The Land Question

in Neoliberal India

This book examines the land question in neoliberal India based on a

cohesive framework focusing on socio-legal and judicial interactions in a
point of departure from the political-economy approach to land issues. It
sheds light on several complex aspects of land matters in India and evolves a
critical and multi-dimensional discourse by mapping out exchanges between
social and political actors, the State, elites, citizenry, and the legal battle and
judicial interpretations on land as right to property.
Based on the themes of socio-legal policy and perspective on ‘land’ on the
one hand and jurisprudence on the land question on the other, the volume
discusses topics such as conclusive land titling; urban land governance;
governance of forest land; land-leasing practices, policies, and interventions
from the perspective of women; land acquisition policies and laws; how
land matters interface with environmental issues; and judicial debates on
‘compensation’ against land acquisitions. It covers a wide range of case
studies from all over India by bringing together specialists from across
backgrounds.
Comprehensive and topical, this book will be useful to scholars and
researchers of development studies, political studies, law, sociology, political
economy, and public policy, as well as to professionals in NGOs, civil society
organisations, think tanks, planning and public administration, lawyers, civil
services and training institutes, and judicial and forest academies. Those working
on rural and urban land issues in India, land management, land governance,
environmental laws and governance, property rights, resource conflicts, social
work, and rural development will find this book to be of special interest.

Varsha Bhagat-Ganguly has served as Professor at the Centre for Rural

Studies, Lal Bahadur Shastri National Academy of Administration,
Mussoorie; and Nirma University, Ahmedabad; and as Fellow at the Indian
Institute of Advanced Study, Shimla (all in India). She actively researches on
social and developmental issues. Apart from contributions to journals and
books, she has edited three academic journals. Among her 14 publications
are: Protest Movement and Citizens’ Rights in Gujarat (2015); Land Rights
in India: Policies, Movements and Challenges (2016, 2018); Journey towards
Land Titling in India (2017); and India’s Scheduled Areas: Untangling
Governance, Law and Politics (2019). A forthcoming publication is
Electronic Waste Management in India: Opportunities and Challenges.
The Land Question
in Neoliberal India
Socio-Legal and Judicial
Interpretations

Edited by Varsha Bhagat-Ganguly

First published 2021
by Routledge
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© 2021 selection and editorial matter, Varsha Bhagat-Ganguly;
individual chapters, the contributors
The right of Varsha Bhagat-Ganguly to be identified as the author
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To all land dependents –

for their land rights and well-being through effective land

governance
Contents ContentsContents

List of figures ix
List of tablesx
List of contributorsxi
Forewordxiv
TAJAMUL HAQUE
Acknowledgementsxv
List of abbreviationsxvi
Glossaryxx

1 Introduction 1
VARSHA BHAGAT-GANGULY

PART 1
Socio-legal and policy perspectives on ‘land’25

2 Approaches and methods of land title legislation in India:

far from reality or close to the ground? 27
AMLANJYOTI GOSWAMI, DEEPIKA JHA, AND KAYE LUSHINGTON

3 Critical assessment of recent real estate regulatory reforms

in urban spaces: whether trickle-down effect is for all? 51
RAY SHARAT PRASAD

4 The forest rights struggle and redefining the frontiers of

governance: dismantling hegemony, restructuring authority,
and collectivising control 75
C.R. BIJOY

5 Maharashtra Agricultural Land Leasing Bill, 2017:

exploring opportunities for landless and women’s collectives 100
SEEMA KULKARNI AND PALLAVI HARSHE
viii  Contents
6 Customary rights and traditional wisdom: furthering land
governance in Northeast India 126
SONALI GHOSH AND CHANDRA BHUSHAN KUMAR

PART 2
Evolving jurisprudence on the land question149

7 Land acquisition law in neoliberal India: old wine in a

new bottle? 151
RITA SINHA

8 Land acquisition for economic development: a comparative

analysis of some landmark court judgments of the United
States of America and India 172
MALABIKA PAL

9 Neoliberalism, environmental protection, and regulation of land 192

SHIJU MAZHUVANCHERY

Index211
Figures FiguresFigures

3.1 Typical structure involved in setting up REIT 61

6.1 Elements of the land acquisition debate in neoliberal
Northeast India 141
Tables TablesTables

3.1 Returnable land and benefits to landowners per 0.4 hectares

of land pooled 56
4.1 Forest diversion from 1950 to 2018 86
4.2 State acts of commission to violate/dilute FRA 87
5.1 Profiles of tenant farmers interviewed in the study villages 109
5.2 Caste-wise details of other kinds of land cultivated by tenants 110
5.3 Area and population details in the study villages 111
5.4 Land ownership in the study villages 111
5.5 Household sources of income in the study villages 112
5.6 Duration of leases in the study villages 113
5.7 Type of contract and terms of leasing-in 114
6.1 Constitutional status and administrative structure 129
6.2 Forest and community control in Northeast India 130
Contributors ContributorsContributors

C.R. Bijoy is with the Campaign for Survival and Dignity, a national coali-
tion of Adivasi and forest dwellers’ organisations (www.forestrigthsact.
com). His areas of engagement and interest are in non-State and State-
led processes addressing human rights issues; land and forest rights;
self-governance and autonomy, particularly of tribals or Adivasis; forest
dwellers, and indigenous peoples. He has published more than 60 papers
in books, research journals, and popular magazines.
Sonali Ghosh is an Indian Forest Service officer with more than 20 years of
work experience in forest and wildlife conservation in India. She has a
dual master’s degree in wildlife science and forestry and a PhD in geogra-
phy from Aberystwyth University, UK. She has worked as a field manager
in the country’s finest Protected Areas (Kaziranga and Manas) and has
travelled extensively and written about forests and people’s livelihood
issues in Northeast India. A WWF-PATA Bagh Mitra awardee, she has
also served as a scientist (on secondment) at the UNESCO Category 2
Centre on World Natural Heritage Management and Training for Asia
and the Pacific Region at Wildlife Institute of India, Dehradun. She is
member of IUCN World Commission on Protected Areas, World Herit-
age and Ecosystem Management groups.
Amlanjyoti Goswami is a faculty member at the School of Governance at
Indian Institute for Human Settlements, New Delhi and also heads the
Legal and Regulation Team. He works on law, policy, and governance,
including research in land acquisition, decentralisation and knowledge
epistemologies. He studied sociology and law at the University of Delhi
and has an LLM from Harvard University. He has played key roles in the
revision of municipal corporation and town and country planning acts,
worked on cultural and creative economy issues, and provided policy
inputs to the Planning Commission on the XII Plan.
Pallavi Harshe is a development professional based in India engaged in
research and teaching, specifically from a gender and caste perspec-
tive. She has been working with the Society for Promoting Participative
xii  Contributors
Ecosystem Management (SOPPECOM), Pune, and is involved in various
capacities to ensure land rights to rural women farmers and entitlements
to single rural women.
Deepika Jha is at the Centre for Land Governance, School of Governance,
Indian Institute for Human Settlements, New Delhi. She has a master’s
degree in planning, with specialisation in regional planning, from the
School of Planning and Architecture, New Delhi. She has been studying
land records modernisation and e-governance initiatives in urban and
peri-urban areas in different states/union territories of India. She has also
worked on identifying best practices followed by different states in land
records administration and any persistent gaps in the systems.
Seema Kulkarni is one of the founding members and currently Senior
Fellow, Society for Promoting Participative Ecosystem Management
(SOPPECOM), Pune. She coordinates gender and rural livelihoods activi-
ties within the organisation and has undertaken various research pro-
jects and programmes concerned with decentralisation, gender and land,
water, and sanitation. Several articles/book chapters on these have been
published. She is actively associated with the women’s movement, is a
member of the national-level network Mahila Kisan Adhikaar Manch
(MAKAAM), Forum for Women Farmers’ Rights, and anchors the net-
work at the Maharashtra level. Her recent publication as co-editor is
Ecologies of Hope & Transformation: Post-Development Alternatives
from India (2018).
Chandra Bhushan Kumar is an Indian Administrative Service officer with
more than 25 years of working in areas of public policy and govern-
ance. As a district administrator, he served in tribal-dominated areas of
Arunachal Pradesh and Andaman and Nicobar Islands, wherein specific
insights on administering scheduled areas were acquired. A mathematics
and law graduate, he also has a master’s degree in public policy from
Syracuse University. He subsequently completed his PhD in human geog-
raphy from Aberystwyth University, UK, wherein he examined the water
governance issues of the megacity of Delhi.
Kaye Lushington is with the Legal and Regulation Team at Indian Institute
for Human Settlements, New Delhi. She is a lawyer by training from
ILS Law College, Pune, and has a master’s degree in development stud-
ies from TISS, Mumbai. She has examined land record modernisation
efforts in various states of India, with a focus on status of modernisa-
tion initiatives, extent of integration of survey, land records and registra-
tion functions in these states, changes in relevant legislation, and ease
of property transactions. Her key area of interest is urban governance,
higher education and its regulation, and intellectual property rights and
their relevance and application in cultural knowledge production.
 Contributors xiii
Shiju Mazhuvanchery is Professor, Christ Academy Institute of Law, Ban-
galore, India. A teacher for more than 18 years, his research interests
include environmental law, constitutional law, and competition law. He
was one of the rapporteurs for the High-Level Segment of the CoP 11
of the Convention on Biological Diversity held in Hyderabad in 2012.
He is a member of the Green Growth and the Law Working Group of
the Green Growth Knowledge Platform – a joint initiative of the Green
Growth Institute, OECD, World Bank, and UNEP. He is also on the edi-
torial board of the Indian Journal of International Law and is a regular
contributor to the Yearbook of International Environmental Law.
Malabika Pal is Associate Professor of Economics at Miranda House, Uni-
versity of Delhi, India. She has worked as Associate Professor in Law
and Legal Studies, School of Law, Governance and Citizenship, Ambed-
kar University, Delhi. Her research interests are in the fields of law and
economics and international finance. She is a recipient of the National
Scholarship and the Ford Foundation Scholarship. She has recently pub-
lished Economic Analysis of Tort Law - The Negligence Determination,
Routledge 2020.
Ray Sharat Prasad is a practising lawyer, associated with a reputed Delhi-
based law firm, with a specialisation in real estate and the hospitality sec-
tor, and has advised several multinational and Indian companies for more
than 15 years on Indian and cross-border transactions. He continues
to contribute to urban development–related policy documents. He has
assisted the Ministry of Housing and Urban Affairs (MoHUA), Govern-
ment of India, in drafting the Real Estate (Regulation and Development)
Bill, 2013, and has been a part of the stakeholders’ consultation process
on the ‘single window approval system’ organised by MoHUA in 2014.
Rita Sinha is an Indian Administration Service officer and has served for
37 years. She was the first secretary of the Department of Land Resources
(DoLR), serving from January 2008 to July 2010, when she retired. She
has been part of programmes initiated by the DoLR – NLRMP (National
Land Records Modernization Programme) when conclusive land titling
was conceptualised and the first two national titling acts were drafted;
The Land Acquisition Act, 1894, was amended; and the R&R Bill, 2009,
and The LA (Amendment) Bill, 2009, were presented to Parliament,
both of which lapsed in February 2009. She was a member of Technical
Advisory Group (TAG), for LGAF (Land Governance Assessment Frame-
work) by the World Bank. She has sustained her interest in land-related
issues and has contributed to a few academic journals.
Foreword ForewordForeword

