Protecting and Conserving Commons For Common Good-Madhyapradesh PDF

Protecting and Conserving Commons for common good - Needs a fresh legal perspective An Analysis of the State of Madhya
Pradesh
Submitted to Foundation for Ecological Security By Environment Law and Development Foundation In Technical Association with Enviro Legal Defence Firm
May 2011
Protecting and Conserving Commons for Common Good_MP_ELDF
Page 1
Contents Introduction: Commons: A Legal perspective ................................................................... 6 Chapter 1: LAND AS COMMONS .................................................................................... 7 1.1 Constitutional Status ..........................................................................................................7 1.2 Land Reforms and Commons .............................................................................................7 1.2.1 The Big Land Conflict in MP: The Orange Areas Dispute after abolition of intermediaries: .....................................................................................................................7 1.2.2 Ceiling and Consolidation of Landholdings and Vesting: Creation of Surplus Lands and assignment.....................................................................................................................8 1.2.3 Surplus Land for common purpose ..............................................................................9 1.2.4 Colonization and Commons .........................................................................................9 1.3 Land Revenue Legislation and Common Lands .................................................................9 1.3.1 Classification of common lands: ................................................................................ 10 1.3.2 Grant of privilege to cut firewood, timber, fuel or any other forest produce for domestic purposes: Regulated by the revenue department .................................................. 10 1.3.3 Disposal (Assignment) of Common Lands for common purposes: Cannot be diverted .......................................................................................................................................... 10 1.4 Resumption of Common Lands ........................................................................................11 1.5 Common Lands and Grazing ............................................................................................ 11 1.5.1 Allocation of Pasture Land during Survey and Settlement Operations and where such lands are not earmarked in villages ..................................................................................... 11 1.5.2 Criteria for allotting Land for Common Purposes: Special emphasis on pastures ....... 11 1.5.3 Process of Allocation of Lands for Common Purpose: No express provision for resolving disputes............................................................................................................... 12 1.5.4 Regulating pasture lands ............................................................................................ 12 1.6 Allotment of Land for Extension of Abadi .......................................................................13 1.7 Survey and Recording of Rights: Legal Position .............................................................. 13 1.7.1 Nistar Patrak and Wajib- ul-arz in Madhya Pradesh- Public Right over Public Lands and Private Lands............................................................................................................... 13
Protecting and Conserving Commons for Common Good_MP_ELDF Page 2
1.8 Protecting Public Lands: Panchayat to assist revenue officials ......................................... 14 1.9 Competitive Industrialisation within State: Commons is the first victim ...........................14 1.9.1 Common Land resources: Land use shift from agricultural co-operatives to industrial projects .............................................................................................................................. 14 1.10 Significant legal developments on common lands ..........................................................15 1.10.1 Land Use Planning and Management: Role of State Land Use Board....................... 15 1.11 Role of Panchayat and Common Lands .......................................................................... 15 1.11.1 Vesting of commons in Panchayats in M.P: Conditions, restrictions, resumption. ....15 1.12 Scheduled Areas and Position of Commons ...................................................................16 1.12.1 Delineation of community resources in scheduled areas not yet done....................... 16 1.12.2 Prior Consultation of Gram Sabha or Panchayat at appropriate level for acquisition of land .................................................................................................................................... 16 1.13 Restoration of Common Lands: ...................................................................................... 17 Chapter 2: FOREST AS COMMONS.............................................................................. 18 2.1 Legal Framework on Forest in Madhya Pradesh ...............................................................18 2.1.1 What is a legal forest.............................................................................................. 18 2.1.2 Categories of Forests: ................................................................................................ 18 2.1.3 Centralising Forest Conservation: .............................................................................. 19 2.2 Forest Commons in Madhya Pradesh: Some Trends ......................................................... 19 2.2.1 Village Forests: Legal space for community in management of forest resource:.........19 2.2.2 Deemed Reserve Forest: ............................................................................................ 19 2.2.3 Forest Villages: .........................................................................................................20 2.4 Recognition of Rights in Various Categories of Forests ...................................................21 2.4.1 Rights and Claims of Forest Dwellers in the Settlement Process: ............................... 21 2.4.2 Recognizing Communal Rights in creating Reserve Forests ......................................21 2.4.3 The Contours of The Claims!- Total discretion of the Forest Settlement Officer ........21 2.4.4 Constitution of Reserve forests on wastelands leaves a lot of ambiguity for communities....................................................................................................................... 22
Page 3
2.4.5 Bar of accrual of forest-rights: Both under IFA and WLPA Status quo is dangerous .......................................................................................................................................... 22 2.4.6 Commutation of Rights: Money in lieu of rights? ...................................................... 22 2.4.7 Claim to Carry out Shifting Cultivation: Only a privilege! .........................................23 2.5 Regulating Use of Forest Commons: ................................................................................ 23 2.5.1 Concept and emergence of Nistar and Nistar Patraks in Madhya Pradesh ..................23 2.6 Creation of Protected Areas and Implications on the Right to Access and Use: ................ 24 2.6.1 Sanctuary and National Park: Restricted but rights possible in Sanctuary but not in national park! .....................................................................................................................24 2.6.2 Creation of a Conservation reserve and a community reserve: Creating wildlife commons ...........................................................................................................................25 2.7 Panchayat and Forest Commons ...................................................................................... 26 2.7.1 The Role of Panchayat and forest commons in Madhya Pradesh ................................ 26 2.8 State Monopoly on Forest Produce: Impact on Commons: ............................................... 27 2.8.1 Nationalizing Forest Produce: An example of Madhya Pradesh: ................................ 27 2.8.2 Minor Forest Produce: Nationalization laws need overhaul in light of FRA and PESA.......................................................................................................................................... 28 2.9 Reducing dependence on Commons though Lok Vaniki: ................................................. 28 Chapter 3 WATER AS COMMONS................................................................................ 30 3.1 Locating Water in the Indian Legal Map: .........................................................................30 3.2 Constitutional Position: .................................................................................................... 30 3.3 Water law framework in Madhya Pradesh- legal spaces for community rights over water commons do not exist ............................................................................................................ 30 3.3.1 State as the ultimate custodian of surface water ......................................................... 31 3.3.2 Water commons: the general legal framework pertains exclusively to farmers rights over water resources........................................................................................................... 31 3.3.3. State Control over all water resources for irrigation- Balancing agriculture needs with Common water rights of non agricultural communities ............................................... 32 3.4 Recognition of Rights in Water Commons ....................................................................... 32 3.4.1 Preparation of irrigation record of rights .................................................................... 32
3.4.2 The Madhya Pradesh Land Revenue Code, 1959 and Panchayat laws - An exception to the general water law framework in the state ...................................................................... 32 3.5 Panchayats have a key role in the protection of communitys water resources: ................. 33 3.5.1 Panchayat and Water commons ................................................................................. 33 3.5.2 Irrigation Panchayat: Management under the act........................................................34 3.6 Regulation of Water Commons ........................................................................................34 3.6.1 Regulation and Prohibition of use of water sources: Panchayats empowered in M.P. . 34 3.6.2 Surface water resources regulation ............................................................................34 3.7 Rights over Common Water Resources in the Scheduled Areas .......................................35 3.7.1 Scheduled areas and minor water bodies in M.P.: Gram Sabha to play advisory role .35 3.8 Regulating Ground Water: ............................................................................................... 35 3.9 Protecting Watersheds: A decentralized structure is the first step ..................................... 36 3.9.1. Jal Abhishek: Conserving Water commons: .............................................................. 37 3.10 Participatory Approaches to Water Commons: A Long Way to Go ................................37 3.10.1 Water User Associations, Farmers Participation and Constitutional mandate of Panchayats: Need for Synergies .........................................................................................38 Chapter 4: FISHERIES AS COMMONS ........................................................................ 39 4.1 Constitutional Position ..................................................................................................... 39 4.2. Fisherfolks Rights Law? : Securing Tenure on fisheries commons .................................. 39 4.3 Fisheries in the state......................................................................................................... 39 4.3.1 Institution and Jurisdictional body of fisheries commons: .......................................... 40 4.4. The Policy Framework .................................................................................................... 40 4.5. Laws that directly regulate fishing activities.................................................................... 40 4.5.1. The Regulation of Fishing: Repeal of Indian Fisheries Act in the state......................40 4.5.2. Measure for sustenance of fisheries resource ........................................................... 40 4.5.3. Regulation of Fishing ............................................................................................... 40 4.5.4 Absence of clear definition on key terms such as fishing and fishing vessel doesnt help in managing fisheries commons ..................................................................................41
Page 5
4.6. Nistar Rights over fisheries and access and use rights over village water bodies having fish resources in Madhya Pradesh ................................................................................................. 41 Concluding Remarks: ....................................................................................................... 42
Protecting and Conserving Commons for common good - Needs a fresh legal perspective An Analysis for the State of Madhya Pradesh
Introduction: Commons: A Legal perspective Commons in a strictly legal sense maybe defined to be those lands in which rights of common exist,1 the use of which is not appropriated to an individual, but belongs to the public or to number2 . Commons are also defined to mean a tract of land set aside for the general public use3. Commons also needs to be distinguished legally as a right or privilege4 which one or more persons have to take or use some part or portion of that which is another persons land, waters, woods, etc produce. Common property resources thus broadly include community pastures and forests, wastelands, common dumping and threshing grounds, watershed drainages, village ponds, rivers, tanks, irrigation channels and other common pool water bodies as per the various legal texts explained in more detail later. Although there are various approaches to understanding commons what is less understood is the role of law in regulating commons and how an inadequate legal framework can impact commons in terms of its use, access, conservation and acquisition. It is increasingly clear that conflicting laws and policies, different state priorities and legal uncertainties on commons can result in its total decimation and mostly affect the already affected the marginalised especially in rural and tribal India. This paper makes a humble attempt to critically examine the legal spaces within which common pool resources exist in the State of Madhya Pradesh and how national and state actions in terms of their policy and legal choices are impacting them and thereby affecting the marginalised who perhaps are most dependent on them. Four categories of common resources have been chosen namely- land, forest, water and fisheries to demonstrate whether the legal choices made for their regulation have demonstrated intent to sub serve common good or have resulted in disregard of the common purpose. It is our contention that the past legal arrangements may not be adequate and the commons need a fresh approach if they have to survive for the larger sustainability of the rural and urban poor. With this backdrop let us study the legal framework on Land, Forest, Water and Fisheries in Madhya Pradesh.
Sweet Law Dictionary Century dictionary 3 The Blacks Law Dictionary, 8th Edition, 2004 4 Rights of course have to be distinguished from privileges. Simply put rights are enforceable whereas privileges are revocable.
