Ownership by all means
SHARIB ZEYA
THIS essay proposes that the land taxonomy in Bihar is best understood as a tool to expand land ownership by the state.
1 The management of diara2 land in Bihar is suggestive of the manner in which such classifications emerge as artifacts deployed for dispossession and acquisition. At the outset I wish to present the lessons that emerge from my fieldwork to decode the state’s responses and actions towards diara land. Juxtaposing field contexts with laws relating to diara, I explain how the state addresses the issues of diara land through ‘selectively’ governed executive orders. Looking at some of the court judgments in the cases of diara disputes, I argue that the state interpretations of the classificatory provisions pertaining to land conveniently favour, through claims of ownership, a general expansion of wealth by the state. Charles Reich3 points out that becoming a provider of the biggest source of wealth is one of the most important functions of the modern nation state leading to its ‘expanding governmental power’.Based on his insight, I argue that since land is a source of wealth and an increase in land ownership is directly proportional to increase in wealth, it becomes important for the state to maximize its ownership of land. It necessitates creation of new ownerships by reclaiming land from other holders. In what follows, I present an account from my fieldwork conducted in Pragan Pur village in the Bhojpur district in Bihar.
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ive hundred and sixty three acres of land, constituting approximately 54 per cent of the total land area lying along the river Sone that flows on the south of Pragan Pur village, is under dispute. It was traditionally treated as common land by the villagers. However, like most other aspects of social life in the village, this land too was administered by the maliks.4 Contestations regarding ownership of this land remain unsettled between the maliks of the village, who claim the disputed land as their private property, and the state of Bihar which treats it as diara of river Sone, hence state land.The first title suit against the state’s claim for the said land appears in the court of law in 1976, was initiated by the maliks of the village following the decision of the district authority to distribute it among the landless of the lower castes. Enforcement of land reforms as an element of the twenty point economic development programme of Prime Minister Indira Gandhi laid the ground for allotment of state land to the landless. Accordingly, the mukhiya of the village, Dev Singh, persuaded the district authorities to settle this land, mentioned as diara in the land records, in favour of the landless. Parchas
5 of one acre each were issued to 173 people of the Harijan caste that included members from jatis like Musahars, Dhobis, Paswans and Binds.Since 1974, parchas were distributed in several phases by the district authorities in response to applications from the lower caste members of the village. These applications were prepared under the guidance of the mukhiya and forwarded by him to the authorities. The district authorities decided to settle the remaining part of diara in favour of the other backward castes (OBCs), such as Yadavs and Muslims. Application for the granting of parcha became a common affair for the villagers as well as district authorities. The maliks claimed that the contested land was part of their private property and when the last survey entry was done in 1971, it was submerged under water.
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he title suit made it awkward for the authorities to decide whether or not to proceed with issuing parchas for the disputed land. People from the backward castes were granted land in diara after the measurement and allocation by the ameen,6 but their parchas were not issued. Even four decades after allotment and cultivating the land, they do not have any documents to prove their title to the land. The maliks, citing the dispute, questioned the authority of the revenue officials to issue rent receipts to the parcha holders of diara land. Consequently, till date, the lower and backward castes of the village continue to cultivate what the state categorizes as diara land without paying rent for the settlement as the revenue officer stopped accepting it. The title suit filed by the maliks in the Ara civil court has not yet moved from the session court and very few hearings of the case have been held. The maliks of the village had also got involved in another title suit in the neighbouring village, thus finding it difficult to bear the expenses of two cases simultaneously.The contention over diara land in Pragan Pur village is indicative of the state’s difficulty in managing diara land in Bihar because of the changing nature of the land – from being submerged in the river, to sandy patches unsuitable for cultivation, to fertile tracts with the depositing of silt over the years. The difficulty facing the state ranged from surveying the diara area to settlement of these lands on fair rents.
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iara lands are managed by executive order from the land revenue department. The power enjoyed by its officials, including the ameen and land revenue officer, with the collector heading the district administration, are ‘selective’ if not arbitrary. The settlement is decided on receiving applications by the landless individuals who fall into the beneficiary category. These applications demand that a survey of the diara land be conducted so that settlements could be made which both avoid disputes and ensure fair and equitable rents. An ameen can appropriate or deny diara category to any parcel of land in his survey report following consultations with a local dweller who can sign the map, counted as an affidavit, approving the accuracy of the survey.7 Further executive processes are required to challenge the ameen’s survey report. The revenue officer has been invested with requisite power to settle all rents, which can be revised by the collector only if he considers the partial or entire remission of the rents in circumstances that made cultivation unachievable.8Surveying diara lands has always been a tricky issue for the state. The first professional diara survey of the Gangetic diara conducted in 1865-68 under Act IX of 1847, found it difficult to obtain a common fixed point with those of the revenue survey and often differed entirely from the village maps of the revenue survey.