In rising and transforming India, there is growing albeit competing demand

for land for high-value agriculture, infrastructure, housing, urbanisation
and industrialisation. At the same time, the slow pace of updating and dig-
itisation of land records, coupled with lack of conclusive land titles, insecu-
rity of land tenure, and informal tenancy, continue to affect investment and
economic growth. Hence, there is a felt need for appropriate land policies
which will ensure efficient, equitable, and sustainable uses of land for accel-
erated, diversified, and inclusive economic growth in India. During the past
five years or so, the Indian government as well as some state governments
have undertaken several new land policy initiatives such as agricultural land
leasing reform, real estate regulatory reform, and fast-track digitisation of
land records which are likely to impact economic growth positively and
significantly. But there are still huge implementation challenges with respect
to all these initiatives. Besides, effective implementation and codification
of customary land laws in the Northeast and other tribal areas, promotion
of women’s collective farming on the pattern of Kudumbashree in Kerala,
improvement in land acquisition law, and proper regulatory frameworks for
inclusive and sustainable uses of land would be essential. This volume edited
by Varsha Bhagat-Ganguly and entitled The Land Question in Neoliberal
India discusses some of these important aspects of land policy reforms
which have far-reaching implications for accelerated, inclusive, and sustain-
able economic growth. I am sure the book will be of great value to social
scientists, lawyers, policy makers, and others engaged in policy discourse on
land issues.
Tajamul Haque
Ex-Chairman, Special Cell on Land Policy
NITI Aayog, Government of India
Acknowledgements AcknowledgementsAcknowledgements

Among various land issues, land acquisition, land value, and revenue are
known because of their relevance in the day-to-day lives of people in India.
The problem of land acquisition entered into the public domain mainly
because of the hue and cry by social activists regarding large-scale displace-
ment and lack of rehabilitation and resettlement of the large number of
displaced populations across India. Land as a property and permanent asset
has made people aware about its various uses, mainly for housing, industrial
purpose, and economic growth of the country. A very few scholars have
been able to bring the land question (including land reforms, land govern-
ance, land records, land titling system, land acquisition, and land rights)
comprehensively to the public domain and public knowledge.
I took almost 12 to 15 months to mobilise contributors from different
disciplines – law practitioners, senior civil servants, academia, researchers,
and social activists working on land issues. I thank all the contributors for
readily agreeing to write. They have not only responded to my persistent
editorial queries, but some of them also prepared papers within a short
time span without compromising the quality of this volume. It is not easy
to work on a subject that is multi-dimensional and to be inter-linked with
newer themes of socio-legal and judicial interpretations while mapping
changes in neoliberal India. I deeply appreciate their academic rigour, hard
work, and patience and am grateful for their contribution for shaping the
volume that makes a mark on the existing body of work on land issues in
India. I also thank them for going through the draft introductory chapter
and giving feedback for its improvement.
Special thanks go to the anonymous reviewer of the manuscript. Much
credit goes to the reviewer for the content of this volume.
Dr Nupur Chowdhury is the first to be thanked, for she introduced me
to many academics as potential contributors to the volume. I was able to
discuss the volume with her in detail, and she responded very thoughtfully
to each point of discussion.
I am grateful to Dr Tajamul Haque for writing the foreword to this vol-
ume based on his vast experience and deep knowledge of land issues and
their close association with agrarian relations, and resource rights, and how
socio-political and economic relations are altered with land struggles.
Abbreviations AbbreviationsAbbreviations

AMRUT Atal Mission for Rejuvenation and Urban Transformation

APCRDA Andhra Pradesh Capital Region Development Authority
APCRDAA Andhra Pradesh Capital Region Development Authority
Act
APDR Association for Protection of Democratic Rights
BAPL Bengal Aerotropolis Project Limited
BDO Block Development Officer
BJP Bhartiya Janta Party
BRTS Bus Rapid Transit System
CAFA Compensatory Afforestation Fund Act
CAG Comptroller and Auditor General
CBA Cost-benefit analysis
CCI Competition Commission of India
CLR Computerisation of Land Records
COC Committee of creditors
CPI (M) Communist Party of India (Marxist)
CRZ Coastal Regulation Zone
CSE Centre for Science and Environment
DDA Delhi Development Authority
DFO District/Divisional Forest Officer
DILRMP Digital India Land Record Modernisation Programme
DoLR Department of Land Resources
EIA Environmental Impact Assessment
EIC East India Company
EPA Environment (Protection) Act, 1986
EWS Economically weaker sections
FAO Food and Agriculture Organization
FAR Floor Area Ratio
FCA Forest Conservation Act, 1980
FDI Foreign direct investment
FRA Forest Rights Act/The Scheduled Tribes and Other Tradi-
tional Forest Dwellers (Recognition of Forest Rights) Act,
2006
 Abbreviations xvii
FTL Full Tank Level
GIFT Gujarat International Finance Tec-City
GMC General Motors Corporation
GNIDA Greater Noida Industrial Development Authority
G.O. Government Order
GOI Government of India
HIG High income group
HMWSSB Hyderabad Metropolitan Water Supply and Sewerage
Board
HRIDAY Heritage City Development and Augmentation Yojana
IBC Insolvency and Bankruptcy Code, 2016
IFA Indian Forest Act, 1927
IIHS Indian Institute for Human Settlements
IMEG Independent Multi-disciplinary Expert Group
IMF International Monetary Fund
INR Indian rupee
IRA Indian Registration Act, 1908
ISFR India State Forestry Report
JFM Joint Forest Management
JLG Joint Liability Groups
JNNURM Jawaharlal Nehru National Urban Renewal Mission
LA Land acquisition
LAA Land Acquisition Act, 1894
LARRA Land Acquisition, Rehabilitation and Resettlement Authority
LFG Left Front Government
LGAF Land governance assessment framework
LPG Liberalisation, privatisation, and globalisation
LPP Land pooling policy
LPS Land pooling scheme
LWE Left wing extremism
MALLA Model Agricultural Land Leasing Act, 2016
MMRDA Mines and Mineral Regulation and Development Act
MoEF Ministry of Environment and Forest
MoEFCC Ministry of Environment, Forest, and Climate Change
MoHUA Ministry of Housing and Urban Affairs
MoRD Ministry of Rural Development
MoRTH Ministry of Road, Transport and Highways
MoTA Ministry of Tribal Affairs
MPD Master Plan for Delhi
MPEB Madhya Pradesh Electricity Board
MRTS Mass Rapid Transit System
MTALA Maharashtra Tenancy and Agricultural Lands Act, 1948
NCLT National Company Laws Tribunal
NCMP National Common Minimum Programme
NCRB National Crime Records Bureau
xviii  Abbreviations
NDA National Democratic Alliance
NEC Northeastern Council
NEFA North East Frontier Administration
NER Northeastern region
NGT National Green Tribunal
NIC National Informatics Centre
NLRMP National Land Record Modernisation Programme
NLUP New Land Use Policy
NMDC National Mineral Development Corporation
NOC No Objection Certificate
NREGS National Rural Employment Guarantee Scheme
NSSO National Sample Survey Organisation
NT Nomadic Tribes
NTFP Non-Timber forest products
NTPC National Thermal Power Corporation
NLUP New Land Use Policy
OBC Other Backward Classes
PESA Panchayats (Extension to the Scheduled Areas) Act, 1996
PIL Public Interest Litigation
PLFS Periodic Labour Force Survey
PPP Public-private partnership
PSP Public/semi-public facilities
PSU Public Sector Undertakings
PVTG Particularly Vulnerable Tribal Groups
RBI Reserve Bank of India
REIT Real Estate Investment Trust
RFCTLARR Right to Fair Compensation and Transparency in Rehabili-
tation & Resettlement
RFCTLARRA Right to Fair Compensation and Transparency in Rehabili-
tation & Resettlement Act, 2013
RoI Returns on investments
R&R Rehabilitation and resettlement
ROR Records of Rights
SA Schedules areas
SC Scheduled Castes
SCM Smart City Mission
SEBI Securities and Exchange Board of India
SECC Socio-Economic Caste Census
SERPP Society for Elimination of Rural Poverty Programme
SEZ Special Economic zone
SFR State Forestry Report
SIA Social impact assessment
SIMP Social Impact Management Plan
SKJRC Singur Krishi Jomi Raksha Committee/Committee to Save
the Farmland of Singur
 Abbreviations xix
SPV Special purpose vehicle
sq. mts. Square metres
sq. yds. Square yards
SRA&ULR Strengthening of Revenue Administration and Updating of
Land Records
SUCI Socialist Unity Centre of India (communist party)
TDR Transferable development rights or tradable development
rights
TMC Trinmul Congress
TML Tata Motors Ltd.
TOD Transit-oriented development
TWAIL Third World Approaches to International Law
ULB Urban local body
UNECE United Nations Economic Commission for Europe
UNESCO United Nations Educational, Scientific, and Cultural
Organisation
UPA United Progressive Alliance
UPOR Urban Property Ownership Record
USF Unclassed State Forests
UT Union Territory
WPA The Wildlife (Protection) Act, 1972
ZDP Zonal development plan
Glossary GlossaryGlossary