2
Page 6
Chapter 1: LAND AS COMMONS 1.1 Constitutional Status Under the constitutional allocation land has been put as entry 18 in state list. Hence state governments have the authority to legislate over this subject matter. Land related legislations have developed primarily for exploitative or productivity or revenue collection standpoints as a British legacy. Post independence, the land reform legislation in India by and large consisted of four main categories: abolition of intermediaries who were rent collectors under the preIndependence land revenue system; tenancy regulation that attempts to improve the contractual terms faced by tenants, including fixation of rent and security of tenure; a ceiling on landholdings with a view to redistribute surplus land to the landless; and finally, to consolidate fragmented landholdings to increase land productivity. The land revenue legislations have been the key legal framework for regulating commons. Other legislations on land such as Land Acquisition and Land transfer have also impacted commons. Let us analyse how access, use and conservation of common lands have been governed in different land reform legislations in the state of Madhya Pradesh. 1.2 Land Reforms and Commons Post- Independence, many land reform measures were taken by different states such as abolition of intermediaries, ceilings on land holdings, consolidation and prevention of fragmentation of holdings as explained earlier. All these measures resulted in creation of surplus land which became vested in the state governments and were later assigned or allotted following different public purposes. The manner in which they have been vested and dealt with in the state of Madhya Pradesh and the impact of state action on common lands has not always been systematic or easy. A quick analysis would be the focus of this Chapter including some persistent big issues on land conflicts. One big debate which is still unresolved is the orange area dispute. 1.2.1 The Big Land Conflict in MP: The Orange Areas Dispute after abolition of intermediaries The abolition of intermediaries in the Central Provinces and Berar area (present day Central India including Madhya Pradesh and Chhattisgarh) resulted in huge areas of forest to be vested in the state. The settlement process of the erstwhile princely lands which included a number of forestland and which were acquired after the Zamindari Abolition Act in 1950 has been far from satisfactory. Huge chunks of such lands were demarcated as proposed reserved forests and the remaining were termed as left out areas or Orange Areas 5 where settlement would be jointly done in consultation with the forest department. The settlement records namely the Missal Bandobast and the Adhikar Abhilekh (Record of rights) and working plans of the Forest
5
Areas colored as orange on the maps prepared by the patwaris as their status were uncertain! Page 7
Department points towards the fact that the exact title of several pieces of land is still unclear in the State of Madhya Pradesh and Chhattisgarh. There is ample evidence that there are huge areas of lands that have been doubly entered in both revenue and forest records. Infact the statistics of the forest department places the forest area as 1, 54, 505.09 square kms and the revenue department and commissioner land records claim that the total forest area in the State is 1, 42, 110.32 square kms. This in effect means that the status of an area of 12, 394.77 square kms (approximately 30, 62,871. 6 acre) is not clear at the highest level of the Government in the State6. In fact several such lands have been transferred from forest department to revenue department, which have not been found fit to be reserved albeit on paper 7. Further, on several such disputed lands, valid leases (patta) have been given by both revenue and forest department through various schemes. Wherever these leases have expired or where the family has grown such the additional members have remained in these places for want of better options. These people are formally dubbed as one of the several categories of encroachers. The biggest fall out of such uncertainty is that fact that these areas that were transferred were used as commons and with the legal uncertainty as many as fifteen lacs families have been affected in the state of M.P. and Chhattisgarh who were dependent on these common resources. The outcome of the petition would be significant as it will impact a huge marginalised population who still live alife of uncertainty. 1.2.2 Ceiling and Consolidation of Landholdings and Vesting: Creation of Surplus Lands and assignment Numerous ceiling laws on agricultural land such as the M.P Ceiling on Agricultural Holdings Act, 1960 also created surplus land where such Acts aimed at fixing ceiling area and for the state government to take over surplus land and for its redistribution to subserve the common good. The above Act provides for maximum extent of land to be held by individual or family8. Similarly, Chapter XVI Consolidation of Holdings of the M.P Land Revenue Code, 1959 was formulated to ensure that fragment of land holdings are amalgamated to ensure an economic holding for increasing productivity of the land for increased yield. The procedure for consolidation provides for preparation of a scheme for the land holdings within a village in consultation with the village committee. The surplus land created by such measure which gets vested to the state can be allotted to the following persons: i. Agricultural labourers- (a) belonging to SC and ST; (b) others
Figures sourced from the Petition on Orange Areas filed by Enviro Legal Defence Firm before the Centrally Empowered Committee and the Supreme Court. See IA No. 2000 and 2000A in CWP No. 202 of 1995. 7 In fact a peoples organization has approached the Supreme Court through the Consultant with a view to enforce the State to take a stand and consequent actions to put an end to the Orange Areas dispute. The case is sub-judice i.e pending in the Court. 8 Sec 7, The M.P Ceiling on Agricultural Holdings Act, 1960. Protecting and Conserving Commons for Common Good_MP_ELDF Page 8
ii. iii. iv. v. vi. vii. viii. ix. x.
Joint farming society, the members of which are agricultural labourers or landless persons whose main occupation is cultivation or manual labour on land, or combination of such persons Better farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or combination of such persons Freedom fighters Displaced tenants Holders of contiguous land Joint farming society of agriculturist Better farming society of agriculturist Any other co- operative farming society subject to the conditions that land (including the land as owners or tenant individually by members) shall not exceed the area equal to the number of members multiplied by the ceiling area. An agriculturist holding lands less than the ceiling area9. 1.2.3 Surplus Land for common purpose
The Ceiling Act also provides that State Government shall direct surplus land consisting of compact area to either be reserved for government farm or allotted to co-operative societies or any other public purpose which will include common purposes as well10. 1.2.4 Colonization and Commons The Act provides for establishment of colonies in the Gram Panchayat area11. Any person can undertake to establish a colony in the Gram Panchayat area for the purpose of dividing land into plots, with or without developing the area, or for constructing residential, non- residential or any composite accommodation12. This provision provides for colonization of common Panchayat land for which the person is required to seek permission from the Sub-Divisional Officer (Revenue)13 for using the Gram Panchayat area for above mentioned purposes. 1.3 Land Revenue Legislation and Common Lands Apart from the land reforms its also important to have an overview of the manner in which the current statutory framework on land including common land exists. The Land Revenue Code of Madhya Pradesh (hereinafter Code) is the primary legislation governing access and use of land. The Code consolidates all the previous legislations related to land revenue, amends the law relating to land revenue and prescribes the powers of the Revenue
Sec 35 of the M.P Ceiling on Agricultural Holdings Act, 1960 Sec 35, M.P Ceiling on Agricultural Holdings Act, 1960 11 Sec 61-A M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 defines Gram Panchayat Area as such area which is situated 16 kms from the limit of Municipal Corporation, 8 kms from Municipal Council or Nagar Panchayat, 3kms from urban areas, 1 km from national highway or public road. 12 Sec 61-B M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 13 Sec 61-B M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993
10 9
Page 9
officers, rights and liabilities of holders of land from the State Government, agricultural tenures and other matters relating to land. The Land Revenue Code vests all land, standing and flowing water, mines, quarries, minerals and forests in the state government14. 1.3.1 Classification of common lands The Code classifies land into occupied and unoccupied categories, the former being land under abadi15, a bhumiswami16, tenant or a government lessee. Thus as per the Code all land belongs to the State Government17 and all landholders18 are Bhumiswamis as there is no other category of landholder under the Code19. The definition of Bhumiswami is an inclusive definition where it includes different types of land holder as provided under different land Codes or Acts which prevailed in the parts of the MP before coming into force of the MP LRC20. 1.3.2 Grant of privilege to cut firewood, timber, fuel or any other forest produce for domestic purposes: Regulated by the revenue department The Code provides for preparation of Nistar Patrak which shall provide for matters relating to terms and condition on which the residents may obtain wood, timber, fuel or any other forest produce21. The Collector shall set aside a minimum of 2 percent of agriculture land for the purpose of obtaining firewood, timber, fuel or any other forest produce by the community22. 1.3.3 Disposal (Assignment) of Common Lands for common purposes: Cannot be diverted It is also important to examine how the land vested with state has been assigned or allotted for common purposes under the legal frame. Here a distinction is being made between assignment and allotment. The former being more in the nature of privileges and the latter being with a little more secured tenure. In M.P the Collector has the power to assign the land vested in the State Government for free pasturage for village cattle23, or any other public purpose24. However, the Code has put public purpose as schools, play grounds, parks, road, lanes, drains and the like. What is important, however, that such lands assigned specially for any such purpose shall not be otherwise used without the sanction of the Collector25.
14 15
Sec 57, M.P Ceiling on Agricultural Holdings Act, 1960 Defined under section 2 (a) as area reserved from time to time in a village in non- urban area for the residence of the inhabitants thereof or for the purposes ancillary thereto. 16 Defined under section 158, MPLRC, 1959. 17 Section 57 of the Madhya Pradesh Land Revenue Code 1959 18 Holding as defined under the M.P. Land Revenue Code is a parcel of land which is separately assessed for land revenue and is held under one tenure and any holder of such land is a landholder. 19 Section 157 of the Madhya Pradesh Land Revenue Code 1959 20 Section 158 of the Madhya Pradesh Land Revenue Code 1959 21 Sec 235, Madhya Pradesh Land Revenue Code 1959. 22 Sec 237, Madhya Pradesh Land Revenue Code 1959. 23 Sec 236, Madhya Pradesh Land Revenue Code 1959. 24 Sec 237, Madhya Pradesh Land Revenue Code 1959. 25 sec 237 (2), Madhya Pradesh Land Revenue Code 1959. Protecting and Conserving Commons for Common Good_MP_ELDF Page 10
1.4 Resumption of Common Lands In M.P. the Panchayat Raj legislation itself empowers the state government to resume any such property vested in the Panchayat which it has vested to the Gram Panchayat 26. By implication any common land may also be resumed by the state government. 1.5 Common Lands and Grazing Classification for grazing and pasturage has emerged as the most common method of using common lands. It is therefore, important to not only understand this preference of treating common lands with grazing but also to examine the manner in which such grazing lands are regulated through various legislations in the study state. 1.5.1 Allocation of Pasture Land during Survey and Settlement Operations and where such lands are not earmarked in villages If no land has been earmarked for common purposes, while preparing Nistar Patrak ( or simply record of rights), the Collector can make provisions for free grazing of cattle used for agriculture, removal of forest produce and minor minerals for their bonafide domestic consumption27 1.5.2 Criteria for allotting Land for Common Purposes: Special emphasis on pastures As mentioned earlier, the allocation of land for pasturage, grass reserves or fodder reserves is left at the discretion of the Collector. There are no criteria mentioned in the Code. An occupied land can be set apart for the bonafide household consumption and common purposes of the village as follows: For timber or fuel reserve For pasture grass bir or fodder reserve, For burial ground and cremation ground For gaothan For encamping ground For threshing floor For bazaar For skinning ground For maure pits For public purposes such as schools, play grounds, parks, road, lanes, drains and the like For any other purposes which may be prescribed for the exercise of right of nistar such as extraction of murroom, kankar, sand earth, clay, stones and other minerals and irrigation and other water rights.28 Land for grazing and development of grass reserves have been given special emphasis in the provision. The Collector while allocating land for above mentioned purposes has to ensure that the land for pasture and fodders reserves is a minimum of 2% of the total abadi or agricultural land of the village. It is to be noted that this percentage was 5% earlier. The Rule 3 of the Rules
26 27
Sec 62,M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 Section 236, Madhya Pradesh Land Revenue Code 1959. 28 See Rule 3, Rules made under Section 234 and 237 regarding preparation of Nistar Patrak. Protecting and Conserving Commons for Common Good_MP_ELDF Page 11
framed under Section 237, framed in 1999 provide for minimum of 5% allocation. 29 However, vide another amendment in 2000, 5% was reduced to 2%, but this change was not made in the Rules mentioned above. Such reduction in allocation of land for common purposes of the village impacts the livelihood of the marginalized dependent on these commons and ambiguity in the provisions of the Code and Rules add to this. However, the land allocated for above mentioned purposes cannot be used for any other purpose other than the one for which it has been allocated, without the sanction of the Collector.30 Besides, if the Collector is of the opinion that the waste land of any village is insufficient, he may after such enquiry grant the residents of that village the right of grazing cattle in the neighboring village to the extent specified in the order.31 1.5.3 Process of Allocation of Lands for Common Purpose: No express provision for resolving disputes The Collector after allocating the unoccupied land for common purposes and recording it in Nistar Patrak publishes it in the village and nearby villages and invites objections and suggestions of persons interested, on the entries within 15 days of such publication. On the assigned day, a meeting of the entire village is called by the Collector in Chaupal, gudi or Chaudi or any other suitable place to consider objections and suggestions made. After hearing the interested persons the Collector may reject or accept the objections and accordingly passes an order altering the area allocated for common purposes and making changes in the Nistar Patrak. The final Nistar Patrak is then read out in the village and a copy of it can be obtained from patwari, or with the patel, Gram Panchayat or Gram Sabha. 32 The above process of allocation of land for common purposes of the village requires Consultation with the village community. Collector is the ultimate authority to adjudicate on the claims made or objections raised. In case of conflicting claims between two or more villages, in the absence of an express provision it can be safely assumed that the Collector is the final authority to adjudicate. However, there is no provision of appeal against the decision of the Collector. 1.5.4 Regulating pasture lands As mentioned earlier the Collector is fully empowered to allocate unoccupied land for commons, to divert such land for any other purpose. Besides, the Collector also decided the terms and conditions for the use of allocated land for grazing , collecting minor forest produce, burial grounds, cremation grounds, threshing floors, for extracting minor minerals, irrigation among other. These terms and conditions are also recorded in the Nistar Patrak. However, while