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he Bihar Survey and Settlement Manual 1959, outlines an elaborate process to survey diara area and mark on ground the fluvial action of the river. The fluvial action of the river is to be marked out in relation with the intersecting point of the land and the village in the previous survey (also called the outer line). In addition, a base line depicting the point on land, which has not witnessed any fluvial action compared to the last survey as close as possible to the outer line, has to be marked. Following these processes on the ground by professional surveyors and ameens, the executive work relating to publication of maps by the district collector has to be completed within the guidelines of The Bengal Survey Act 1875. However, such a survey has to be conducted during the period when the river has receded.In a letter signed by the officiating secretary to the Government of Bengal, Revenue Department, regarding instruction for settlement of char
9 and diara lands, it was mentioned that the difficulty in settling such lands under the provisions of the Bengal Tenancy Act comes with the shifting character of these lands: ‘…it is to be borne in mind that diara lands change so rapidly that it is absolutely necessary to complete the survey and settlement in one season, for otherwise the estate may have to be re-surveyed and all the records corrected, and this may have to be repeated year after year… It must be practically impossible to carry this procedure through in one cold season.’10It becomes important for the state to extract rent on the basis of fertility of the land and enhance it as and when needed. The kabuliyat
11 form laying down the rule in char and diara estates prescribes rent based on physical condition of the land. Rents differ in situations when the land remains sandy and unfit for cultivation, when it becomes fit for ranching, when it becomes fit for growing barley, and when for growing wheat.
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ne of the ways that the problem of fixing a fair rent on such lands could be dealt with was by making settlements for small periods. Therefore, the manual of 1959 prescribed that the rent be settled year to year for an indefinite period. However, the Bihar Chaur, Diara and Gang Barar Public Land Temporary Settlement Policy, 2013, fixed the settlement for a period of five years. The 2013 policy, however, does not deal with diara survey and fixation of rent. It prescribes the guidelines for redistribution stating that the Chaur, Diara and Gang Barar Public land coming out of the rivers which have become arable due to change in nature may be temporarily settled for the purposes of agriculture for five years with eligible categories like Mahadalits, other Scheduled Castes, Scheduled Tribes, Backward Classes, and the family of soldiers attaining martyrdom in war.12 The land thus settled shall be non-transferable and can devolve hereditarily during the period of settlement.13It further states that in case a settled land is again submerged, this settlement shall automatically stand cancelled and no claim may be made against the government. After re-emergence from the river, temporary settlement of such land for five years will be made afresh, in accordance with the aforesaid manner.
14The ambiguity with which diara as a category of land works in the state renders it amenable to a number of disputes questioning its nature as well as ownership. There is no guideline specifying a time frame which can aid in deciding when a land ceases to be diara in the absence of fluvial action. This becomes crucial, especially after the 2013 policy which limits the period of settlement for five years, unlike the yearly renewal for indefinite period in the earlier provision, thereby making the provision of occupancy rights declared under section 180 of the Bihar Tenancy Act a proposition difficult to achieve, as it necessitates land holding for twelve consecutive years.
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he redistribution of diara land by the state by issuing tenancy parchas to the beneficiary on fixed rent for smaller durations with a clause of non-transferability and usability is consistent with the ‘ownership regime’ of the state. The state has a right to acquire these lands when it wishes to do so. Tied to a regime of state ownership, the temporariness of land holding creates a rent apparatus that ensures increasing wealth accruing to the state. It is a way of subverting private ownership and the act of payment of land revenue by the land holders is in conformity with land ownership by the state.Codification of land under different categories empowers the state to acquire and temporarily settle, thereby maximizing its claim over the land and subverting private ownership. The land taxonomy receives its legitimacy in the redistributive functions of the state. Land acquired under the Ceiling Act of 1961, the Bhoodan Yagna Act of 1954, Chaur, Diara and Gang Brar Policy of 2013 and several others are to be reallocated to the landless of the society belonging to prescribed sections under the specific act. Looking at some of the cases of land disputes, especially of the diara, inform us of the ways in which the state uses these classifications selectively to reclaim ownership.
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n Ram Ran Vijay Pd. Sinha vs State of Bihar And Ors,15 the petitioner pleaded the Patna High Court that his land (22.59 acres) should not be classified as class II16 with a ceiling limit of eighteen acres, i.e. equivalent to 7.2846 hectares, since he has a private tube well to irrigate it, but rather as class V land or diara land, which has a ceiling limit of thirty seven and a half acres equivalent to 15.368 hectares. The court directed the state to treat the land of the petitioner as diara, characterized by the fluvial actions of the land. The court stated: ‘It is a well known cannon of interpretation that where there are two provisions in an act, one of which is specific or of a special character and the other of a general character, the specific or special provision qualifies the general one and ought to be applied in preference to and unaffected by the general one.’17It further said that if the state believes that the nature of the land has changed, it had to be communicated as per Section 180 of the Bihar Tenancy Act, which provides the district collector the authority to declare if the land has ceased to be diara land.