Abadi Deh (states of Haryana, Punjab) / Lal-dora area  Inhabited Site of

Village. Abadi deh is also known as lal-dora area.
Bargadar  Land tenant, sharecropper
Conclusive titling  A title system which confers absolute title, not open to
challenge
Deed  Any document sealing an agreement, contract, etc. A sale deed is a
document evidencing a particular sale-purchase agreement. A title deed
is a document which gives the holder the title to property.
Deed-based register  Public repository where documents for providing evi-
dence of land transactions are lodged, numbered, dated, indexed, and
archived.
Devasthan land  A village, portion of a village, or land held under a dev-
asthan inam given for cultivation in exchange for service that a person
provides during an annual religious procession.
Encroached gairan/grazing lands  Grazing land or community land is a
part of the common property resource of a village. The major purpose
of grazing lands is to ensure common land for grazing of the cattle of
the village. As a part of the movement by dalits to get land rights, the
dalits in Marathawada even today continue to possess grazing lands
and cultivate them for their personal use.
Encumbrance  A burden on a property, generally one that affects the abil-
ity to transfer title, or one which affects the condition of the property.
Examples are liens, mortgages, taxes, easements, water rights, etc.
Hadki Hadvala  Collective inam land given to Mahars
Inam land (state of Gujarat)  Land which was given away as a grant, typi-
cally free of rent and held hereditarily in perpetuity. Different categories
exist within inam lands, depending on the purpose/type of grant and the
prevalent revenue system.
Jamabandi (states of Punjab, Haryana)  Record of Right (RoR); land
record maintained by Revenue Department
Khas Mahal Land (states of Bihar, West Bengal)  A category of govern-
ment land which is leased out to individuals for various purposes and
is non-transferable
 Glossary xxi
Khazan land  Reclaimed wetlands, salt marshes, and mangrove areas,
where tidal influence is regulated by the construction of embankments
and sluice gates
Land acquisition  Acquisition of land by the government for public pur-
pose, under eminent domain.
Land reforms  Umbrella term for tenancy reforms, including ‘land to the
tiller’, land ceiling regulations, and zamindari abolition
Mouza  Administrative block
Mutation  Process of legally changing a parcel’s owner in the Record of
Rights. It can occur after sale-purchase, inheritance, gift, partition etc.
Mutation typically follows registration.
Patwari  A village accountant or registrar
Poramboke land (state of Tamil Nadu)  Land which is not assessed in rev-
enue records. Originally, these were uncultivable lands (hence outside
revenue accounts) which were set aside for public use. It has now typi-
cally come to mean government land in villages.
Presumptive titling  A title system in which one is presumed to be the
owner, unless proven otherwise
Rayat/ryot  Landowners
Record of Right (ROR)  Land record in which various rights and liabilities
in respect of every piece of land are noted
Registration (deed based)  Recording a transaction deed for land or prop-
erty between buyer and seller; buyer and seller get a registered sale deed;
State gets stamp duty.
Shajra-nasb (states of Haryana, Himachal Pradesh, Punjab)  Genealogy
tree of each land-owning family in a village
Shamilat Deh (state of Haryana)  Part of village outside abadi deh, which is
considered as jointly owned by the village community. Public facilities,
including grazing land, etc. are often located in Shamilat Deh.
Survey/Resurvey (state of Gujarat)  Operations conducted towards settle-
ment, or recording and preservation of connected rights. A ‘resurvey’
is used when an area has existing records, and these are being updated.
Title-based Register  The Title Register serves as the primary evidence of
ownership, within a title-based registration system.
Wajib-ul-arj (state of Himachal Pradesh)  Part of the Record of Rights,
which documents the rights and liabilities of various parties, based on
local customs. It includes customary rights on common lands, including
grazing rights, as recorded during settlement operation.
1 Introduction Varsha Bhagat-GangulyIntroduction

Varsha Bhagat-Ganguly

This volume expands the discourse on three important aspects of land in

India: ‘land question’, ‘neoliberal India’, and ‘socio-legal and judicial inter-
pretations’. Regarding the ‘land question’,1 instead of using land issues as
a generalised term or land regime which is implicitly expressing the State’s
supremacy, it proposes an overarching term to make ‘land’ more cohesive
and comprehensive. The ‘land question’ incorporates ‘land’ as a property;
as a resource; as a medium to sustainable development – environmentalism,
conservation, protection, rejuvenation, and afforestation; and how people
relate to ‘land’ – as wealth, social status, power, socio-cultural identity, and
land rights and land use. The land question also incorporates its multi-
dimensional and systemic associations, such as land record, land titling,
land governance, land acquisition, land markets and land economics, land
rights, land use and closely linked to the agrarian question, and so on.
Neoliberal India has dealt with the ‘land question’ in varied ways, and
these find different expressions and variations from different segments. Sev-
eral government departments as well as actors within the Planning Commis-
sion (NITI Aayog 2014 onwards), industry and trade bodies, national and
state legislatures, civil society organisations, political parties, and political
groupings press their opinions and agendas on land legislation (Sud 2012:
84). Two broad sets of views exist with regard to the liberalisation of land –
(1) proponents of using land as a resource for economic growth versus
(2) land as an asset and valuing associated non-monetised concerns. This
volume captures shifts and trends in the thinking and doings of the Indian
government post-1991 (neoliberal India) on the land question (popularly
known as introducing the structural adjustment programme [SAP]/New
Economic Policy [NEP]) and how Indian citizens and others have responded
to shifts in land policies and laws. ‘Neoliberal’ India refers to pluralistic
dimensions and three intertwined manifestations of neoliberalism: an ideol-
ogy, a mode of governance, and a policy package (Steger and Roy 2010: xi).
In India, it is believed that ‘neoliberalism’ has set its roots as an economic
ideology2 with connotations of a market-friendly political agenda (free-mar-
ket, foreign investment, worldwide flow of goods, etc.), facilitating a ‘para-
digm’3 and decision making provided by the ruling political parties since the
late 1990s; and changes in policy regime that are endorsed by elites.
2  Varsha Bhagat-Ganguly
The attempt to understand social, legal, and judicial interpretations of
‘land’ is multi-dimensional. ‘Social’ broadly refers to a collage of opinions,
responses, and actions by a variety of actors and organisations on ‘land’.
The volume explores whether the social, legal, and judicial interpretations
are inter-linked and have circularity, that is, one directly affecting the other,
and if they do so, which are the visible forms; or though they are not clearly
inter-linked, whether they are influential with regard to one another. For
example, protests against land acquisition led to enaction of a new law,
RFCTLARRA, 2013 (Right to Fair Compensation and Transparency in
Rehabilitation and Resettlement Act). Nielsen and Nilsen (2014) mention
that such a ‘right based agenda’ as a hegemonic process shows how law
making is a complex and contradictory practice seeking to negotiate a com-
promise equilibrium between subaltern groups vulnerable to marginalisa-
tion and capable of mobilisation, and dominant groups whose economic
interests are linked to spaces of accumulation through market-oriented
reforms. The judicial interpretation regarding land acquisition, principle of
eminent domain (ED), and public purpose vary case to case – in some cases
approving land acquisition by the State following the principle of ED, while
in other cases granting supreme importance of land management by Adi-
vasis through local governance institutions, that is, Gram Sabha. Chowd-
hury (2014) calls such range of variations in judicial interpretations ‘judicial
activism to judicial adventurism’. This volume maps out changes, challenges,
opportunities, and manifestations in the social, legal, and judicial domains
that signify neoliberal India, which is distinctly different from the political
economy approach to ‘land’ issues.