29 30
Rules under section 237 framed vide notification no. F-2-28-VII-Section 8-97 part 3, dated 8-3-1999 Section 237, Madhya Pradesh Land Revenue Code 1959. 31 Sec 238, Madhya Pradesh Land Revenue Code 1959. 32 See Rule 4,5,6,7,8, Rules made under Section 234 and 237 regarding preparation of Nistar Patrak. Protecting and Conserving Commons for Common Good_MP_ELDF Page 12
deciding the terms and conditions for use, due regard shall be given to the customs and traditions of the village community. 33 1.6 Allotment of Land for Extension of Abadi The State Government can allocate unoccupied government land for abadi in case the land already set apart for abadi purposes is insufficient. If unoccupied government land is not available then the government has the power to acquire land as per the provisions of Land Acquisition Act. In such a scenario common lands are the first victims. 1.7 Survey and Recording of Rights: Legal Position While assignment, allotment and classification are important, what is paramount is the manner in which such common lands are recorded and it is only such formal record or rights that gives legal sanctity and security to common lands for the marginalized and the dependent. It would therefore be useful to examine the legal process in place for recording such rights to commons especially common lands in some of the study states. 1.7.1 Nistar Patrak and Wajib- ul-arz in Madhya Pradesh- Public Right over Public Lands and Private Lands There is a specific chapter in the M.P. Land revenue Code which deals with the rights in abadi and unoccupied land and its produce. The Code provides for maintaining a record of rights called Nistar Patrak for this purpose and the Sub Divisional Officer (SDO) is empowered to prepare these records.34 The first draft of the record is to be circulated in the villages to ascertain the wishes of the residents of the village in the prescribed manner and the record shall then be finalized 35. The land recorded under nistar is set out for timber, fuel, reserve, pasture, grass, fodder reserve, burial or cremation ground, gaothan, encamping ground, for threshing floor, bazaar, skinning ground, manure pits etc. The land set apart specifically for such purpose cannot be diverted for any other purpose without the permission of the Collector. The code also provide for ascertaining and recording the customs in each village in regards to right to irrigation, right to way, other easement rights and right to fishing in any land or water not belonging to or controlled or managed by the State Government or a local authority and such record shall be called wajib-ul- arz of the village. The State Government has also formulated Rules relating to Wajib-ul-arz which provide the procedure for ascertaining and recording such customs and also enumerates the kinds of rights to be recorded as wajib-ul-arz. Lately, Madhya Pradesh has prepared a largest database of Land records in the country. Land Records of all revenue villages have been computerized, i.e. the textual data of land records are 100% converted into electronic form. Computerized land records are modified on regular basis with the facility of automatic weekly backup. Record of thirty five million Khasra (Plot/Survey) numbers comprising of eleven million landowners have been computerized 36. This is a
33 34
Form A, Rules made under Section 234 and 237 regarding preparation of Nistar Patrak. Nistar Patrak is the record, which embodies the scheme of all unoccupied land in a village and all matters incidental thereto which is marked for nistar. 35 Section 233 and 234 of the Madhya Pradesh Land Revenue Code 1959 36 .(http://www.nic.in/sites/upload_files/nichome/files/projects/25.pdf) Protecting and Conserving Commons for Common Good_MP_ELDF Page 13
constructive step towards reserving the records for posterity, ensuring easy accessibility to the public and also for removing ambiguities in the records. It is another matter as to what is the quality and correctness of such data. 1.8 Protecting Public Lands: Panchayat to assist revenue officials One of the important issues concerning the public land is protection of such from the unauthorised possession. When such land comes under unauthorised possession the people not only lose their rights over such land but also the revenue department losses in regard to such land. The Code authorises the Tehsildar to get such land evicted on the request of the Gram Panchayat. Thus for example, if a person is found to be in illegal possession of any unoccupied land, or land set apart for common purposes mentioned above, among others, the Gram Panchayat has the power to pass a resolution for removal of unauthorised possession of common land in the village. On receipt of the resolution of the Panchayat the Tehsildar takes action to remove such encroachment and levys fine on the encroacher within 30 days of receiving the resolution and informs the Gram Panchayat of the action taken by him.37 This is a good provision and theory of restoring commons and must be implemented with full vigour in practice. 1.9 Competitive Industrialisation within State: Commons is the first victim Another dangerous trend that is now visible post globalisation with enough evidence is the rush for attracting foreign investments and one of the prime motivators is availability of public lands. Clearly, the commons is the first victim to such mindless industrialisation. 1.9.1 Common Land resources: Land use shift from agricultural co-operatives to industrial projects To steer the state on the road to economic development and industrialisation, the industrial policy assures easy availability of land. It proves that the State Government will allot land/sheds to entrepreneurs on 99 years lease on the condition that the land use will remain for industrial purposes only. During this period, the State Government will have the right to increase lease rent, as per rules. The entrepreneur will not have the right to sell the land which has been leased to him. Change of land use will not be permitted without the permission of the State Government. The lease is liable to be cancelled on violation of the conditions of the lease deed 38. The other issue is that of wasteland. The area of wastelands is currently assessed at 59.23 lakh ha, which is about 19.31 percent of the total geographical area of the state and 17 percent of the total wasteland of the country. The state aims to utilise the large chucks of wasteland for the plantation of biofuel yielding plantations. The plan proposed to cover 20 percent of the total wastelands of the state, which is about 11.85 lakh ha, through plantation of biofuel yielding species over next 10 years along the creation of livelihoods opportunities for rural poor. One of the major initiatives towards this direction has been the formulation of a Policy in 2006 for Allotment of Non Forest Waste Land by Madhya Pradesh State Agro Industries Development Corporation Limited. The policy document defines the potential beneficiaries, which include the
37 38
Sec 248, Madhya Pradesh Land Revenue Code 1959. M.P Industrial Promotion Policy, 2004 Page 14
individuals and also the corporate houses, mainly to promote the concept of 4Ps (Panchayati Raj Institutions, Public, Private Partnership) for production of biofuels39. The policy also advocates concessions to Mega Projects in allotment of land. Industrial units having fixed capital investment of Rs 25 crore and above (excluding working capital) would be treated as Mega projects. 5 to 20 acres land at concessional rate of 25 percent of the stipulated premium rate would be made available to such projects, depending upon the size of investment. Clearly, in the absence of adequate legal safeguards, common lands are being diverted to fulfil the requirements of expanding industrialisation in the State. 1.10 Significant legal developments on common lands Several legal development of considerable significance for common lands have taken place nationally, one among them is land use planning and management and the manner in which the states have responded especially after the National Wastelands Boards initiatives of creating the State Land Use Boards (SLUBs). 1.10.1 Land Use Planning and Management: Role of State Land Use Board State Land Use Board (SLUB) were formed as an apex body in every state with major objectives of providing policy directive for sustainable development of land resources, ensuring close coordination among various land user departments and initiating necessary steps for integrated planning for optimal use of available land resources. Key functions of SLUBs are: firstly to formulate and implement Land Use Policy, secondly, to launch massive awareness campaign for promotion of scientific land use even at village level/Panchayat level to make the task of preservation of land resources as mass movement, thirdly to implement 19 point on National Land Use Policy Outlines (NLPOs) fourthly, prepare perspective plan, formulate launching of development scheme in light of suggestion emerged in the perspective plan Madhya Pradesh State Land Use Board was formed in 2002 but has not made much progress in towards streamlining the land use in the State. As of today, the state does not have a land use policy. 1.11 Role of Panchayat and Common Lands Perhaps the most important and decentralised institutional arrangement that can preserve or destroy common lands is the institution of local self government i.e. the Panchayats. Let us examine the role of Panchayat in managing and conserving common lands in Madhya Pradesh 1.11.1 Vesting of commons in Panchayats in M.P: Conditions, restrictions, resumption The Panchayat Raj Act of MP provides that the State Government can vest certain property in Panchayat subject to such conditions and restrictions as the state government may think fit to impose on such property40. However, this provision does not lend exclusive control of Panchayat
39 40
http://mprlp.in/downloads/TCPSU/A005%20Biofuels.pdf Sec 62, M.P Panchayat Raj Avam Gram Samaj Adhiniyam, 1993 Page 15
over such property vested. The government retains the power to resume such property without payment of compensation. Panchayat Raj Act or the Land Revenue Code does not vest the power to regulate the access and use of common lands in the Panchayat. Nevertheless, Gram Panchayat has been given the power to remove hindrances, obstruction and encroachment upon public streets, open sites or grazing or on any other land not being private property. In addition if the encroacher has cultivated grazing or other common lands, Panchayat can confiscate any crop grown on such land.41 Ideally, common lands should be under the control of the local bodies to benefit the poor and marginalized dependent on them and also for their conservation. But as seen from above, the Government of MP has not devolved effective control over common lands on Panchayats and on the Gram Sabha and diversion of common lands for other public purposes is left to the discretion of the Collector, thereby, lending insecurity of livelihood to the millions dependent on them for sustenance. 1.12 Scheduled Areas and Position of Commons Having understood the Panchayat framework above generally it would be relevant to assess the commons in the scheduled areas42. As is well known that the Panchayat provisions were not automatically applicable to scheduled areas and another special legislation namely the provisions of Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) was enacted. PESA legally recognizes the right of tribal communities to govern themselves through their own systems of self-government and also acknowledges their traditional rights over natural resources. PESA assumes that the Gram Sabha (the village assembly) is competent to safeguard and preserve the traditions and customs of the people, their cultural identity among others community resources. 43 It also empowers the Gram Sabhas to play a key role in approving development plans, controlling all social sectors and more importantly in arriving at a decision regarding land acquisition as well as preventing land alienation among others.44 1.12.1 Delineation of community resources in scheduled areas not yet done The states where scheduled areas exist have delineated what would constitute community resources and how this power will be operationalised. No Rules exist regarding this. 1.12.2 Prior Consultation of Gram Sabha or Panchayat at appropriate level for acquisition of land Besides, central PESA also explicitly states that prior consultation with the Gram Sabha or the Panchayat (as prescribed by the State Government) shall be done before any land in the village is acquired for development purposes or any resettlement or rehabilitation of people affected by
41 42
Section 53, M.P Panchayat Raj Avam Gram Samaj Adhiniyam, 1993 The term `Scheduled Areas' (Article 244(1)) has been defined in the Indian Constitution as "such areas as the President may by order declare to be Scheduled Areas". Paragraph 6 of the Fifth Schedule of the Constitution prescribes procedure for scheduling, rescheduling and alteration of Scheduled Areas. The states that have scheduled areas are Andhra Pradesh, Jharkhand, Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Chhattisgarh, Orissa and Rajasthan 43 Section 4(d), PESA. 44 Section 4, Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996. Protecting and Conserving Commons for Common Good_MP_ELDF Page 16
such acquisition is carried out. In Madhya Pradesh, executive instructions have been issued. But in no case the Land Acquisition Act itself has been amended. However, some other concerns on the subject remain. For instance, under the central PESA if the Gram Sabha or the Panchayat is consulted and they deny a proposed acquisition, then whether a recourse is available to either the State or to the project proponent is unclear. It is also important that the Bhuria Committee Report on whose recommendations the central law on PESA came into being - had advocated for prior consent of the Gram Sabha /local village community before making acquisition of land in Scheduled Areas. The use of the word consultation under PESA instead of consent significantly waters down the power vested with the Panchayat45. The M.P amendments to its Panchayat Act are silent on this aspect and do not provide any such power of prior consent to Gram Panchayat. 1.13 Restoration of Common Lands: The Land Revenue Code makes certain penal provisions towards preservation of those lands which has been set apart for common purposes of the village, from unauthorised use. . The person in possession may be summarily ejected by order of the Tehsildar. The person shall be liable to pay at the discretion of the Tahsildar the rent of the land for the period of unauthorised occupation at twice the rate admissible for such land in that locality and a fine which may extend to Rs. 5000 and in case the encroachment continues after the date of first ejectment an additional fine which may extend to Rs. 20 for every day on which such unauthorised occupation or possession continues after the date of first ejectment shall also be levied 46.