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n Chandrabanshi Singh vs The State of Bihar & Ors,18 the Patna High Court reprimanded the state for creating a controversy on the land of the plaintiff by declaring it diara-khasmahal land where there was none, and termed the state’s behaviour in the case concerned as ‘mischievous’. The case was about land on which the plaintiff’s family was settled for eighty years. His ancestors were raiyats as per the record of the state and jamabandi or the revenue register was opened for the land and continued from that day. Revenue was accepted for the land and rent receipts were issued by the revenue officials. But, for some reason, the state suddenly stopped accepting revenue from the plaintiff and hence rent receipts were not issued.The state consequently denyed the interest of the plaintiff and challenged their holding of the land. Questioning the state’s claim the court stated: ‘The petitioner submitted that it was never khasmahal land and it was only locally referred to as Digha-Diara khasmahal. If we refer to the opinion of the GP (Government Pleader), it is clear that he acknowledges that this area is commonly called as Digha-Diara khasmahal. In that opinion itself, it is further stated that having been called as Digha-Diara khasmahal land, it is khasmahal land. In my view, they are two different things. Calling a property khasmahal and the property being a khasmahal property are two different things.’
The court not only denied the state’s claim of it being diara land but also accepted the view of the counsel appearing for the petitioner that mischief had been done by the state. It said: ‘If state can get rid of the petitioner then two things open up for the state. Firstly, state officials become free to start making settlements afresh. Needless to say what consequences flow. Secondly and more importantly, a road is planned to be constructed in future across the said land. The entire effort is to dispute and deny the title of the settlees, and thus, to deny them compensation and make the road cheaper for the state; in other words, to trample upon the rights of the citizen for wrongful gain to the state.’
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n the court cases related to diara discussed in the paper, it is interesting to note the way the state apparatus has acted selectively in response to the dispute relating to ownership and effective control of diara lands. In the Chandrabanshi Singh case, the state challenged the private use of land, claiming that being public diara land meant that it could be used for public purposes. In the Ram Ran Vijay Pd. Sinha case, the state could be seen as working in accordance with the land ceiling act by not accepting the land to be private diara land with a larger ceiling limit. In both cases, the state is trying to subvert private ownership by all means.The delay in the Pragan Pur diara case could be interpreted as another instance of this phenomenon. For four decades the state has not been able to bring sufficient evidence in front of the judiciary to defend its contention of the land as diara. However, control over the land through parchas by declaring it diara is consistent with the state’s claim. In both possible outcomes of the title suit, the state loses the land; either the land is given to the maliks as per their claim or the cultivators of the lower castes get occupancy rights under the provisions of the Bihar Tenancy Act. But the state’s inactiveness has kept the ownership interest of the state alive.
Footnotes:
1. By state owned land I refer to those lands which are not categorized as private property belonging to individual or group capable of holding them legally, but held by the state which can lease it out or reallocate it.
2. Diara, or the land that emerges out of the river when it changes its course, comprise a large share of land in Bihar, since a number of rivers and their tributaries flow through the state. In South Bihar alone, diara lands account for approximately 18 lac hectares of land. Also see Jagdish Prasad, Bihar: Dynamics of Development. Mittal Publications, 2007, p. 61.
3. A. Charles Reich, ‘The New Property’, The Yale Law Journal 73(5), 1964, pp. 733-787.
4. The landlords of the village were referred to as maliks in my discussion with the villagers.
5. Document of temporary settlement issued to the beneficiary indicating the details of the land and its boundaries, issued by the district authority.
6. Person who draws a land map after survey and measurement.
7. Article 11, Bengal Survey Act 1875.
8. Article 112, Bihar Tenancy Act 1885.
9. Sandy land rising out of bed of river or sea.
10. No. 914-T…R, Dated 12 October 1896. See J. Appendix, The Bihar Survey and Settlement Manual 1959.
11. For of acceptance for leases of char or diara lands have been prescribed in the Board of Revenue’s circular letter no. 1031-A, dated 18 March 1911. See also, Bihar Government Estates (Khas-Mahal) Manual, 1953.
12. Article 2(ii).
13. Article 4(v).
14. Article 4(vii).
15. 1978 (26) BLJR 639.
16. Section 4(b) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, fixes the ceiling area of land as eighteen acres, equivalent to 7.2846 hectare of land irrigated by such private lift irrigation or private tube wells as are operated by electric or diesel power, and provide or are capable of providing water for more than one season.
17. 1978 (26) BLJR 639.
18. 2014 (3) PLJR 617.