Debates over land as property – origin and continuity

India chose the Constitution as a path to democracy and development;
every elected ruling party was expected to be bound by the provision of the
Constitution. The Right to Property was enshrined as a fundamental right
in the Indian Constitution in 1951, which was in tune with the Universal
Declaration of Human Rights, 1948. However, it seems that the Constitu-
ent Assembly4 did not envision the country as socialist, unlike communist-
socialist countries where all property belongs to the State (Sathe 2017: 20).
With the first amendment to the Indian Constitution, that is, insertion of
Article 31-A and 31-B, it was considered the beginning of a tussle between
the Judiciary and the Legislative, induced by the Parliament echoing the
then social ethos and sentiments. The Parliament defined ‘Estate’, which
was expanded by further Constitutional amendments, which covered ‘entire
agricultural land in the rural areas’, including waste lands, forest lands, and
lands for pasture or sites of buildings. Introducing Schedule Nine5 and Arti-
cle 31-B6 through subsequent amendments was another attempt to usurp
judicial power, which is interpreted as ‘autocratic power was sustained by
democratic processes’ (Salian 2002: 234). Land entered the concurrent list
 Introduction 3
of the Indian Constitution: the laws, administrative procedures, and institu-
tional mechanism for land governance and land use remained state-subject,
and thus dealings with the land question vary across the states in India.
The higher Judiciary was made the arbitrator to maintain the just balance
between private rights and public interests.
The tussle between the Judiciary and the Legislative is also visible with the
44th Constitutional amendment in 1978 which shifted status of the Right to
Property to Constitutional Right, with effect from 1979, wherein the Right
to Property accepted doctrine of individual right to property; conversely, a
denial of common land and communal holding of land (Salian 2002: 233;
Sathe 2017: 21). Consequently, the property loser could approach the High
Court and not Supreme Court in case of a conflict. This is one of the rea-
sons for huge variation in judicial interpretations regarding land acquisi-
tion and public purpose; ‘public purpose’ is not yet defined in a way which
is accepted to all. Simultaneously, with respect to land – land acquisition
for public purpose from a person cultivating land – the government needs
to pay compensation at market value (Sathe 2017: 21). This amendment
also reveals a conflict between the Fundamental Rights and the Directive
Principles (which asks the State to promote economic equality – abolition
of Zamindari) (Sathe 2017: 22) regarding land as property. Redistribution
of land became a seed for a gamut of land reform measures, including law
making, tenancy reforms, evolving land administrative structures/machin-
ery, and introducing government programmes for poverty alleviation and
social justice.
The said Right to Property as a fundamental right was not absolute, as
though the State could take the property for public purpose; it was subject
to the law of reasonable restrictions in the interest of the general public,
that is, after compensation was paid. Such amendments by parliamentar-
ians are seen as reflections of social aspirations. Mitra (2017: 36) describes
that property rights were driven by mixed feelings and ideological stances in
the first 30 years of independence – distributive justice as well as populism,
which eventually led to abuse of land acquisition laws. When land acquisi-
tion started occurring at unprecedented levels post-1991,7 several protests
took place in different corners of India. This phase showed stalling of land
redistribution or land reforms, changes in land use, booming of land mar-
kets, efforts for digitisation of land records, and conclusive titling; negligible
changes in land governance and procedures were made. Such inter-linkages
between social sentiments and actions against land acquisition; the role of
the Judiciary as main arbitrator and reviewer of Constitutional amend-
ments; the administrative machinery selectively following and enforcing the
rule of law, by the Legislative or Judiciary; and actions by the Legislative to
deal with the land question are explored in this volume.
Resistance of land dependents against land acquisition, withdrawal or
continuation of development projects in response by the Executive – with or
without judicial intervention – enaction of a new set of laws echoing public
4  Varsha Bhagat-Ganguly
demands and aspirations, such as the Forest Rights Act8 (FRA) for recogni-
tion of forest rights of forest dwellers) while sometime evading public policy
(Forest Conservation Act, 1980; Special Economic Zone, 2005; Compen-
satory Afforestation Fund Act (CAFA), 2016)9 reveal different patterns of
criss-cross and conflicts between the (Indian) Society, the Legislative, the
Executive, and the Judiciary in neoliberal India. Judicial interpretations
seem to follow mandates of the State/present development paradigm some-
times and issue orders that contradict the spirit of the law and overlook
the Executive’s wrongdoings. For example, the interim order on 13 Febru-
ary 2019 regarding FRA calls for evicting hundreds of thousands of forest
dwellers whose claims have been rejected by the authorities. In the cases of
Niyamgiri – mining project of Vedanta10 and Singur11 – land acquired in Sin-
gur for the Tata Motors Factory, the Supreme Court reinstated the impor-
tance of democratic institutions and processes – the importance of Gram
Sabha (village assembly) and the return of 1,000 acres of agricultural land
to ensure the livelihood of small and marginal farmers were established,
respectively. Such judgments echoed social voices and concerns.

Unfolding the land question in India

The ‘land’ has several connotations – land as a resource is closely linked to
a factor of production (labour, capital, and economic enterprise) and leads
to disputes and conflicts. The ‘land’ as territory refers to both, relations and
ownership – whether land exclusively belongs to the government or belongs
to citizens and how do they relate with land. Land as property has mul-
tiple dimensions – ownership at an individual level, communal level, and
state level. At the individual level, the ownership of land could be through
two routes – earned and through succession. Individual ownership of land
through succession is largely addressed by personal laws while the State
deals with it through a mix of laws and procedures related to registration
and stamp duty for earned property. As property, it is directly linked to land
acquisition and land market (emotional value, real estate value, and com-
pensation). Land has been closely associated with its use (for agriculture,
housing, and productive asset), its value and land market, and its acquisi-
tion. Ownership of land in India has been presumptive in nature; thus, the
land record and titling are stressed upon, as they are the main evidences of
landownership and could also be used in the courts during litigation. Land
as a productive asset played a significant role in an agriculture-based econ-
omy (capital and labour, government earning land-based revenue), which
led to land reforms through various laws and administrative measures (land
redistribution, introduction of a ceiling on extent of landownership, ten-
ancy, and tenurial rights/land to the tiller). Those who do not own land, but
whose livelihood and identity are associated with land, are demanding own-
ership or rights to land (access, use, management) (Bhagat-Ganguly 2016).
 Introduction 5
When Adivasis12 are losing their lands, the issue of land alienation (Centre
for Equity Studies 2016) under development discourse occupies important
space. Land as resource and resource rights,13 land grabs, and need for land
pooling are newly enunciated issues.
Many researchers believe that hundreds of land laws create confusion
and conflicts because of contrasting provisions. Various departments –
rural development, commerce, agriculture, forests, fisheries, ports, rev-
enue, etc., administer matters of land. Until the 1980s, land was a very
important component for revenue generation for the government; tax and
revenue collection were ensured through classification of land (cultiva-
ble, waste, fallow, shallow, marshal, etc.) and under which region it is –
scheduled areas, national security areas, or any other. These aspects are
largely taken care of by the land governance or administration system. The
construct ‘land question’ aims to discuss all the aforementioned issues/
dimensions together, which are closely associated with one another; some
are dealt with through a bundle of laws, while some are guided by admin-
istrative procedures.
In traditional parlance, land administration or governance (of late called
‘land management’) was considered to be the important system to deal
with different dimensions of land, such as land record system, land title
system, land-based revenue earning, and compensation value against land
acquisition by the State, following legal and procedural mandates. The term
‘land administration’ was coined in 1993 by the United Nations Economic
Commission for Europe (UNECE) in its Land Administration Guidelines.
In 1996, a UNECE document mentions that a land administration system
should ideally: guarantee ownership and secure tenure; support the land
and property tax system; constitute security for credit systems; develop and
monitor land markets; protect state lands; reduce land disputes; facilitate
land reform; improve urban planning and infrastructure development; sup-
port land management based on consideration for the environment; and
produce statistical data.14 Land records encompass different types of land,
survey and settlement process, records of rights (RoRs), customary rights,
tenancy arrangements and tenurial rights, conversion of land, change in
land use, and spatial data.
The World Bank felt the need to develop a land governance assessment
framework (LGAF) as a diagnostic instrument in the early 2010s in India.
The manual of LGAF (The World Bank 2013: 6) describes the need for a
systematic assessment of land governance arising from three factors: (1) sus-
tainable growth and poverty reduction; (2) better coordination among land
governance institutions, leading to a reduction in the gap between legal pro-
visions and their actual implementation; and (3) dealing with the technical
complexity and context specificity of land issues and the consequent change
which may be resisted by powerful stakeholders benefiting from the status
quo through a participatory and deliberative process.
6  Varsha Bhagat-Ganguly
The manual further elaborates that the LGAF allows identifying key areas
of good governance practices, such as:

(i) 
how property rights to land (at group or individual level) are
defined, can be exchanged, and transformed; (ii) how public over-
sight over land use, management, and taxation is exercised; (iii)
how the extent of land owned by the state is defined, how the
state exercises it, and how state land is acquired or disposed of;
(iv) the management of land information and ways in which it can
be accessed; (v) avenues to resolve and manage disputes and hold
officials to account; and (vi) procedures to deal with land-related
investment.
(The World Bank 2013: 6)

The LGAF and the land question apparently have almost a similar set of con-
texts and concerns in neoliberal India, such as land property rights, need for
updated and efficient land records system and conclusive land titling system,
strategy for meeting demands of land – coming from industrial units and pri-
vate enterprises as well as demands for land reforms and hue and cry against
large-scale land acquisition. However, ‘land’ being an asset for landowners,
and ‘estate’ or ‘property’ as a resource for the State have evolved several con-
tours of meanings, which are not a concern of the LGAF. Thus, poverty allevi-
ation and institutional mechanisms are stressed upon (neoliberal features) but
not the agenda of land redistribution, changes in land use, concerns of land
dependents, and just land markets that the ‘land question’ aims to address.
Earlier land records were used for revenue purposes;15 these increasingly
have given way to three needs: availability of modernisation of land records
(computerisation and digitisation); adoption of a conclusive land titling sys-
tem; and modes and scale of land acquisition in neoliberal India. The land
record system is a state-specific mechanism, while the land acquisition is a
concurrent responsibility – the union and states in India. Not many states
have been able to update land records based on the survey and settlement
process because of many technological reasons. With increasing demands for
land and consequent land acquisition, availability of land and identification
of landownership become difficult with outdated land records. Moreover, a
conclusive land titling system with outdated land records and redistribution
of land under land reforms are not possible as they go against increasing
demand for land for private entities, broadly for industrial development and
urbanisation. Thus, the land question is larger than the land administration
system, LGAF, and land acquisition–related issues, as the term gives equal
weight to social and legislative ideas and expressions.

The land question and neoliberal India

The decade of the 2010s has witnessed several collective actions or upris-
ings in different parts of the country, raising issues of ‘land’ by a variety
 Introduction 7
of communities, such as farmers, forest dwellers, and pastoral communi-
ties, for recognition of rights and for state support, communities like Jat
and Patel, asking for reservations in government jobs (implying/enunciat-
ing a need for access to equitable livelihood opportunities) and educational
institutions. These actions across India signify economic and socio-political
dynamics revolving around land – some landed communities do not wish
to have their land acquired, some wish to make land more productive and
sustainable, while those who are already alienated from the land ask for
government jobs.
The land question, linked to land governance and land acquisition,16 is
at the heart of different collective actions or upsurges in independent India
which have addressed different land issues. For example, Tebhaga and Tel-
angana during the late 1940s advanced the agenda of tenancy reforms, and
the Naxalbari uprising in the late 1960s put forward an agenda of land
reforms and cultivation rights of peasants and landless people. The Nandi-
gram and Singur protests in 2007 onwards fought against coercive land
acquisition by the state government for industrial purposes, and later land
conflicts in Chhattisgarh and Jharkhand signify struggle against land grab,
land acquisition, and change of land use (forest land) for mining purposes.
The land question thus symbolises the nature of association with land –
agrarian relations, shift in economy – agrarian to industrial, as space and
urban/regional planning, change in perspective about land use as a resource
for economy, that is, from land as social identity to commodity, and per-
spective towards development of the country, which tilts towards economic
growth rather than equitable and sustainable development. When the col-
lective actions or uprisings are recognised as attempts to alter socio-political
and economic relations, the land question acquires a much wider landscape,
a landscape that captures multiple dimensions through different voices
(social actors and organisations) on dynamics of social and developmental
processes, legal regime and regulations, judicial interpretations, and role of
diverse institutions engaged in planning and implementation of land policies
in neoliberal India.
In the discourse on the land question in neoliberal India, how people
relate with ‘land’, how the Legislative turns into political agenda, how
the Judiciary arbitrates, role/s of the State, and how the existing land gov-
ernance system responds – these issues occupy centre stage. This volume
explores Chatterjee’s (2008: 56) idea of passive revolution:

The characteristic features of the passive revolution in India were the

relative autonomy of the state as a whole from the bourgeoisie and the
landed elites; the supervision of the state by an elected political lead-
ership; a permanent bureaucracy and an independent judiciary; the
negotiation of class interests through a multi-party electoral system; a
protectionist regime discouraging the entry of foreign capital and pro-
moting import substitution; the leading role of the state sector in heavy
industry, infrastructure, . . . relatively greater influence of industrial
8  Varsha Bhagat-Ganguly
capitalists over the central government and that of the landed elites on
the state governments.

In this context, it is necessary to understand that how people have related

to and whether having knowledge of or have expressed concept, approach,
strategy, mandates, functioning and implementation and monitoring mecha-
nism of the existing land governance system, and solutions to newer prob-
lems of ‘land’. This is an attempt to understand how ‘civil society’ and
‘political society’ (Chatterjee 2008) interact with each other for different
aspects of ‘land’.

Neoliberalism as an ideology, governance, and policy

To expand the discourse on the land question and neoliberalism as an ideol-
ogy, governance, and policy, a few trends/illustrations are shared here based
on the ‘new sociology of governance’ – who organises the core ideas and
strategies; how the core ideas and strategies get organised into fairly sim-
ple truth-claims that encourage people to act in certain ways; how and by
whom the ideas are operationalised; and which are the agencies (including
the State) that further the ideology supported through governance; and role
of elites in furthering the ideas/dictating political objectives.
Rose (1999: 16) looks at governance in the liberalised era and describes
its characteristics – a useful substitute and analogue for regulation, admin-
istration, management, and the like. Governance is normative as well as
descriptive – it could be good17 or bad. He refers to the ‘new sociology of
governance’ that tries to characterise the pattern or structure that emerges
from the interaction of a range of political actors. Referring to strategies,
good governance implies to disperse power relations among the whole com-
plex of public service, judicial system, and independent auditors of public
finances, coupled with respect for the law, human rights, pluralism, and a
free press. The ‘governmentality’:18

Sees continual attempts to define and redefine which aspects of govern-

ment are within the concept of the State and which are not, what is
and what is not political, what is and what is not public, private and
so forth.
(op. cit.)