45
The difference between the two words is the difference between right to consultation before acquisition and the right to deny the acquisition. 46 Sec 248, Madhya Pradesh Land Revenue Code 1959 Protecting and Conserving Commons for Common Good_MP_ELDF Page 17
Chapter 2: FOREST AS COMMONS 2.1 Legal Framework on Forest in Madhya Pradesh Forests belong to the concurrent list in the Constitution which means that both centre and the state government have the power to legislate on this subject matter.47 The primary legislations governing access, use and conservation of forest and forest produce in the entire country are the Indian Forest Act, 1927 (hereinafter IFA) and the Forest Conservation Act of 1980(hereinafter FCA). Madhya Pradesh has adopted IFA framework with certain state amendments and FCA. This chapter will attempt to describe forestry legislative framework in Madhya Pradesh and how forest as commons have been treated. The focus will be on analyzing how Madhya Pradesh has tried to balance the conflicting objectives of livelihood and conservation. But before exploring this question, let us understand the term forest itself. 2.1.1 What is a legal forest The term forest was not defined in any forest related legislation. It is only the Supreme Court in the ongoing Godavarman Case 48 in its Order dated December 12 1996 which for the first time gave a definition which was nationally applicable to the term forest. It stated, The word forest must be understood according to its dictionary meaning. The term forest lands occurring in section 2 of Forest Conservation Act, will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government records, irrespective of the ownership. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of the Forest Conservation Act (FCA). Similarly the term forest land, occurring in Section 2 of FCA, will not only include forest as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership49. On a close examination of this order it is interesting to note that forestland includes the definition of forest apart from any area that may be recorded as forest in the government record irrespective of ownership. 2.1.2 Categories of Forests: The Indian Forest Act which is applicable in the state establishes three categories of forests50. The most restricted category being the "reserved forest." In reserved forests, most uses by local people are prohibited unless specifically allowed by a forest officer in the course of "settlement.51 In "protected forests," the government retains the power to issue rules regarding the use of such forests, but in the absence of such rules, most practices are allowed.52. Among other powers, the state retains, a power to reserve specific tree species in protected forests which has been used to establish state control over trees whose timber, fruit or other non-wood products
47 48
Entry 17A, List III of the Constitution of India, Schedule VII. (1997) 11 SCC 605 49 Note that the distinction here is between forest and forest land. 50 However in RLEK vs Union of India AIR 1988 SC 2187 , the Supreme Court saw the Indian Forest Act dealing with four categories of Forests namely, 1. Reserve Forests in Chapter II. 2. Village Forests in Chapter III. 3. Protected Forests in Chapter IV. 4. Non-Government Forests in Chapter V. 51 Indian Forest Act, Sections 3-26. 52 Id. Sections 29-34 Protecting and Conserving Commons for Common Good_MP_ELDF Page 18
have revenue-raising potential. A third classification is "village forests" in which the state government may assign to "any village-community the rights of Government to or over any land which has been constituted a reserved forest."53 Little use has been made of this provision in regard to the state of M.P. as also in other states in the country. It is pertinent to mention here that the constitutional and statutory powers on forests are interpreted by the government only in terms of rights without any co-related duties i.e. as absolute rights to use the forest land and resources in any way the government deems it proper. None of these constitutional provisions or statutes (including the Indian Forest Act) lay down any specific duty on the state to conserve the forest or use its resources equitably. 2.1.3 Centralising Forest Conservation The Forest Conservation Act of 1980 (FCA) represents an attempt by the Central Government to slow deforestation caused by the conversion of forest lands to non-forest purpose. Under this Act, no State Government can authorise such conversion without securing Central Governments approval among other things. It is pertinent to mention that FCA as modified up to 1988 does not itself ban any non-forest activity or the de-reservation of forest land. All it requires is that the permission of the Central Government be secured for such actions. It would be useful to now examine how the legal framework impacts the right to such commons especially for the marginalised and forest dependent communities. 2.2 Forest Commons in Madhya Pradesh: Some Trends 2.2.1 Village Forests: Legal space for community in management of forest resource The Indian Forest Act54 which enables the creation of village forests by the state government becomes extremely important in terms of understanding the legal spaces that exist within the state forest law to the community in the management and control of forest resources. The state government may assign rights of government to or over any land which has been constituted a reserved forest55. The act provides the authority to the state to make rules regarding the management of any such village forest that is created for the benefit of the community56. The Village Forest shall be managed by the Village- Community. The duty to protect and improve village forest lies with the community living there. 2.2.2 Deemed Reserve Forest The most restricted category is "reserved forest." Generally speaking, in reserved forests, most uses by local people are prohibited unless specifically allowed by a forest officer in the course of "settlement.57 The state of Madhya Pradesh vide an amendment had also brought those lands under the category of forestland or wasteland which were either reserve or protected forest or under any
53 54
Section 28, Indian Forest Act, 1927. Section 28, Indian Forest Act, 1927. 55 Sec 28(1), Indian Forest Act, 1927. 56 Sec 28(2), Indian Forest Act, 1927.
57
Sections 3-26, Indian Forest Act, 1927. Page 19
other category immediately before their merger in the Indian territory58. The status of such deemed reserved forests need a fresh look especially as there are many areas where the process of settlement is still not complete. 2.2.3 Forest Villages Another key contentious legal issue is the issue of forest villages. As is well-known that forest villages are administrative units, which have no legal mandate. Often confused with village forests under the Indian Forest Act, people residing in these villages have been deprived of revenue benefits on various pretexts. The MP Forest Village Rules, 1977 govern the administration of such villages. These rules are applicable on land declared as protected forests59 and reserve forest 60 under of the IFA, 1927. While constituting a forest village, land is required for settlement of tribals, for nistar and community purposes, which has to be ensured. The rights given to the tribals regarding grazing cattle is same as the rights given to villagers in any revenue village. The distinguished feature of this legislation is the provisions related to distribution of patta to the residents of forest village. Each family of the concerned forest village is to be allotted 2.5 hectare of land with an additional 2.5 hectare in case there are more than one adult member in a joint family. Preference is given to the tribals belonging to the scheduled tribes category61. These pattas are allotted for a period of fifteen years subject to renewal. The patta holder would have to pay fee at such rate as rent fixed for same area of land in a revenue village62. On violation of any rule the concerned authority can cancel such pattas. To arrest these discretions as well as provide more benefits to such villages both the central and state governments have taken a policy stand of conversion of forest villages to revenue villages. However, such conversion need not take a simplistic conversion method. It should take into account inter alia, the date of original leases, the increase in the number of members in the family holding such leases, the location of the forest village including its remoteness and accessibility, willingness to convert and several such realistic criteria. The FRA now makes it a legal right to converting the forest village to revenue village through a due process. This will go a long way in establishing communities and eliciting their cooperation in the management of forest commons.
58 59
Section 20A, Inserted vide M.P. Amendment Act 9 of 1965 in Indian Forest Act, 1927. Section 29, Indian Forest Act, 1927. 60 Section 20(1), Indian Forest Act, 1927. 61 Rule 6 (b), Indian Forest Act, 1927. 62 Rule 20, Indian Forest Act, 1927. Protecting and Conserving Commons for Common Good_MP_ELDF Page 20
Legal concept of thalua63: There is a very peculiar situation, in regard to land-less labourers of the forest villages. The patta holders are few, while their offspring are many. On death of the holder, only the eldest son gets the right of succession of the land and the other sons remain landless as the other siblings cannot possess land intestate. They are termed as thaluas . Such anomalies need to be corrected by the recently enacted FRA. 2.4 Recognition of Rights in Various Categories of Forests: The complexity of the right regime in various categories of forest commons is perhaps the biggest challenge in its management. Whether the marginalised communities understand and ensure its implementation is the key to their own survival and prosperity. This section exposes a myriad of right regime in the state under different categories of forest and their impact on forest commons. 2.4.1 Rights and Claims of Forest Dwellers in the Settlement Process The Indian Forest Act as applicable to MP anticipates two types of claims in the forests proposed to be reserved or protected. First, a forest dweller might lay claim to ownership of land 64. Second, a claim may be to easement rights such as right of way, use watercourse, pasture cattle and collect forest produce65. 2.4.2 Recognizing Communal Rights in creating Reserve Forests In the Indian Forest Act the settlement process provides for recognition of communal rights on forest resources and also the procedure for settlement of various ownership and usufruct rights under the auspices of the Forest Settlement Officer appointed by the State Government in this regard. The settlement process admits the right of way and right to water course and use of water apart from the right of pasture and the right to forest produce66. 2.4.3 The Contours of The Claims!- Total discretion of the Forest Settlement Officer The Act provides for the Forest Settlement Officer (FSO) to pass order regarding the claims as he deems fit and best to his ability having due regard to the reserved forest67. If he allows the claims, then he has to record the extent to which these claims are admitted. Such a record would include the number of cattle the claimant is entitled to graze, how much timber and other products he is entitled to collect and when, whether such products may be sold or bartered by the claimant, etc.68 The FSO then shall take such steps as are necessary to ensure the continued
Defined under Working Plan for 1984-85 to 1993-94 Sec 11 Indian Forest Act, 1927. 65 Sec 15 Indian Forest Act, 1927. 66 Sec 15 Indian Forest Act, 1927. 67 Sec 15, Indian Forest Act, 1927. 68 Section 14, Indian Forest Act, 1927.
