as-“In a historic and far-reaching decision to ease out the process of setting up industries in Assam, the state cabinet has approved an ordinance today. Now, anyone will be able to set up industry in Assam just by submitting a self-declaration. No permission, clearance, or licence will be required for three years. Land will also be deemed converted for industrial purposes. Such bold and advantageous change is expected to accelerate the industrialisation process in Assam,”

From a plain reading of the above tweet we may presume certain propositions that can be summarised as follow:

  • Now any person can purchase land in the state of Assam without facing any legal or administrative bar and the existing legal obstacles with regard to land alienation such as restriction of land purchasing in the tribal belt and block and in the sixth schedule areas will no longer be a hindrance in near future.
  • The Minister has stated that to start up an industry in the state, no permission, clearance or licence will be required for initial period of three years. It means that the notifications like Environment Impact Assessment and other environmental laws, different restrictive provisions under various land laws will not be applicable in such cases.
  • As the proposed ordinance (which is not yet public) contains a easy provision of land conversion from agricultural to Industrial, it will definitely accelerate the industrialisation process in the state and eventually these industries will be owned by traders and industrialists from outside of Assam.

If the above presumptions are true then why the Bharatiya Janata Party (BJP) led state Government has been incessantly uttering assurances to protect the land of the indigenous people of the state? Why the same government had declared the Land Policy 2019 by which it had again declared its commitment to protect indigenous land right? Why did the state government constitute the Committee for Protection of Land Rights of the Indigenous People of Assam headed by former CEC Hari Shankar Brahma? Similarly we may also pose doubts regarding the high-powered committee which was constituted by the Central Government in July2019 for the implementation of Clause 6 of the Assam Accord of 1985. ((The Assam Accord was signed as a result of Assam Movement that contains a clause 6 that envisages constitutional, legislative and administrative measures to safeguard, protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people. It also seeks to ascertain who fits into the definition of an Assamese).

Historical Apprehension and Legal Restrictions of Land Alienation:

Since the days of the colonial takeover of this part of the country by the British Administration the native people of Assam as well as North East India have been facing indiscriminate land aggression by outsiders. From the very days of the colonial administration and even after independence, the land has become the central issue of conflict between subject versus subject and also the subject versus state. The legal changes that began in the colonial age that do not recognize the difference between the tribal tradition and the formal law are basic to all forms of land alienation. The processes that result in land alienation in Assam could be summarized into the following forms:

  • Encroachment by the immigrant: Immigration into Assam from East Bengal/ Bangladesh and other parts of India. The migrants have occupied very large areas of indigenous lands, taking advantage of the lack of awareness and legal title of the indigenous communities. They have exploited loopholes in the law, or in some areas have simply violated the law, in order to take over indigenous lands.
  • Transfer of the community as well as tribal land to the non-tribal and also to immigrants and outsiders who are non-indigenous of this region. Takeover of lands for infrastructure, industrial, development, military and other projects has also adversely affected the indigenous communities. Much of the land acquired for these projects was either the private property of indigenous people or the common lands that they utilized. The latter have been diverted for these projects without any form of consultation or legal process whatsoever, as they are treated as government lands.
  • Land acquisition by the government for various projects without recognizing community rights,
  • Formal and non-formal takeover of land within the geographical jurisdiction of the state by the concerned government without recognizing the traditional community rights over land and natural resources. The forest laws have been used to expand reserved forests across Assam, further depriving indigenous communities of their forest rights. Jhum cultivation has also been declining, primarily as a result of restrictions placed on it by forest laws.