The elites are believed to be codifiers and advocates of neoliberal govern-

mentality, which is rooted in entrepreneurial values such as competitiveness,
self-interest, and decentralisation. It celebrates individual empowerment
and the devolution of central state power to smaller, localised units (Steger
and Roy 2010: 12; Das 2015). In this way of functioning, the State pursues
profits in the name of developmentalism (or politics of developmentalism)
rather than traditional lines of pursuing the public good by enhancing civil
 Introduction 9
society and social justice. Most bureaucrats choose to develop entrepreneur-
ial identities – where they see themselves as self-interested actors responsible
to the market and contributing to the monetary success of slimmed-down
state ‘enterprises’ (ibid.); a very few consider themselves as public servants
and guardians of a qualitatively defined ‘public good’. This behaviour of
public servants is mostly hailed by elites, including political leaders, in the
name of developmentalism. Regarding land, capital/finance from the mar-
ket in the name of public-private-partnership (PPP) is stressed upon as a
main strategy. They promote employment of technology as a solution to
existing problems, which are taken from the world of business and com-
merce, and set quantitative targets and outcomes as indicators of efficiency.
This model mostly leads to shrinking space of political governance (popu-
larly phrased as ‘best-practice governance’), the introduction of ‘rational
choice’ models that internalise and thus normalise market-oriented behav-
iour. Thus, a shift – citizen turning into an ‘idealised consumer’ vis-à-vis the
land question, especially how one related to land and its use, reveals that
use of technology and service delivery–related solutions are promoted by
the Executive. The NLRMP (National Land Record Modernisation Pro-
gramme), launched in 2008, and introducing the Land Titling Bill, 2008,
and Land Titling Bill, 2011, in the parliament are good examples of this
paradigm. In this initiative, land records are reduced to the purely economic
and transactional – providing services such as availability of land records
online, mutation entries done digitally, etc. The entire process of digitising
land records ignores socio-historical aspects, and the longstanding problem
of wide gaps among textual, spatial, and actual land records. Citizens as
consumers are happy with the service delivery through technology, which
itself is indicative of selective elites availing benefits; not every citizen has
access to the internet nor has adequate knowledge and skills for using such
digital technology.
The Legislative studies examples of other countries and plans to execute
them in India, but this largely turns out to be a crude attempt to define
and introduce ‘corporate governance’ (Bijoy 2008) since PPP (public-private
partnership) is given utmost importance. Enacting and creation of SEZs (spe-
cial economic zones) is one of the prime examples of a neoliberal agenda,
that is, urged for improved infrastructure, establishing industrial and com-
mercial units/facilities, and belief that would generate jobs and growth of
allied industries/businesses. The Indian government enacted a law – Special
Economic Zone, 2005 – and aimed to create 500 SEZs for exports and
attracting forest investment, under a broader agenda of economic growth.
As per the report of the Department of Commerce, Government of India
(2015), approximately 491 SEZs have been formally approved, notified
SEZs are 352, in-principle approvals are 33, and operation SEZs are 196,
with 3,864 approved units in India covering 51,055.73 hectares of land.
‘The total area (including IP approvals) covered by SEZs is 0.058 percent
of total land area and 0.317 percent of agricultural land’ (Parwaz 2016:
10  Varsha Bhagat-Ganguly
139). The recent announcement to revamp SEZs to house a wide range of
companies (Suneja 26 May 2019) is an indicator of determinedly boosting
entrepreneurial identity.
Chakravorty (2016: 54) talks about ‘taking state’ and ‘giving state’ in the
context of land. The ‘giving state’ redistributed under land reforms measures;
the prime objective of ‘taking state’ was to enhance public welfare through
various development projects. The problem was that the population that
benefitted from the development project was fundamentally different from
the population that was displaced. As land prices increase with better infra-
structure and development, peculiar consumerism is encouraged through
the process of urbanism and selected spatial development. The Legislative
and the Judiciary seem to associate themselves with such developmentalism,
which is reflected in their attitude and behaviour, in the form of increased
efficiency of land markets, evolving regularising norms, and improving land
administration (The Draft Model Guidelines for Urban Land Policy 2007:
2). The Indian government focused on urban development – as a machine
for economic growth of the country – and initiated various measures for
expansion of the land market: launching of a land-pooling policy/volun-
tary land-pooling scheme as an alternative to forced land acquisition, and
reclassification of zones and land use wherein the State’s role as a facilitator
for private entities became obvious. Such initiatives by the State are a mix –
they are service delivery as well as containing ‘rights’19 component (Bhagat-
Ganguly 2016: 38–39).
The New Economic Policy (NEP) has been a front-runner in changing the
policy regime20 on many counts, especially liberalisation of land. Unfolding
policy regime is also unfolding of politics of developmentalism (Solomon
2008) and, when land is seen as a ‘conceptual entry’, it helps reveal a subtle,
often stealth-like and quiet but extensive form of political consciousness21
and viewed from the lenses of social identity, status, and wealth, reveals
extensive forms of socio-political consciousness and how this consciousness
influences policy regime (Bhagat-Ganguly 2016).
The reviews of three policy documents – Five Year Plans (pre- and post-
1990); Draft Urban Land Policy, 2007; and Draft National Land Reforms
Policy, 201322 – reveal three important points related to developmentalism
in neoliberal India: (1) the gap between what policies aimed at and what are
anticipated and unanticipated outcomes, especially in the context of con-
trolling land values/markets and ‘housing for all’ – overtly for economically
weaker sections, and covertly for clearing of slums, supporting real estate,
land markets, and fulfilling aspirations of urban elites; (2) land rights of
different stakeholders in urban areas; mainly how and why four groups –
metro elite, land developers, retailers of ‘branded’ products, and interna-
tional donors (Solomon 2008: 720) – have become influential in making
the cities competitive on land use; and (3) understanding political economy
of land policy, that is, how the given policy and government programmes/
schemes bring in private players in order to attract investment and how the
 Introduction 11
language of development is being appropriated to facilitate private entities.
Mostly the citizenry knows very little about land use, how valuation is done,
the impact of land pooling, whether these programmes have legal backing
and thus are not legally binding to the government or the landholders/land
aspirants, and whether budget allocations are justified when cost-benefit
ratio analysis is undertaken.
Tenancy reforms/tenurial rights are recognised as an important policy-
making area associated with the land question, which is treated indepen-
dently from land reforms23 in the neoliberal era. Since the 1950s, land
redistribution across all states in India is skewed in favour of influencing
people;24 now land use, records of rights (RoRs), and land titling are cru-
cial for economic growth. Until now, tenancy is not legalised in most of
the states in India; West Bengal with bargadar (land tenant, share cropper)
system is one of the exceptions. The Model Agricultural Land Leasing Act,
2016 (MALLA) has not seen the light of day. Absence of a sound institu-
tional framework facilitating land leasing had been viewed as a major obsta-
cle for private investment in agriculture, resulting in poor productivity in the
neoliberal era; insecure land tenurial rights that resulted in tenants becom-
ing subject to multiple forms of exploitation by money lenders, landown-
ers, and traders of agricultural commodities is considered less important.25
Although tenancy laws differed from state to state, they were generally
found to be very restrictive in the sense that they had almost prohibited
agricultural tenancy. The tenancy arrangements are primarily informal in
nature, leaving tenants insecure (Mani 2016). A recent trend of reverse ten-
ancy, which refers to small landholders leasing their land to big landholders,
also is an important issue of land policy in the context of social structure,
political economy, and agriculture and allied activities increasingly becom-
ing loss-making ventures, especially for small and marginal landholders.
Therefore, small and marginal landholders are forced to lease-in land to
make up for the loss in the crop production sector. Large numbers of small
and marginal landholders belong to Scheduled Castes26 (SCs) and Scheduled
Tribes (STs).27 One of the schools of thought on tenancy argues that forced
tenancy of wage labour and peasants is a variant of ‘hunger leasing’,28 and
such tenants are subjected to multiple forms of exploitation by money lend-
ers, landowners, and traders of agricultural commodities (Mohanakumar
2014); newer culture is emerging in the relations between these stakehold-
ers. The Model Agricultural Land Leasing Act, 2016 (MALLA) is silent on
reverse tenancy and secured tenancy rights of land dependents29 through
legalised leasing, and continues to be an abandoned group in policy making.

Organisation of the volume

The volume is organised on two themes: (1) socio-legal and policy perspec-
tive on ‘land’, and legal initiatives (programmatic and regulatory mecha-
nism); and (2) evolving jurisprudence on the land question. Through these
12  Varsha Bhagat-Ganguly
themes, the volume expands discourse on the land question, focusing on
socio-legal and judicial interpretations – what happened in neoliberal India?
How did neoliberal India pose herself vis-à-vis other continents/countries30
related to the land question – whether the Indian government learnt and
adopted some global best practices regarding land governance, land records,
and land titling, to name a few, or found indigenous technology-based,
all-encompassing/holistic solutions to the chronic and inherently complex
problems of the multi-faceted land question? What has happened as the
role, behaviour, and attitude of the State changed – from a welfare state
ensuring the larger common good to facilitating private entities and market
forces? How the citizenry – a mix of consumers and proponents of right to
land – have received and responded to different land policies shaped with
neoliberal ideology? Does this imply a higher degree of conflict, disposses-
sion, and violence? Whether newer institutional mechanisms, procedural
and legal modifications, newer solutions based on technological advance-
ment, and evolution of polity have been tried out, to ensure the larger com-
mon good? Whether the character of the Judiciary changed or remained the
same or shifted to judicial activism to judicial adventurism is strengthened.
Could the State and the Judiciary take cognisance of how the land ques-
tion and rights to land are being articulated from gender, class, caste, and
regional perspectives, and from the perspective of marginalisation/depriva-
tion, and how did they respond to the concerns, demands and aspirations
of these cross-cutting, inter-twined perspectives while ensuring development
of the country?