64 63
Page 21
exercise of that right, including removing such practice to transferring it to another forest, or record an order, allowing the exercise of the right in such manner as he deems fit. 2.4.4 Constitution of Reserve forests on wastelands leaves a lot of ambiguity for communities The power of the state government to constitute reserve forest over government waste land is in a manner fencing area that is used for common purposes by the communities. The lack of clarity on the definition of wasteland is cause for worry for exercising of rights or privileges over commons which are usually wastelands. An attempt to define wasteland was undertaken in 198669 when wasteland were defined to mean as that land which is degraded and is presently lying unutilised except as current fallows due to different constraints. Once wasteland or forest land is notified 70 to be a reserved forest71 then no new rights can accrue except by succession or contract and the exercise of existing rights are to be settled as per the process in IFA. This ambiguity on wastelands doesnt bode well for forest commons. 2.4.5 Bar of accrual of forest-rights: Both under IFA and WLPA Status quo is dangerous After the issue of the intention notification to constitute any land a reserved forest, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued 72. This has huge impacts on those common rights where the settlement process has been pending for years. There have been several instances of Proposed RF, unsettled sanctuaries and national parks which has maintained a status quo in such areas thereby bringing huge discomfort to communities where they are not able to dispose their valid lands even for exigencies. 2.4.6 Commutation of Rights: Money in lieu of rights? Clearly, the right to access forest land is subservient to the larger objective of conservation. The FSO while adjudicating upon the claims have to keep in mind the long term sustainability of the forests and that the resources are not unduly burdened. 73 Hence, if the Officer determines that it is impossible having due regard to the maintenance of the reserved forest to make any settlement that would allow the practice to continue, he may commute the rights by the payment of money or grant of land or in such other manner as he thinks fit.74
69
Report of Technical Group constituted by the Planning Commission under the chairmanship of Prof. MG.K Menon, Member, Planning Commission and Member, National Wastelands Development Board dated 29.05.1986 70 Section 20 IFA 71 Section 23 IFA 72 Section 5 of Indian Forest Act 73 See, for example, Section 16 of Indian Forest Act and Section 15 of the Karnataka Forest Act and Rule 13, Rajasthan Forest Settlement Rules, 1958 74 Section 16, IFA Protecting and Conserving Commons for Common Good_MP_ELDF Page 22
2.4.7 Claim to Carry out Shifting Cultivation: Only a privilege! Another type of claim (which is collective in nature) that can be made on the proposed reserved forest is to carry out the practice of shifting cultivation. The practice of shifting cultivation shall in all cases be deemed a privilege subject to control, restriction and abolition by the state government. Whether the practice be allowed or not, is decided by the State Government. If the practice is permitted wholly or in part, the FSO may arrange for its exercise either by altering the limits of the land under settlement to exclude the area of shifting cultivation or separately demarcating certain portion to practice shifting cultivation there. 75 2.5 Regulating Use of Forest Commons: In common parlance reserved forests are such categories where everything is prohibited except what is specially permitted. Whereas in protected forests, the government retains the power to issue rules regarding the extent of use of such forests commons. In protected forests, everything is permitted except what is specially prohibited. The State Government has framed several Rules to regulate the exercise of various rights or concessions allowed in protected and reserved forest particularly right of way, watercourse or use of water, right to pasture and to collect forest produce among others. 2.5.1 Concept and emergence of Nistar and Nistar Patraks in Madhya Pradesh The concept of nistar is crucial to forestry in MP the concept has been misunderstood, misrepresented and abused in its history of existence. The term itself has seen itself in revenue records, in legislations, in executive orders, in policy resolutions in different forms. The nature of it has changed from right to privilege to concession to favour. In other words nistar is the strongest link between people and forests as well as people and forest department. Nistar was defined as customary rights of the villagers entitled to graze their cattle free in the wasteland of the village and to take other forest produce such as fuel, wood, timber, thorns, grass etc., for their domestic use76. Nistar, before coming into effect of the Madhya Pradesh abolition of proprietary act, 1950, was regulated by the malguzars and zamindars in accordance with the customs and rules framed by the state government under the revenue laws. Many settlement reports reiterate this position of the status of nistar77. According to the Madhya Pradesh land reforms manual, which contained a gist of orders and instructions etc issued from time to time, the Government of Madhya Pradesh has issued a number of instructions that affect nistar and its relationship with people who are dependent on it. For example, regarding the question of nistar by villagers in the waste land of other village, it was made clear in an order by the department that the nistar is generally regulated by the custom with respect to rights of persons of neighbouring villages and new rights cannot be concede as a matter of course. If there is a well recognized custom on the basis of which the people residing in one village claim nistar in a different village their request can be conceded. The MP government in a significant order78
Section 10, IFA. As per the report of the Land Reforms Committee appointed by the Government of Madhya Pradesh in the year 1955 77 See for example Damoh Settlement Report of 1914, Settlement Report of the Balaghat District, 1917
76 75
78
Dated 6-9-54
Page 23
decided that the forest under the management of forest department shall be subject to the nistar of the villages. The nistar shall be regulated in accordance with the scheme prepared by the nistar officers. The existing arrangement shall be allowed to continue until nistar officers resettle the problems. The current framework of nistar, in the context of forest commons is provided in the MP Land Revenue Code, 1959. The Code, even though deals with the land revenue, also imposes a duty on the revenue officer to prepare a nistar patrak for the unoccupied land in a village falling under the revenue department. Under the Code, nistar patrak should be prepared for every village giving details of the unoccupied land present in a village. Under the nistar patrak, provisions should be made for among other things Free grazing of the cattle used for agriculture and removal of forest produce for bonafide domestic consumption among other things. Further, under the Code, the Collector is under a duty to set apart unoccupied land for the exercise of nistar rights. The provisions of the said Act however, are only applicable to the revenue villages. Protected Forest Rules: Further restrictions on Nistar The coming of MP Protected Forest Rules in 196079 further restricted the rights under nistar. This legislation formed the watershed in converting the nistar rights into privileges. In protected forest areas the term nistar includes timber of unreserved trees, or reserved trees where, expressly sanctioned in that behalf, for agricultural implements, building new houses or repairing houses and cattle sheds of the agriculturists, and surface boulders, muram, sand, chhui and clay. Under the MP Protected Forest Rules, 1960 the villagers are categorized into two categories. One, taking nistar and the other taking paidawar requirement on payment of specified amount. For enjoying nistar facility a commutation pass is to be obtained on payment of certain commutation fee. This provision in effect dilutes the provision of villagers taking nistar requirements free of charge. Under the new nistar policy of MP government80 the facility of nistar is more restrictive and now shall be available only to such villages lying within the periphery of 5 km from the forest81. 2.6 Creation of Protected Areas and Implications on the Right to Access and Use: 2.6.1 Sanctuary and National Park: Restricted but rights possible in Sanctuary but not in national park! The WLPA renders unfettered power on the State government to declare any area as a sanctuary or National Park 82 (other than an area in a reserved forest or territorial waters), for the protection of wildlife. Before a sanctuary or National Park is created, government has to take into account the customary, traditional unrecorded rights of the people dependent on the said land and settle those rights. The WLPA provides an elaborate procedure for settlement of rights.83 The Collector
79 80
Framed under section 32 (d) and 76 of the Indian Forest Act, 1927. Dated 26.12.1994 81 for details refer to Box no 2. 82 Section 18 read with Section 26A and Section 35, Wild Life (Protection), Act 1972.
83
See Section 19-26A Page 24
is required to not only take into account those rights which are ascertainable from government records but also make suo motu inquiries into the rights of affected communities84. After the settlement process is complete, a final notification is issued declaring the proposed area as a Sanctuary or National Park as the case may be. 85 Soon after the state government declares its intention to create a sanctuary a number of restrictions are imposed particularly on entry, grazing of livestocks and residing in the sanctuary among other things. Legally speaking, the Chief Wildlife Warden assumes the management and control of a sanctuary after it is proposed. He may takes steps for the preservation of the wildlife; regulates grazing or movement of livestock and takes measures for immunization against communicable diseases of the livestock kept in or within five kilometers of a sanctuary as may be required86. Thus for example, no person (except those specified in WLPA) can enter or reside in a sanctuary87 or remove forest produce88 without the permission of the Chief Wildlife Warden from a sanctuary and national park. However, in case a forest produce is allowed to be removed from a National Park it is only for personal bonafide needs of the people living in and around national park and not for any commercial purpose89. Grazing of livestock is also prohibited in a national Park.90 However, if the creation of a sanctuary prevents the use of a public way or a grazing land, the Collector may, if convenient, provides for an alternate way or a grazing land. 91 Also pending the settlement process in a proposed sanctuary, the State Government may make an alternative arrangement for meeting fuel wood, fodder and other forest produce of the people. 92 2.6.2 Creation of a Conservation reserve and a community reserve: Creating wildlife commons A conservation reserve93 is created on government land for protecting landscapes, seascapes, flora and fauna and their habitat.94 Restriction on certain activities are imposed which are similar to those in a Sanctuary except on the entry and movement of livestock for grazing. Further, the Act mandates a prior consultation with the local communities before a conservation reserve is created. Also there are no provisions for survey and settlement of the rights that may exist in the area. The Act also provides for the constitution of a Conservation Reserve Management Committee (hereinafter CRMC). The committee has, among others, representatives from the
Section 22, Wild Life (Protection), Act 1972 See section 26A and Section 35, Wild Life (Protection), Act 1972 86 See Section 29 and 33 of the WLPA 87 Section 27, Wild Life (Protection), Act 1972 88 Section 29 and section 35, Wild Life (Protection), Act 1972 89 Section 35(6), Wild Life (Protection), Act 1972. 90 Section 35(7), Wild Life (Protection), Act 1972. 91 Section 25(f), Wild Life (Protection), Act 1972. 92 Section 18 A(2), Wild Life (Protection), Act 1972. 93 Section 36A Wildlife (Protection) Act, 1972 94 A conservation reserve comprises government land adjacent to a national park or a wildlife sanctuary; or a land that link one protected area with another.
85
84
Page 25
village Panchayat to advise the Chief Wildlife Warden in matters concerning management of a conservation reserve95. A Community Reserve is created on a private land or a community land (not comprised within a sanctuary, national park or a conservation reserve), if a community or an individual volunteers to conserve wildlife and its habitat in such an area.96 To carry out this objective a Community Reserve Management committee is constituted comprising of representative of village Panchayat and state forest and wildlife department, to conserve, maintain and manage the community reserve. The committee prepares and implements a management plan for the community reserve for the protection of wildlife and habitat. What is not clear is the fact that what kind of restrictions will be imposed once such land is volunteered. Its understandable that such lack of clarity has resulted in not a single legally constituted community reserve so far. This needs urgent attention in case the states want to elicit community or individual participation in creating wildlife commons. 2.7 Panchayat and Forest Commons The role of Panchayats in forest commons is quite significant to be ignored and therefore it would be useful to examine briefly the relationship between forest commons and Panchayats in the study states. In Madhya Pradesh there are detailed provisions relating to the management of forests by Panchayats. The health of such forests would be a key to sustaining the right to forest commons and reducing pressure on the more prohibited categories which may be more useful for providing environmental services. With this brief overview let us examine some of the states and the role of Panchayats in a little more detail. 2.7.1 The Role of Panchayat and forest commons in Madhya Pradesh Soon after the 73rd amendment, the MP Panchayat Raj Adhiniyam, 1993 was enacted. While the gram Panchayat 97 was made responsible for the "plantation" and "preservation" of "Panchayat forests", the same was subject to the availability of funds with the gram Panchayat, which definitely hints at the state's perspective towards conservation of forests. It is noteworthy to mention that in the principal act no provision was made to involve the Gram Sabha in the management of an important natural resource like forests. Various amendments have been made in the principal act from time to time. By 1997 amendment the Zilla Parishad was given an advisory role to the state government in respect to protection of environment and social forestry. In 1999 (MP Act 5 of 1999), the Gram Sabha was entrusted with the management of natural resources including water, land and forests. However the same was to stand the test of compatibility with the provisions of constitution and other laws. Thus in case of a conflict, which is clearly manifest here, the specific laws dealing with the natural resource shall take precedence. Subsequently in 2001 the functions of gram Panchayat in respect of plantation and preservation of Panchayat forests were omitted, and the same was entrusted to the Gram Sabha with a difference, that instead of "Panchayat forests" it uses the term "village forests". It is not clear
95 96
Section 36 B, Wildlife (Protection), Act, 1972. Section 36(C), Wildlife (Protection), Act, 1972. 97 This Act renamed the MP Panchayati Raj Act as "Madhya Pradesh (Panchayat Raj Avam Gram Swaraj) Adhiniyam, 1993. Protecting and Conserving Commons for Common Good_MP_ELDF Page 26
whether this is s separate category or it needs to be understood in the context of the IFA. This leaves ambiguity. Another interesting feature of the system of panchayat law in MP is that it defines villages to include both revenue as well as the forests villages. This assumes significance because perhaps no other state recognizes or equates the forest villages to revenue villages. One of the benefits that usually don't accrue to forest villages is the establishment of Panchayat Raj Institutions, but in MP the panchayats can be established in forest villages by virtue of this Act. 2.8 State Monopoly on Forest Produce: Impact on Commons: State monopoly on forest produce and its impact on marginalised is perhaps the most contested domain in forest commons where the debates range from the Gram Sabha to the Prime Minister office, between Home Ministry and Ministry of Environment and Forests and Ministry of Tribals and Ministry of Panchayati Raj. The issue of control, fair price, rule of law, access, livelihood security especially for the marginalised are all being contested not only within the administrative framework but also contested in the legal domain. Madhya Pradesh which boasts of strong institutional arrangement on MFP actually falls flat on the legal front. Some of these arrangements and complexities in the state are captured below. Again it is important to understand the legal context clearly in order to secure not only the valid right to forest commons but also secure livelihoods for the poor and the marginalised. 2.8.1 Nationalizing Forest Produce: An example of Madhya Pradesh In the state, one of the major forest produce in the region is tendu leaves 98. The MP Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964 aims at regulating the trade of tendu leaves in public interest by creation of state monopoly in trade. However, transport of tendu leaves imported from outside the state are not controlled by this act. It is pertinent to specify here that tendu leaves fall under the category of nationalised forest produce. Tendu leaves can only be purchased or transported by a government official or any appointed agent. Another important legislation which governs trade in forest produce is the MP Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969. The act aims at regulating the trade of certain forest produce in public interest by creation of state monopoly in such trade. Under this act any person may transport the produce in prescribed quantity for bonafide domestic use or for consumption within a unit. Any person having the right of nistar in any forest in respect to any specified forest produce can transport such produce for his domestic consumption but according to the prescribed terms and conditions. For purchase and trade in specified forest produce agents are appointed who are either the officers of the state government or agents appointed by the state government. A transit pass is required for any person purchasing any specified forest produce for manufacturing goods within the state. The Transit (Forest Produce) Rules, 2000 99 also aims at regulating the transit of timber along with other forest produce. These rules have an overriding effect over the 1961 rules. Under the 1961 rules, there is a mention of several passes such as rated passes, forest produce passes, and
98 99
See Human Development Report- Sanket Rules framed under section 41 and 42 along with section 76 of the Indian Forest Act, 1927. Page 27
free and paid nistar passes. According to the rules, no separate transit pass is required in case a person possesses any of the passes mentioned above. However the rules nowhere describe the nature of such passes. Under the 2000 rules, forest produce covered by money receipts/rated pass/forest produce pass/carting challan are exempted. Other provisions of the amended rules are similar to that of 1961 rules. The complex nature of the above rules make is quite difficult for local communities to understand what is allowed and what is disallowed. 2.8.2 Minor Forest Produce: Nationalization laws need overhaul in light of FRA and PESA PESA does not define MFP, however this lacuna was filled by the FRA. The MP government has defined Minor Forest Produce (MFP) in response to conferring of ownership rights to Panchayats and Gram Sabhas by central government through a constitutional amendment, Provisions for Panchayat (Extension to Scheduled Areas) Act, 1996. The MP government circular dated 15/05/1998 defines "MFP" as "non timber forest produce which can be harvested on a nondestructive basis and will not include minerals and wild animals or their derivatives. As per the MP Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969, the state government under the act is empowered to make rules as it deems fit for disposal of specified forest produces. Prominent among specified produces are - Kullu Gum, Dhawra Gum, Khair Gum, Babool gum, Sal and Salai resin, Rosha Grass, Lac in all forms, Mahua Flowers and seed, chironji, Guthli, Sal seed, Harra and Kacharia, Mahul Leaves, Phool Bahari, and Bamboo. Mahua flower and seed were removed from specified produce in 1972. The M. P Laghu Van Upaj (Gram Sabha Ko Swamitwa Ka Sandan) Vidheyak, 1999 was enacted to endow the ownership rights of Minor Forest Produce to the Gram Sabhas and the amendment to the M.P Panchayat Nirvachan Niyam, 1995 provides the Gram Sabha to manage natural resources including forests in accordance with its tradition in scheduled areas. Whereas the acts nationalising the MFP aims towards commoditization of MFP and bringing in state control over the trade, which is a source for augmenting the resources of the marginalized communities. In light of the Forest Rights Act, the entire regime needs an overhaul. 2.9 Reducing dependence on Commons though Lok Vaniki: In the state of M.P., there are large number of small patches of private tree clad areas and forests. They have not been yielding any income to the owners. Such private land holdings of the thousands of farmers are small, generally ranging from 0.5 ha to 15 ha. The owners of such private forests have started removing the standing tree crop and converting the land into agricultural fields or they become indifferent to their forests. Hence, with the objective of arresting degradation in private forests and improving their productivity by linking scientific management of these areas with the improved livelihood and economic returns of the people, a scheme called Lok Vaniki was launched by the Government of M.P. in April 1999 on a pilot basis. The scheme envisages improving the productivity of private forests, tree clad areas and wastelands, greening large barren stretches through a duly approved management plan. The Management Plan is to be prepared for each private holding. The felling of trees will take place as per the provisions of the plan.