The apprehension of loosing lands in the hands of aggressive outsiders had also been reflected in the land policy of pre-independence India. The extracts of the proceedings of the Government of Assam in the Revenue Department No R.C8/42/19 also mentioned about the above mentioned aggression as-:

“The problem of the immigrants is not by any means a new one, and has been exercising the minds of district officers ever since cultivators from East Bengal began, over 20 years ago, to arrive in large number and to settle in the districts of Lower Assam, spreading subsequently up to the districts of Upper Assam. Things went sufficiently well so long as these cultivators were engaged in filling up the vacant spaces in the riverain area. But as they drew nearer to the areas held by the indigenous people signs soon became apparent of the clash of interests between them and the local people and of the dangers to the internal life and habits of the latter. In the submontane area in particular, which were predominately peopled by tribal and backward classes, apprehensions were entertained that the introduction of a foreign, advanced and pushing element, if permitted, would spell disaster to the local population. District officers, therefore, in the absence of any clear-cut direction from Government adopted such measures as seemed most likely to prevent, or at any rate check, the spread of immigrants to areas where their entry would have had these detrimental results. In pursuance of this policy, the submontane areas were more or less closed to them; elsewhere where there was a demand for land from the immigrants and the local people, areas in individual villages open to each were delimited by “Lines” and, where the demand for land from the local people was negligible, large blocks extending over several squares miles were constituted into “Colonisation areas” for settlement of immigrants. This is in general outline what is known as the “Line System” a system which, though it has been extensively criticised, has served its purpose as a method of controlling the influx of immigrants and directing it to more or less compact areas instead of allowing indiscriminate squatting all over the province.”

Similarly, most of the policies drafted in the post Independent India centred around the issue of allocating or settling land to the indigenous people and to protect the land of the tribal people. The 1989 Land Policy which was drafted during the regime Asom Gana Paarishad (AGP) government had also specifically spelled about the land allotment/settlement to the indigenous landless people. The relevant portion of the said land policy reads as-“Land at the disposal of the Government for ordinary cultivation may initially be given by way of allotment to indigenous landless persons. After 3 years continuous physical possession by cultivating the same, the land may be settled with allottees, provided the land is found to have been used for the purpose for which it was allotted.”

Now let us come to the legal provisions that restrict agricultural land conversion to non agricultural purposes. The principle that agricultural land cannot be converted for a non-agricultural purpose without adequate safeguards has always held true. A century ago, an Executive Instruction issued on 27.09.1919 by the Government of Assam under the British authorities had enshrined this principle. The said Executive Instruction still holds the field. The executive instruction no 6 enacted under the provisions of Assam Land Revenue Regulations 1886 reads as-“Restrictions on transfer of periodic khiraj leases: Periodic Khiraj Leases issued after 27th September, 1919 contain a clause which forbids transfer, if the holder is a professional cultivator, to a person who is not a professional cultivator, without the previous sanction of the Deputy Commissioner.

After considering all circumstances Government have consented to the enforcement of the clause in all district where the Assam Land and Revenue Regulation in force to proven land passing on a large scale from cultivators to speculations and non cultivators”

Pertaining to this executive instruction, the Land Policy 2019 of the Assam Government contains provisions that exclusively restrict the transfer of agricultural land to any other purposes. Section 9.of this policy reads as:-

9. RESTRICTIONS ON TRANSFERS OF AGRICULTURAL LAND:

9.1.In order to maintain the basic permanent crop land in the State ,the Deputy Commissioners with the assistance of the Agricultural Department shall carry out survey to identify the prime agricultural land parcels of the districts depending upon the fertility of the land, irrigation facility, cropping intensity and annual yield records of such land. Such prime agricultural land of the districts shall be digitally mapped and recorded distinctly in the land records. Deputy Commissioners shall not accord approval for transfer of such land without prior approval from the Government.

9.2. Further, the Deputy Commissioners shall not accord permission for transfer
of land under periodic lease belonging to an agriculturist land holder to a person who is not an agriculturist in contravention of provisions of Executive Instruction-6 under the Assam Land and Revenue Regulation,1886 and other land laws, Endeavour shall be made to bring suitable amendments in existing laws if necessary to further strengthen the measures to check transfer of agricultural land belonging to the agriculturalist to the non-agriculturalist and also for protecting land belonging to indigenous communities of the state.