Socio-legal perspectives on ‘land’ and legal initiatives

There has always been a debate whether land in India was collectively owned
by the community or whether individual ownership was the most common
form of landed property. The Indian peasant has for centuries enjoyed the
right of permanent and hereditary occupancy of land. This was assured by
the State and recognised by the superior landlords. . . . Apparently, own-
ing land was possibly not in itself a very meaningful thing. Having a right
or claim on a share of its produce was the crucial issue. Land came with a
hierarchy and range of rights and obligations. It was a time when the central
question revolved around rights on land rather than rights to land. In this
respect, therefore, the debate today seems to have altered irretrievably.
(Singh 2016: xiv)

This theme narrates the politics of land and rights to land in neoliberal India
from the lenses of landholders and land dependents on an individual basis
and from different social group/communities for public/government land.
The land question with different components creates multiple axes on which
debates on land laws (broadly legal regime and reforms); justiciability of laws
 Introduction 13
of social control; the skill set or know-how of technicality of law; process of
policy or law making and interests of the State and elites; developmentalism
and politics of developmentalism; technology and technocracy adopted by
the Legislative, the Executive, and the Judiciary; how access to information
ensures rights to land; and some similar concerns are expanding.
Several instances of people’s protests against development projects fol-
lowed by legal cases in the High Courts and the Supreme Court substantiate
the point in case. Indian government started using land as a resource and by
expanding land markets, especially in the regime of property rights – private
landownership. Private property is an essential concept in market-driven
(Gangopadhyaya 2012), rule of law economics; land value depends on who
buys/acquires the land or who grabs and appropriates land.31 In this rule
of land economics, small-landholder, socio-economically backward, single
women and such vulnerable groups/communities face a dual-edged sword.
These groups may get a better price for the land compared with the compen-
sation offered by the government, mostly against loss of their asset and tradi-
tional source of livelihood. They compare returns from agricultural activity
and may find selling of land comparatively lucrative and an opportunity to
explore a new livelihood activity. The private entity that receives land from
the government or buys the land, in most cases, retains its advantageous
status, as the land economics work in its favour – with asset building that
is productive, infrastructure facilities, long-term business opportunities, and
tax revenue–related other benefits. This is applicable to SEZs, establish-
ment of industrial estates, and infrastructure building or other development
projects, to name a few; on the other hand, economics-oriented cost-benefit
analysis undermines socio-cultural,32 vulnerability,33 and relative depriva-
tion34 framework in a neoliberal regime.
Five chapters are presented under this theme, covering different types of
land issues (of urban areas, forest land, and cultivable land), in different
parts of India.
Chapter 2 by Amlanjyoti Goswami, Deepika Jha, and Kaye Lushing-
ton35 examines some of the key policy and legal developments in India on
establishing conclusive land tilting legislation, at the central and state lev-
els, within the scope of India’s Constitutional Federalism. It explains that
implementing a Torrens-like system of land records in the country requires a
shift in the Common Law system, from presumptive deeds-based systems to
conclusive title-based regimes. Therefore, practical realities of land record
systems and institutions need to be mapped out. As against neoliberal
impulse – to reduce land records to the purely economic and transactional,
and the focus on titling and ownership, excluding tenure aspects – the
chapter discusses alternatives. The chapter examines whether meaningful
incremental efforts to set up more comprehensive and accurate land records
systems and processes would be better than the present top-down measures
of title legislation.
14  Varsha Bhagat-Ganguly
Ray Sharat Prasad, a practicing lawyer, begins Chapter 3 with a shift in
the governance model in neoliberal India. The State expects to achieve the
twin objectives of sustainable economic growth and fulfilment of the socio-
economic aspirations of all such actors, including those of the urban poor,
through the trickle-down effect. The chapter looks at various interventions
and initiatives taken by the State and examines whether they have had the
desired trickle-down effect and fulfilment of the socio-economic aspirations
of all, in the complete absence of the State’s redistributive role, or whether
achieving the objectives will remain a myth.
In Chapter 4, C.R. Bijoy, through a combination of academic and social
action, explores how Forest Rights Act, 2006 (FRA) has provided an oppor-
tunity for the right to forest resources through evolving forest governance.
After providing historical background of forest governance to enactment
of the FRA36, the chapter narrates how this law pertinently pioneered the
introduction of a non-centralised democratic land and natural resource gov-
ernance, by the transfer of power directly to the communities at the level
of habitation, perhaps an unprecedented model never attempted anywhere
in the world. Yet, while implementing this law, the administrative arms
continue to resist through blatant acts of commissions and omissions over
a decade. The chapter captures lessons drawn for the emergence of another
paradigm of land and resource governance as if people matter.
Chapter 5 by Seema Kulkarni and Pallavi Harshe studies the main fea-
tures of the Model Land Lease Act, 2016, a solution proposed by the NITI
Aayog, aiming to prohibit the formalising of land leases across the country.
It then critically examines the Land Lease Bill introduced by the Govern-
ment of Maharashtra in 2017 through an exploratory study of lease agree-
ments and practices in the Osmanabad district of Maharashtra State. After
the mention of salient provisions of the bill in the neoliberal state, the chap-
ter delves into whether it holds the potential for providing a security of
tenure for the landless and women’s collectives. The chapter concludes that,
by and large, the Land Lease Bill and the Model Act, on which it is based, is
silent on the rights of the tenant, and therefore in its present form does not
address the concerns of these groups.
Sonali Ghosh and Chandra Bhushan Kumar, belonging to the civil
services – Forest and Administrative Services, respectively – have authored
Chapter 6. The chapter begins with how the Northeast region (NER) of
India has been an area of complex intrigue for natural resource conserva-
tion planners and policy makers in post-independence. The authors coin
the term ‘hybrid neoliberalism’ – how neoliberalism and conservation have
merged in policy and practice through devolved initiatives. This chapter
elaborates the bio-cultural narrative of the NER and its neoliberal connect:
first, by discussing multiple meanings of natural resource conservation, as
absence of its appreciation affects the process of land acquisition in the
pre- and post-neoliberal eras; second, by analysing the question of pub-
lic purposes in the overall discourse of development of the region and to
 Introduction 15
examine whether neoliberal thinking has introduced newer shades of devel-
opment; and third, by suggesting a pathway for future engagement for natu-
ral resource conservation.

Evolving jurisprudence of the land question

Land acquisition being in the concurrent list, the Central Government is
able to acquire land for different development projects under the colonial
law Land Acquisition Act, 1894 (LAA) and now The Rights to Fair Com-
pensation and Transparency in Rehabilitation and Resettlement Act, 2013
(RFCTLARRA). Different ministries and authorities, such as the National
Highways Authority of India, National Highways & Infrastructure Develop-
ment Company Ltd., and State Public Works Departments, are empowered
with new institutional mechanisms, such as the launching of the Bhoomi
Rashi37 portal for national highway (NH) projects. The process starts with
the appointment of a revenue functionary of the State Government as Com-
petent Authority for Land Acquisition (CALA) for each NH project. It ends
with the taking of physical possession of the land by the implementing
authority and disbursal of compensation to each affected/interested party.
Land acquisition is linked with a few critical processes related to land –
change in land use, land grab, land value booming, or expansion of land
markets. The discourse on land acquisition mainly revolves around use of
‘eminent domain’ and ‘public purpose’ for acquiring land by the state; dis-
placement, R&R (rehabilitation and resettlement) and compensation; relo-
cation cost and solatium; procedure for acquiring land; and land pooling
as an alternative to land acquisition. Several protests, social conflicts,38 and
legal cases39 against acquisition of land as well as for higher compensa-
tion have taken place. However, the Judiciary and its interpretations largely
focus on the term ‘estate’, which has resulted in substantial variations in
judicial orders/verdicts – sometimes the state-specific, sometimes instance/
project specific, and sometime community/customary rights.
Some judgments of the Supreme Court have become more debatable
in the neoliberal era, which show greater importance and acceptance of
technocracy for economic growth of the country; the critiques focus on
social justice, equitable resource distribution, and resource rights of dif-
ferent stakeholders, for instance, Narmada Bachao Andolan40 and others
who fought against the building of a dam and R&R of the project affected
population – the Sardar Sarovar Project and Narmada Sagar Project
that affected four states – Gujarat, Madhya Pradesh, Maharashtra, and
Rajasthan. The judgment of the Supreme Court on Nirma Cement Plant,41
with 1.91 MTPA (million tonne per annum) capacity at Mahuva Taluka,
Gujarat State, is also an example of resource rights (Bhagat-Ganguly 2016).
Both verdicts hailed the importance of economic growth – through the
building of large dams and the cement industry, respectively. Another set
of judgments has been hailed by civil actors and critiqued by the industrial
16  Varsha Bhagat-Ganguly
lobby that has reinstated the importance of democratic institutions and pro-
cesses, for instance, the Niyamgiri judgment and Singur verdict.
Chapter 7 by Rita Sinha, a senior bureaucrat, who was instrumental in
introducing NLRMP as the secretary of the Department of Land Resources
(DoLR), delves into the historic process of land acquisition – from colo-
nial regulation introduced in 1824 to the RFCTLARRA, 2013. The chapter
traces the origin of land acquisition laws and captures the manifestations
and behaviour of the State by looking at land acquisition in India through
the old act – the LAA, 1894 and newly enacted law, RFCTLARRA. It focuses
on two issues that have risen to prominence in the neoliberal era: (1) was
there a justification for the historical continuity of colonial land acquisition
laws effectively into the neoliberal era, and (2) is the RFCTLARRA in tune
with India’s neoliberal policies or is it a step backwards towards putting
restraints on government from making land available to private enterprises?
By examining relevant sections of RFCTLARRA to understand the neo-
liberal state’s agenda of displacement, R&R, compensation, and solatium,
through the existing land administration system, the chapter concludes that
RFCTLARRA has retained overarching powers of the State to enable it
to continue accruing land for private companies to achieve its neoliberal
agenda.
Malabika Pal, an academic, compares some landmark judgments of the
United States and India to understand use of eminent domain, linkages between
economic growth and land acquisition, and public use and just compensation
in Chapter 8. This chapter shows the absence of constitutional interpretation
of two terms – ‘public use’ and ‘compensation’, and interpretation by the
Legislative and Judiciary in both countries. To capture neoliberal design of
development, the chapter scrutinizes the reasoning in landmark judgments
like Kelo and Singur and argues about ‘just compensation’ using the standard
proposed by Frank Michelman – to include demoralisation costs – that helps
to incorporate considerations of justice along with efficiency.
In Chapter 9, Shiju Mazhuvanchery, an academic teaching law, looks at
land as one of environmental media, since land regulation plays an impor-
tant role in environmental protection. Though neoliberal policies have
permeated the even field of environmental regulation, land regulation is
considered as the weakest link in modern environmental law. The chapter
delves into the discourse on environmentalism and whether it is still viewed
as an opposition to the injustices of capitalism and how the land question
has been viewed in the given model of capitalism and sustainable develop-
ment. As market-based instruments and cost-benefit analysis are important
components of present-day environmental regulation, part of the neoliberal
precepts, this chapter discusses land regulation as a means for environmen-
tal protection in India. The chapter analyses various statutes and case law in
order to understand whether there exist linkages between various environ-
ment and land-related regulations and how environmental regulations have
addressed land issues in neoliberal India.
 Introduction 17
The contributions show that the State, being a ‘taking’ and ‘giving’ State,
has explored newer options for using land as a resource for economic
growth, with neoliberal precept; however, there seems little progress on
comprehensive solutions to the complex, long-standing problems related to
the land question. The agenda of social justice or broadly called concerns
for marginalised communities, concerns for development project–affected
persons, are duly addressed through policy and legal initiatives, but the very
thin existence of an institutional mechanism makes it difficult to achieve
success with the land-related agenda. Every new initiative of the State on
the land question has not been successful nor has significant headway been
made despite huge budgetary provisions; this situation in a way leads us to
think more deeply about the neoliberal precept and its limitations. Exist-
ing legal and policy frameworks may lead to limited success on the land
question, as socio-historical factors ask for ‘suitable’ initiative, not entrepre-
neurial every time. Not every people’s struggle is able to stall development
projects; either the Executive’s interventions or judicial interpretations have
played a role in support of the neoliberal state. This indicates a need for
deeper study with regard to state-centric theoretic concerns in the context
of socio-political-economic and human geography – how complex restruc-
turing of the policy-making process takes place in the face of ‘globalisation’
and ‘localisation’ (Peck 2001).