Further, to strengthen the initiative of Lok Vaniki and to give legal sanctity to the management plan and all acts done under it, the state passed the M.P. Lok Vaniki Act 2001 (M.P. Act No. 10 of 2001). The Act extends lok Vaniki not only to tree clad private lands100 but also to other revenue lands. 101 It is voluntary in its' application102. It is an enabling law intending to encourage the owners of private forests and other tree clad areas to suo motto manage their natural resource on scientific lines for optimizing both economic as well as environmental returns. It is voluntary in nature and is applicable only to such areas, which are brought under scientific management by the owners themselves by preparing a management plan. It discourages clearing and conversion of area for non-forestry purposes by providing a mechanism for long-term management of forestry crop freely like agricultural crops. More importantly, the Act provides for active involvement of Village Panchayats and Gram Sabhas in the process of preparation, implementation and monitoring of management plans prepared for private areas which is a welcome shift from government control to peoples control. Yet another unique feature of the Act is a new system of self assessment by the owners themselves. The "Self Assessment Return" is a comparative account of estimated and actual yields from the holding of the owner. This return, like income tax self assessment return, shall make the basis of monitoring of implementation of the approved management plan. The Act, thus shifts the basic responsibility of assessment to the owners thereby establishing a direct link between the scientific management of private forests and economic gains of the owners.
100
Section 2(i), Madhya Pradesh Lok Vaniki Adhiniyam, 2001.Tree-Clad area' means the area where there is tree growth and for which a management plan has been prepared under section-3; 101 Preamble, Madhya Pradesh Lok Vaniki Adhiniyam, 2001 102 Section 1(3), Madhya Pradesh Lok Vaniki Adhiniyam, 2001. Protecting and Conserving Commons for Common Good_MP_ELDF Page 29
Chapter 3 WATER AS COMMONS 3.1 Locating Water in the Indian Legal Map Initially, water, like all other natural resources, was treated as a common property resource with free access for all and no notion of property rights over it. However, over time the notion of riparian rights (arising out of the ownership of the land) over water resources has been recognized. The concept of riparian rights was statutorily backed by the Indian Easements Act in 1882, which not only laid down the exclusive right of the owner of an immovable property to enjoy his property103 but also legitimized the customary rights of people104. However, the laws subsequent to the Easements Act slowly shifted emphasis on peoples natural resources from being natural rights to proprietary rights105. This gave way to a massive participative water management regime and an elaborate ground water regime. With this, India has come a long way in its legislative history on water. 3.2 Constitutional Position: Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage falls in List II Entry 17 of the Constitution which simply means that its the state government which is competent to legislate on the subject. 3.3 Water law framework in Madhya Pradesh- legal spaces for community rights over water commons do not exist In Madhya Pradesh, major part of water law is governed under irrigation laws such as Madhya Pradesh Irrigation Act, 1932, Northern India Canal and Drainage Act, 1873 and the Indian Easement Act, 1882 which date back to pre-independence period. The pre-independence legislations on water are based on the common law principles of linking land rights with water rights. The water regime introduced at that time in India had two main strands. First, the government control over surface water. Second, water attached as the private property with the landowner to which the landowner had right to unlimited access. In addition to this, the common law principle of riparian rights was also introduced that allows the landowner the right to take a reasonable portion of the flow of a watercourse. These principles were enshrined in the Indian Easement Act, 1882 and have survived until present day. This led to the progressive strengthening of state control over surface water and the concomitant weakening of peoples
103
See illustration (j) to Section 7 which provides: The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purpose and watering its cattle and sheep and the right of every such owner to use and consume the water for irrigating such land, and for the purpose of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners. 104 See section 15 and 18 of the Indian Easements Act, 1882 105 A need for regulatory framework for the management of water resources was felt which led to the enactment of several legislation in the area of water resource management including the North India Canal and Drainage Act 1873 and the Bombay Irrigation Act. Protecting and Conserving Commons for Common Good_MP_ELDF Page 30
customary rights106. There are studies to show that regulations recognizing local practices and rules in villages were also enacted in Madhya Pradesh which reduced the customary and community rights over water resources. However, these regulations are hardly known to exist today107. Post Independence, several laws were added in the existing legal frame such as Madhya Pradesh Regulation of Waters Act, 1949, M.P Peyajal Parirakshan Adhiniyam, 1986 to govern various aspects of water management such as irrigation and drainage, ground water, integrated watershed development, command area development among others. These legislations also pointed towards state control over access, distribution, use and conservation of water resources. 3.3.1 State as the ultimate custodian of surface water As stated above, a major portion of the present water law framework in Madhya Pradesh generally follows the pre-independence water law scheme. The Madhya Irrigation Act 1931 which is the key legislation on water in the state provides that all rights in water resources of any river stream or natural drainage channel, natural lake or other natural collection of water shall vest in the government 108. Another state legislation, the Madhya Pradesh Regulation of Water Act, 1949 reasserts that all rights in the water of any natural source of supply shall vest in the Government109. There are no exceptions in these legislations in terms of community rights over water resources in the state. As the resources are property of the government only the government has the right to dispose of the resource as it deems fit subject to all subsisting rights over the property. These in certain ways have led to commodification of water resources. A claim to a subsisting right is to be claimed by the person and the Collector or the survey officer is empowered to adjudicate claims against the government. The use of water by landholders is subject to payment of water rates and these water rates are fixed by Collector or survey officer if a rate is not fixed under the Act. It is evident that exercise of riparian rights and use of common water resources by landholders is dependent upon payment of water rate levied as per M.P Irrigation Act, 1931. Clearly, the control over water is entirely with the state with very little space for communities. 3.3.2 Water commons: the general legal framework pertains exclusively to farmers rights over water resources Farmers' Organisations are established under the Act framed for promoting farmers participation in irrigation arrangements.110 The objects of the farmers' organization shall be to promote and secure distribution of water among its users; adequate maintenance of the irrigation system, efficient and economical utilization of water to optimize agricultural production, to protect the
106
Phillipe Cullet and Joyeeta Gupta, W. Dellapenna & Joyeeta Gupta eds, The Evolution of the Law and Politics of Water (Dordrecht: Springer Academic Publishers, 2009 107 Supra 2 108 Section 26, Madhya Pradesh Irrigation Act, 1931 109 Section 3, Madhya Pradesh Regulation of Waters Act, 1949 110 Chapter II Madhya Pradesh Sinchai Prabhadan Me Krishokan Ki Bhagidari Adhiniyum, 1999 Protecting and Conserving Commons for Common Good_MP_ELDF Page 31
environment, and to ensure ecological balance by involving the farmers, inculcating a sense of ownership of the irrigation system in accordance with the water budget and the operational plan 3.3.3. State Control over all water resources for irrigation- Balancing agriculture needs with Common water rights of non agricultural communities As mentioned earlier, the Irrigation Act provides that all rights in the water of any river, natural streams or natural drainage channel, natural lake or other natural collections of water shall vest with the state111. Agricultural in the State has been long been deprived of dependable irrigation facilities and the farmers have been using traditional methods of supplying water to the fields such as from storage tanks (known as up-level tanks), pumping from tanks, smallholderoperated pedal or diesel pumps, stop dam irrigation, sprinkler irrigation, sield bunding or medh bandhan; and rainwater harvesting using open wells (dubri). Though the Irrigation Act provides for construction of water canals, water courses and field channels to provide for the irrigation to the agricultural fields, most of the irrigation is dependent on the rains which are highly unpredictable. However, the Act states that water can be made available for irrigation under an agreement between the State Government and the permanent holders of land either for a short term not exceeding one year or for a long term exceeding one year, at such rates as may be fixed by state government from time to time. However, such agreement shall be in respect to specified crops.112. This a limited provision for ensuring water supply and clearly, there is a need to devise a framework for prioritising water supply for irrigation purposes to ensure food and livelihood security, while providing for water needs to non agricultural communities as well. 3.4 Recognition of Rights in Water Commons 3.4.1 Preparation of irrigation record of rights The Irrigation Act provides for payment of compensation if due to construction of a canal, rent or revenue of any land has been reduced or the supply of water to or from a tank or other constructed work has been diminished113.Building of water channel requires acquisition of land, thus the Act also provides that any acquisition of land shall be done as per Sec 17 of Land Acquisition Act114. 3.4.2 The Madhya Pradesh Land Revenue Code, 1959 and Panchayat laws - An exception to the general water law framework in the state Under the MP Land Revenue Code, 1959 (The Code), there is a categorical recognition of rights of people to access resources including water resources in tanks, ponds, nallas, stream and community wells provided they are included in the nistar patrak of the village. Further, the Code also provides support to the customary and easementary rights of communities recorded in the
111 112
Sec.26 M.P Irrigation Act, 1931 Sec 45 M.P Irrigation Act, 1931 113 Sec 30 M.P Irrigation Act, 1931 114 Sec 81 M.P Irrigation Act, 1931 Protecting and Conserving Commons for Common Good_MP_ELDF Page 32
wajib-ul-arz which is the record of customs in each village in regard to irrigation or right of way or other easement right including the right to fishing. These rights are available on private lands (abadi or bhumiswami) subject to entry in the wajib-ul-arz or where the court intervenes to rule on an existing entry, or decrees the existence of a custom that has yet not been recorded115. Nistar Rights over tanks to vest in the community: However, tanks to the State? The M.P. Code provides that all tanks situated in the unoccupied land including those over which the village community has been exercising nistar rights before the coming into force of the Code, shall vest absolutely in the state government 116. Before the vesting of such tank a notice has to be served to the parties interested to whom tank may have been leased are required to file claims and are given an opportunity to be heard117. The Code stipulates that claims other than nistar rights have to be filed meaning thereby no claim for interest in tank has to be filed for claiming nistar rights. Further, it is very clearly mentioned that vesting of tanks shall not affect the rights of irrigation and nistar in such tank (which includes trees standing on the embankment of such tank) to which any person is entitled immediately before the date of vesting 118.