 Before the declaration of Land Policy of 2019, the Government of Assam constituted a Seven Member Committee headed Mr. Hari Shankar Brahma, former Chief Election Commissioner of India, to examine various aspects of administration of land, including the protection of land rights of the indigenous people of Assam on February 6, 2017. The report submitted by Dr. Rohini Kr. Baruah, Shri Anil Kr. Bhattacharyya, Shri Ajoy Kr. Dutta and Dr. Romesh Borpatragohain recommended ban on Transfer of Land in any form from a Citizen to Non-Citizens, Agricultural Land for non-Agricultural Purposes, from Indigenous to Non-Indigenous and from Protected Class to Non-protected Class of Persons. The question of putting restrictions on transfer of lands in any form from a citizen to non-citizen, from an agriculturist to a non-agriculturist, from an indigenous to a non-indigenous person and from a person belonging to a protected class to one of the non-protected class under Chapter X of the ALRR, 1886 has been discussed and justified by the Committee.

But contravening all the said recommendations and restrictions, the Government of Assam is bypassing the state legislative body and ignoring a healthy public debate on the issue, and thereby enacting the said ordinance that deems to ease out the restrictions of land reclassification. It will definitely open up a land market for the big corporate and land brokers, the process that eventually will uproot lakhs of indigenous small and medium size land holders from their native land.

Rebutting the apprehension raised by the common citizen of the state about this ordinance , State Industry and Commerce Minister Chandra Mohan Patowary on 3rd July made a clarification that the Assam Micro, Small and Medium Enterprises (Facilitation of Establishment and Operation) Ordinance, 2020 is not going to affect the land rights of the indigenous people in any way. Asserting the need of this ordinance to “ease of doing business” in the State, Patowary also said that the ordinance will not affect the restrictions on sale or transfer of agricultural land for non-agricultural purpose as protected under the Assam Agricultural Land (Regulation of Reclassifications and Transfer for Non-Agricultural Purpose) Act 2015. According to this Cabinet Minister the Ordinance does not allow any person to buy or sell any agricultural land for non-agricultural purpose. The bar of agricultural land used or transferred for non-agricultural purpose as provided under the aforesaid Act shall remain as it is and this Ordinance will not affect it at all. He repeatedly emphasised before the media that agricultural land will remain with the agriculturalists only.”The Ordinance does not allow any person to buy or sell any agricultural land for non-agricultural purpose. Therefore, any apprehension that an entrepreneur under the provisions of this Ordinance will buy agricultural land for non-agricultural purpose is totally unfounded…. Instead, if any genuine owner of the agricultural land intends to set up an MSME unit, his agricultural land which is eligible and capable of reclassification as per the provisions of Assam Agricultural Land (Regulation of Reclassifications and Transfer for Non-Agricultural Purpose) Act 2015 will be deemed to be non-agricultural land only for three years,” he said.

Unfortunately the particular provision that enables the conversion of agricultural land to non agricultural category is portraying a totally contradictory picture. According to Section 6(1) of the Ordinance whenever an agricultural land will be used for entrepreneurship purposes it will automatically be converted into non-agricultural land. The relevant section reads as-“ Provided further that any agricultural land on which a person wishes to start an enterprise shall be deemed to be a non-agricultural land under the provision of section 2(p) of the Assam Agricultural Land (Regulation of Re-classification and Transfer for Non-Agricultural Purpose)Act,2015”. It means that the concerned minister is unfolding a different version than the original one. Nowhere in the ordinance has mentioned that only the indigenous person or person belonging to the state of Assam will get the opportunity to start MSME in his/her individual agricultural land. The ordinance and the concerned minister are also silent about the probable environmental consequences of any industry if it is established amidst agricultural land.

The state government has openly made a declaration that for creating an environment for boosting industry in the state, government has brought this Ordinance so that migrant labours who have returned to their native areas during the pandemic could get an opportunity to start industry or any entrepreneurial work in their respective native villages. Surprisingly the state government has yet not announced any special package for these migrant workers to start any industry. So the pertinent question is how these people will establish any industry without having any capital? Had the Assam government thought about these migrant workers,- maximum of which worked outside of the state with minimum salary, it could have announced a proper financial package for these workers before it decided to bring the Ordinance. So, the real motive of enacting this ordinance is something different. If the real intention of this ordinance is to relax or diminish all restrictions regarding land alienation then the land of this frontier region will no longer remain in the hands of its indigenous population.

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Kishor Kumar Kalita Written by:

Kishor is a Guwahati based Advocate and a regular columnist

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