3.5 Panchayats have a key role in the protection of communitys water resources: Any debate on water commons is incomplete without the analysis of the role of Panchayats which are in most cases closest and most accessible institution to the marginalised living in rural areas. It would thus be useful to see the manner in which the PRI framework has addressed water commons issues including management and the right regime associated with it. 3.5.1 Panchayat and Water commons In the M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 there are number of provisions relating to common water resources. For example, the Panchayat Act provides that the Panchayat at appropriate level shall have the power and authority as may be necessary to enable them to function as institutions of self Government in relation to matters relating to minor irrigation, water management and watershed development. The Act further entrusts the Panchayat with the power and authority in relation to drinking water119. In particular, Gram Panchayat have been vested with the power as to public health facilities and safety subject to rules made by the Government in this regard120. These include power to maintain the sanitation, conservancy, drainage, water works, and sources of water supply and to regulate water usage. This is a positive step, in accessing, regulating use and conservation of water resources for the benefit of the marginalised.
115 116
See section 242, the Madhya Pradesh Land Revenue Code, 1959 Section 251, the Madhya Pradesh Land Revenue Code, 1959 117 Section 251 (2), Madhya Pradesh Land Revenue Code, 1959 118 Section 251 (7), Madhya Pradesh Land Revenue Code, 1959 119 Sec 53,M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 120 Sec 54, M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 Protecting and Conserving Commons for Common Good_MP_ELDF Page 33
3.5.2 Irrigation Panchayat: Management under the act The Irrigation Act provides for constitution of Irrigation Panchayat the responsibility for proper maintenance of all water courses constructed for that village 121. Whereas all the water courses constructed by the state for irrigating compulsorily assessed areas and any chak shall be the property of the state but shall be maintained by the permanent land holders of the compulsory assessed area or the chaks respectively122. As seen from above, the power to manage water sources, irrigation system in a village have parallelly been allocated to three institutions- gram panchayat, Irrigation Panchayat and private landowners using the irrigation system, without any distinction or clear demarcation of their roles and responsibilities. Such ambiguous allocation of powers is sure to cause confusion and inefficient regulation of access, use of water resources and maintenance of irrigation facilitates in the village and thereby affecting the rights of the marginalized. Therefore, it is important to build synergies in different institutions and bodies involved. 3.6 Regulation of Water Commons The legal framework in the state also provides measures to regulate water sources. Without getting into the empirical evidences of how it has operated on the ground, it would be useful to illustrate some of these examples from the state. Clearly a sound regulatory frame would help sustain water commons. 3.6.1 Regulation and Prohibition of use of water sources: Panchayats empowered in M.P. In Madhya Pradesh, the Gram Panchayat is empowered under the Act to function as institutions of self governance in relation to Minor irrigation, water management and watershed development and Drinking water123.The Panchayat performs the function of maintaining the sanitation, of drainage, water works, sources of water supply and to regulate use of water.124 However, this is not an exclusive power, the Panchayat has to function under the directions of the State Government.125. 3.6.2 Surface water resources regulation Surface water exploitation is regulated by the M.P Irrigation Act, 1931. The Act confers the State a sovereign right upon surface water and its use for irrigation schemes. The applicability of the Act is dependent upon water channels, field channels, drainage works, water courses, pipes, reservoirs constructed and maintained by state government, works, embankments, structures, supply and escape channels of all channels, water courses, pipes, reservoirs, notified 126 part of
121 122
Sec 69 M.P Irrigation Act ,1931 Sec 68- A&B M.P Irrigation Act ,1931 123 Sec 53 M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 124 Sec 54 M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 125 Sec 53(1) (a) M.P Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 126 Sec 26 M.P Irrigation Act ,1931 Protecting and Conserving Commons for Common Good_MP_ELDF Page 34
river, stream, lake, natural collection of water, natural drainage channel. There is provision for construction of canals, field channels, drainage works for supply of surface water and for levy of water rates for use of surface water. The water tax is recovered on water supplied for irrigation or for any other purpose and shall be prescribed by the government as per the act. The act covers not only the water resources but also the land resources that are concomitant with the water resources. 3.7 Rights over Common Water Resources in the Scheduled Areas As stated earlier, there is a constitutional mandate to view scheduled areas and natural resource management separately. The coming of PESA and Forest Rights Act further strengthens the legal frame within scheduled areas and the rights of the tribal regarding water. Like other resources, the management of water resources is under a special legal frame too. It would be useful to examine how the state legal framework on water, especially minor water bodies has responded to the central frame. 3.7.1 Scheduled areas and minor water bodies in M.P.: Gram Sabha to play advisory role In the scheduled areas of Madhya Pradesh, the position on rights over water commons is strengthened by the state adoption of Provisions of Panchayats (Extension to Scheduled Areas) Act, (PESA) 1996. The Government of M.P. has enacted the Panchayati Raj Dwitiya (Sansodhan) Adhiniyam 1997 to conform to the Central PESA. The Panchayati Raj Dwitiya (Sansodhan) Adhiniyam 1997 along with Panchayati Raj (Sanshodhan) Adhiniyam 1999 has amended the Panchayat Act of Madhya Pradesh which itself has been substantially amended in 2001 to be renamed as Panchayat Raj Evam Gram Swarajya Adhiniyam 1993 (herein after MP PESA) to conform to the spirit of PESA. One of the most significant chapters added vide Amendment Act 43 of 1997 is Chapter 14A regarding special provisions of Panchayat in the Scheduled Area. One of unique feature of MP PESA is that it provides for an elaborate network of Committees necessarily lying down that the Gram Sabha is to constitute standing committees that comprise of eight to nine members127. Among others the MP PESA provides for the constitution of the committee to plan, own and manage minor water bodies up to a specified water area situated within its territorial jurisdiction; Further, MP PESA provides that for the regulation and use of minor water bodies in the scheduled areas Gram Sabha has to play the advisory role for the Gram Panchayat. 3.8 Regulating Ground Water Access to and use of groundwater is a right of the landowner. In other words, it is one of the rights that landowners enjoy over their possessions. The inappropriateness of this legal principle has been rapidly challenged during the second half of the 20th century with new technological options permitting individual owners to appropriate not only water under their land but also the groundwater found under neighbors lands. Further, the rapid lowering of water table in most
127
Standing Committees include (1) Gram Vikas Samiti, (2) Sarvjanik Sampada Samiti (3) Krishi Samiti, (4) Swasthya Samiti, (5) Gram Raksha Samiti, (6) Adhosarovachna Samiti, (7) Shiksha Samiti, (8) Samajik Nyay Samiti. Protecting and Conserving Commons for Common Good_MP_ELDF Page 35
regions of the state has called in question legal principles giving unrestricted rights to landowners over groundwater. Similarly, the growth of concerns over the availability of drinking water in more regions has led to the introduction of social concerns in groundwater regulation. The State has yet to come out with any comprehensive legislation dealing with the intricacies of ground water. However, one legislation which addresses some of the issues regarding the ground water is the Madhya Pradesh Peyajal Parirakshan Adhiniyam, 1986 by regulating tubewells within the state. The Act provides for preservation of water in water sources and for regulation of tubewell construction in order to maintain water supplies to the public for domestic purposes. The Collector has been assigned power to declare any area as a water scarcity area for any period in order to maintain or increase the supply of water to the public or to ensure its equitable distribution. Digging of tubewells without permission for any purpose in water scarcity areas is prohibited under the Act. In addition, digging of tube wells in the zone of interference of any tubewell constructed or maintained by the State government or other local authority for the purpose of domestic water supply to the public is prohibited. 3.9 Protecting Watersheds: A decentralized structure is the first step The National Guidelines for Watershed Development 128 envisages a very central role for the Panchayati Raj Institutions (Local Self Government) in Watershed Development Projects. The Guidelines categorically assert that the Zilla Parishad or the District Council shall be fully responsible for implementation of the Watershed Development Programmes at the district level. The Panchayat Samiti at the block level shall have the right to monitor and review the implementation of the programme. Further, at the village level, the Gram Panchayat (Village Council) shall be fully involved in the implementation of the programme. Most significantly, where the Watershed is co-terminus with a Village Panchayat, the Gram Sabha of the Panchayat concerned will be designated as the Watershed Association which may be registered as a Society under the Societies Registration Act of India. In the year 2000 the Union Minister for Rural Development strongly asserted the need to replace Government oriented centralized supply driven rural water programs with People Oriented , decentralized and demand driven water programs. In December, 2002, Government of India through the Ministry of Rural Development launched a scheme for the rural areas of all the states known as Swajaldhara, where it provides for community participation in planning, implementation, operation and maintenance in the schemes of its choice. Full ownership of the drinking water assets vests in appropriate levels of Panchayat. A new nationwide Watershed Development Programme named Haryali129(greening) is also being implemented by Panchayati Raj Institutions (PRIs) and is now an accepted national strategy. The Common Guidelines for Watershed Development Projects-2008 are the recent guidelines being implemented. The watershed institutions have no statutory powers and are an outcome of an executive order unlike acts that have been enacted for backing the water user associations. One of the principles of the Common Guidelines for Watershed Development Projects-2008 is
128 129
The Guidelines for Watershed Development of Ministry of Rural Development, Government of India, 1994 Under Water Shed Management, villagers can take up many small works to conserve water for drinking, irrigation, fisheries & afforestation which, to him, would not only add to Haryali to the rural landscape but also create new employment opportunities. Protecting and Conserving Commons for Common Good_MP_ELDF Page 36
ensuring access to usufruct rights from the common property resources for the resource poor.130 One of the objectives of the Watershed Development Team under the guidelines is common property resource management and equitable sharing131. These new Guidelines for watershed development projects usher in a new framework for the next generation watershed programme. Some of the key features of these guidelines are delegating powers to states, financial assistance for institutions, livelihood orientation etc. 3.9.1. Jal Abhishek: Conserving Water commons The Madhya Pradesh government has launched the Jal Abhishek Campaign, where people have taken charge of the movement and government is only present as a facilitator. As People's stake and their inclusion in planning and management of the water conservation and harvesting activities was the key agenda, massive awareness generation campaigns were organized for disseminating the information through Jal Abhishek Sammelans & meetings from village to district level. The campaign addressed the local needs and aspirations of the community. To address this agenda a participatory model of collective action was created in the village in the form of Jal Abhishek committees. This helped in creating enabling conditions for local specific need based planning and tapping the traditional wisdom and energies of the people water conservation & harvesting. Almost 50000 Jal Abhishek committees have been formed in the state which is providing a common interest platform for peoples action. To compliment the unprecedented devolution of powers to people with sound technical base Sahyog Dal has been constituted at a cluster of 10 villages. Almost 10000 Sahyog dals are currently catering to the technical needs of the community132. The scheme provides for a shift from general perception about water conservation & harvesting which is only limited to tank and stop dam construction. But the philosophy of water conservation goes much beyond that wherein small, simple and low cost water conservation & harvesting structures can effectively address the purpose. Therefore simple Do-it-yourself water conservation & harvesting structures were promoted, which could be made by the villagers without being dependent on external financial resources. These structures also included on farm water conservation structures like farm pond, well recharge, Kundi, Kuiyan. In the construction of the structures considerable priority was given to innate wisdom of the people. 3.10 Participatory Approaches to Water Commons: A Long Way to Go Participatory approaches are the flavour of the legal frame across the natural resource management regime. Water is no exception. Consequent upon the formulation of the National Water Policy, 1987 the Ministry of Water Resources issued guidelines for farmers participation in water management, primarily for areas under the Centrally Sponsored Command Area Development Programme. The guidelines drew sustenance from policy provisions mandating involvement of farmers in management of irrigation systems.133 The guidelines covered various aspects like operation of farmers associations in different irrigation schemes, duties and
130 131
Common Guidelines For Watershed Development Projects-2008 issued by Ministry of rural development Para 5.4 of Common Guidelines For Watershed Development Projects-2008 issued by Ministry of rural development 132 http://www.jalabhishek.org/ 133 National Water Policy, 1987 Protecting and Conserving Commons for Common Good_MP_ELDF Page 37
responsibilities of the farmers, training and monitoring. The main objective of the guidelines was to create a sense of ownership of water resources and the irrigation system among the users, so as to promote economy in water use and preservation of irrigation system. It set up water users association (WUA). The revision of the earlier policy and formulation of the National Water Policy, 2002 also gave further impetus for development of WUA. The legal issue however, remains on the primary debate of specialist versus general institution and constitutional versus ordinary legislative mandate between panchayats and specific resource related legislation. With this background let us examine the participatory approaches to water management and see whether it strengthens the community regime to water management in the state of M.P. or not. 3.10.1 Water User Associations, Farmers Participation and Constitutional mandate of Panchayats: Need for Synergies In Madhya Pradesh, the Madhya Pradesh Sinchai Prabhandan Me Krishkon Ki Bhagidari Adhiniyam, 1999 was enacted where the Water Users Associations aim at exercising control over water resources for the purpose of agriculture. In particular, Water User Association (hereinafter WUA) formed in a command area, is responsible for preparing and implementing a warabandi scheme134. These developments point towards the shift from overall government control towards involvement of users in conservation and management of resources and also viewing of water as a common property resource. However an area of concern is that in the light of the fact that distribution and supply of water, control and management of minor water bodies has also been given to PRI and Gram Sabha, clearly, the mandate of Farmers Organisation as discussed above, regarding supply of water, management of minor water courses among others in any Panchayat area comes in conflict with the functions of Panchayat or Gram Sabha. Thus this, ambiguity in delineation of power as mentioned above can result into operational difficulties in the functioning of participatory water management systems and hence powers need to be clearly distributed and also enabling framework needs to be created to harmonise the functions of local bodies and Farmers Organisations.
134
Chapter III Madhya Pradesh Sinchai Prabhandan Me Krishkon Ki Bhagidari Adhiniyam, 1999 Page 38
Chapter 4: FISHERIES AS COMMONS 4.1 Constitutional Position At the outset, it is important to understand the Constitutional scheme over the subject of fisheries. Fishing and fisheries beyond territorial waters is listed in the union list 135 where the central government is competent to legislate and fisheries generally is listed in the state list 136 which means that the state governments have the exclusive power to make laws with respect to the items listed in the state list. A combination of these two items makes it clear that the jurisdiction over the maritime zones in respect of fishing is clear between the centre and the state. While the state has a jurisdiction over fisheries within 12 nautical miles, it is the central government which regulates fishing and fisheries beyond territorial waters i.e. beyond 12 nautical miles. It is also important to emphasise that while the use oriented framework on fisheries is clearly demarcated the protection of certain species of fish lies in the concurrent jurisdiction of both the centre and the state through the Wildlife Protection Act, 1972137. Since Madhya Pradesh is a landlocked state the control of the centre is not applicable and the state government have total control over inland fishing which will be dealt with in this chapter. 4.2. Fisherfolks Rights Law? : Securing Tenure on fisheries commons The most recent is the announcement of the Fisherfolks Rights Act on the lines of the Forest Rights Act which may recognise traditional rights to traditional fisherfolks and secure their tenure on the coastal and may be the inland fishery spaces. Infact, the nature of claims and its identification could be an important pre-condition before their settlement. One of the greatest lacunae for traditional fisher folks is the lack of titles on both land and the resource. So the nature of claims, which include any claims for welfare entitlements currently under the law and which may or may not be based on Government Records would go a long way in securing the interest of the Indian traditional fisherfolks and small scale fisher folks. 4.3 Fisheries in the state Madhya Pradesh, like many other inland states in India, has rich inland water resources available as source of fishe[ries and sites of fish culture. It had supported the traditional fisher livelihoods in the past, got alienated from them over years due to various reasons, and has potential to be sustainable source of livelihoods for them. According to the Madhya Pradesh Department of Fisheries, the state has 3.35 lakh hectares of tanks and ponds and 17088 kms of rivers and canals. There are 53 fish hatcheries. The total fish production is 61581.49 tonnes. In 1681 fisher cooperatives there are 58,528 members.
135 136
(See item 57 of list I) (See item 21 of list II) 137 (See entry 17B relating to protection of wild animals and birds. Importantly wild animal definition includes fishes as listed in Part II A of schedule I of the Wildlife Protection Act, 1972) Protecting and Conserving Commons for Common Good_MP_ELDF Page 39
4.3.1 Institution and Jurisdictional body of fisheries commons The State Fisheries Department was set up with the objective of developing the sources of fisheries like the river and other water reservoirs. The department works towards the development and advancement of fishing techniques in the state. The most important objective being the sustainable development and conservation of fishery in the state138. 4.4. The Policy Framework The state was the first inland state to come out with an extensive fishery policy. In order to safeguard the interest of fishing farmers, the state fishing policy provides for empowering the district panchayats to manage water bodies spread upto the area of 1000 hectares139. 4.5. Laws that directly regulate fishing activities The following four major legal instruments of the state, described below, directly govern fisheries activities: The M.P Fisheries Act, 1948, M.P Land revenue Code, 1959 and the M.P Panchayat Raj Aivam Gram Swaraj Adhiniyum, 1993. The M.P Fisheries Act, No. 8 of 1948 is primary act governing the fisheries in the state. 4.5.1. The Regulation of Fishing: Repeal of Indian Fisheries Act in the state The Indian Fisheries Act, 1897 was repealed and M.P Fisheries Act, 1948140 was enacted taking into consideration the need of the state. 4.5.2. Measure for sustenance of fisheries resource The act provides for prohibition or regulation of fixed engines, dimensions, size of fishing nets, use of any method for catching fishes, destruction of fishes and fish habitat among others to regulate the activity of fishery in the state.141 4.5.3. Regulation of Fishing The act prohibits fishing except under a license. The license shall be granted after payment of fees and certain conditions as stipulated needs to be adhered 142. The act prohibits in any specific areas the offering or exposing for sale or barter of any fish capture which has been made unlawful143. The act provides that if any person contravenes any provision of the act, he shall be punished with imprisonment which may extend to one year or with fine which may extend to five thousand rupees144. The act further provides for arrest of persons without warrant under the act.145
138 139
http://www.mpfisheries.nic.in/obj.htm The Fisheries Policy 2008 140 Sec 11 M.P Fisheries Act, 1948 141 Sec 3, M.P Fisheries Act, 1948 142 Sec 3, M.P Fisheries Act, 1948 143 Sec 4, M.P Fisheries Act, 1948 144 Sec 5, M.P Fisheries Act, 1948 145 Sec 6, M.P Fisheries Act, 1948 Protecting and Conserving Commons for Common Good_MP_ELDF Page 40
4.5.4 Absence of clear definition on key terms such as fishing and fishing vessel doesnt help in managing fisheries commons The act does not provide with any definition to many important terms relating to fishery in the state. Terms like fishing, fishing vessel have not been defined under the act, it has led for much to be desired. 4.6. Nistar Rights over fisheries and access and use rights over village water bodies having fish resources in Madhya Pradesh As per the Land Revenue Code, the state government has the power to regulate fishing in all government tanks and make rules for the regulation of fishing146. Under the Rules, the fishing rights vested in the local bodies have to be documented on the books managed by the local bodies and these rights can be leased out in accordance with the rules. This implies that the Gram Panchayat, Municipal Committees, Janpada Sabhas, Mandal Panchayats in Madhya Pradesh have the right over fishery resources and it may lease out the same in accordance with the prescribed Rules147. The Rules prescribe that no fishing is permitted in government tanks exclusively serving the drinking purpose, used for watering cattle, at the time of present or anticipated scarcity of water, in the government tanks used for pisciculture by the fishery development department and in the Ghats exclusively used or reserved for drinking water or bathing or sanctuary ghats. However, fishing by hook and rod may be permitted off the ghats to individuals subject to a payment of 0.50 Np. Per rod per year from the Gram Sabha or Gram Panchayat. Further, the Rules provide that where any Government tank is proposed to be leased out for fishery purposes, a Gram Panchayat or Gram Sabha shall be consulted by the Tehsildar before leasing any tank148. Furthermore, the rules prescribe that the opinion of the Gram Sabha or Panchayat shall be given due weight in deciding whether the tank should be leased out or not, even choice of the individual or an entity to whom tank should be leased out may be made by the Gram Sabha149. In deciding such cases the Tehsildar is required to give due weight to the local fishermen who have been holding such leases in the past150. While leasing out the tanks it is to be ensured that the existing Nistar rights of the villagers shall not be interfered with151. Regulating Fishery Commons in Madhya Pradesh in a nutshell: -All the tanks vest in the state government including the village tanks. - Nistar rights in the tanks not to be affected - Fishing rights in the tanks can be given on lease by the Gram Sabha or Panchayat subject to the preservation of communitys rights over drinking water resources, cattle use, ghats for drinking and bathing or those used for religious purposes. - Fishing by hook and rod permitted in ghats, tanks for drinking water, and those used for cattle
146 147
Section 249, the Madhya Pradesh Land Revenue Code, 1959 Rule 1, Rules made under section 249 regarding regulation of fishing, hunting etc. amending Notification No. 8780-2531-VII-N-Rules, dated 2-12-1960 148 Rule 6, ibid 149 ibid 150 Rule 6(i), (ii) 151 Rule 7 Protecting and Conserving Commons for Common Good_MP_ELDF Page 41
subject to payment of certain fee - Before the fishing tank is given on lease, Gram Sabha shall be consulted and its view will hold weight. - While making the lease the claim of local fishing communities to be given weight - The lease shall be granted for a period not exceeding five years subject to the condition that Nistar rights in the leased tank shall not be affected Concluding Remarks: The above analysis of the policy and legal approaches governing common access, use and conservation of land, forest, water and fisheries, point towards state control over all these resources. The current legal regime is inadequate to address all the challenges faced today especially those related to conservation and livelihood security of teeming millions dependent on them for survival. Commons have been at the disposal of the states economic needs without any safeguards to the poor communities or scope for voicing their dissention. Clearly, there is a need to usher in more democratic ways where communities have equal, inalienable rights over commons including the right to conserve and protect common resources for long term use. The function of the state should be to facilitate peoples participation in sustainable use and conservation of commons. In this regard simplifying the legal regime and making it simple with least overlaps of institutions, authorities and functions would go a long way.
Page 42

Protecting and Conserving Commons For Common Good-Madhyapradesh PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Protecting and Conserving Commons For Common Good-Madhyapradesh PDF

Uploaded by

Copyright:

Available Formats

Protecting and Conserving Commons for common good - Needs a fresh legal perspective An Analysis of the State of Madhya

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

ii. iii. iv. v. vi. vii. viii. ix. x.

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Sections 3-26, Indian Forest Act, 1927. Page 19

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

See Section 19-26A Page 24

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

Protecting and Conserving Commons for Common Good_MP_ELDF

You might also like