Notes
1 Levien (2012: 933) refers to the land question as ‘agrarian questions of labor and
capital are, consequently, now rejoined in “the land question” ’.
2 The processes of liberalisation, privatisation, and globalisation (LPG) had begun
worldwide before the 1990s; they became official post-1991 in India when a new
economic policy was enforced. The LPG is also known as the D-L-P formula of
neoliberal policies: (1) deregulation (of the economy), (2) liberalisation (of trade
and industry), and (3) privatisation (of State-owned enterprises) (Steger and Roy
2010: 14), with a market-friendly political agenda or ‘paradigm’2 (free-market,
worldwide flow of goods; availability of services and labour; idealised images of
a consumerist, foreign investment; and facilitating decision making by the ruling
political party) that rose to prominence in the 1980s at the global level and in the
1990s in India (ibid.: 10).
3 Related policy measures include massive tax cuts for domestic and foreign cor-
porations willing to invest in designated economic zones; removal of controls
on global financial and trade flows; regional and global integration of national
economies; downsizing of government and reduction of social services and wel-
fare programmes; replacing welfare with ‘workfare’; lower interest rates by
banks to keep inflation in check; and the creation of new political institutions,
think tanks, and practices designed to reproduce the neoliberal paradigm (Steger
and Roy 2010).
4 In the Constitutive Assembly Debates (1947–51), land rights focusing mainly on
ownership were discussed at length and depth among representatives from dif-
ferent parts of the country. As part of prevalent socialist development paradigm,
they also stressed a need for agrarian reforms and consequently land reforms
focusing on tenancy reforms for poverty alleviation and social justice. Following
18  Varsha Bhagat-Ganguly
this, different land laws were enacted or existing laws were amended as part of
land reforms introduced in the 1950s and 1960s.
5 The Legislature made void laws offending fundamental rights, and they were
included in Schedule Nine, and later, the list was extended from time to time
(Salian 2002: 234).
6 Article 31-B declared that none of the acts or regulations specified in the Ninth
Schedule nor any of the provisions thereof shall be deemed to be void on the
ground that they are inconsistent with Part III, notwithstanding any judgments,
decree, or order of any court or tribunal to the contrary. By further amendment,
the list was extended (op. cit.).
7 Land as a critical resource to expedite the development of India was promoted in
the 1970s and 1980s through adoption of ‘technocracy’ or simply said ‘techno-
managerial approach’ by the late Prime Ministers Indira and Rajiv Gandhi,
respectively, which prepared grounds for globalisation, privatisations, and liber-
alisation (LPG). This approach became a norm for development of the country.
The social processes and aspirations which were the driving forces for politi-
cal agenda and action were gradually replaced by technological and managerial
solutions; consequently, the focus on social justice and equitable distribution of
land was subdued post-1991.
8 Officially, The Forest Dwellers and Other Traditional Forest Dwelling Commu-
nities (Recognition of Rights) Act, 2006.
9 This Act legalises land grabbing or change in land use by private entities and
government authorities.
10 Orissa Mining Corporation vs. Union of India and Ors. [2013] 6 SCR 881, writ
petition (civil) no. 180 of 2011, judgment on 18 April 2013.
11 Kedarnath Yadav vs State of West Bengal & Ors. Civil Appeal No. 8438 of
2016 (arising out of SLP (C) Np. 8463 of 2008), dated 18 January 2008.
12 Popularly called tribals, officially – the Scheduled Tribes.
13 Land rights incorporates land ownership, access to land, and control and man-
agement of land. For more details, see Bhagat-Ganguly 2016.
14 Available at www.fao.org/in-action/herramienta-administracion-tierras/intro
duction/concept-land-administration/en/ Accessed on 9 December 2018.
15 In most states of India, land revenue collection stopped in the late 1980s or early
1990s; a few states have continued to collect a very negligible amount of land
revenue – not more than a few hundred thousand per annum.
16 Chakravorty (2013) and Sathe (2017) deal with land acquisition and the price
of land. They argue that land acquisition has not always been opposed as some
farmers are willing to sell land if a just price is offered. Chakravorty (2016) pro-
vides details about four types of land markets and links them with RFCTLARRA
and how it will affect the land market. This volume recognises these writings as
important contributions to expanding discourse on the land question in neolib-
eral India.
17 The World Bank defines ‘good governance’ as ‘the manner in which power is
exercised in the management of a country’s economic and social resources for
development’ (quoted in IFAD 1999: 1).
18 This concept was originally introduced by Michel Foucault (1969) and is applied
to elaborate neoliberal governmentality; governance and governmentality have
concern with the State and with ‘Stateness’ as their common denominator. Fou-
cault touches upon the core of the relationship between pedagogy and politics,
and a relational conception of society and its institutions connecting the political
and the subjective realms (Amos 2010: 3).
19 Any right is considered an aspiration of citizens, a vision of good society and
how it comes to play during interaction among different stakeholders. Any right
 Introduction 19
is an enabling factor for the well-being of citizens. Though any ‘right’ is primar-
ily projected as a claim that focuses on ‘need/s’, it could be a means to access and
achieve justice.
20 Public policy is an instrument that is used for achieving the development goals of
the country; it is a regime that marks a triangle – aspirations of civil society in the
form of public discourse that is reflected through a political agenda, usually of
the ruling political party, and facilitated by administrative mechanisms – struc-
ture and procedures.
21 Solomon (2008: 720) refers to Massey (2005) in the context of spaces of politics
revealed via ethnographic explorations of land economy and institutions. I refer
to Chatterjee (2017: 9), ‘something new in the way governmental authorities
began to negotiate with population group’. In the changed scenario, a political
fixer gets things done at a government office on behalf of a local community.
For the political society, such a phenomenon is novel, and they need to learn to
articulate self-interest from the perspective of right, which also ensures a larger
common good.
22 Though the policies are not implemented, they are mentioned here as indicative
of entrepreneurial ethos of the then governments. Such initiative/s could be taken
up by the ruling party as and when found to be promising, may or may not be in
modified form.
23 Repeal of the Urban Land Ceiling Regulation Act, 1976 (ULCRA) was success-
fully implemented in the neoliberal era, as suggested by the National Commis-
sion on Urbanisation in pre-neoliberal India.
24 At the time of independence, there were three main systems of land tenure,
namely zamindari, ryotwari, and mahalwari. The zamindari system covered
about 57 percent of the total privately owned agricultural land, followed by
the ryotwari system (38 percent) and mahalwari system (5 percent), respectively
(quoted in NITI Aayog 2016: 38).
25 See Terms of Reference of the expert Committee on Land Leasing, number (iii).
The other terms of reference are: (1) to review the existing agricultural tenancy
laws of states, including hilly states and scheduled areas; (2) to examine the dis-
tinctive features of land system in erstwhile zamindari, ryotwari, and mahalwari
areas; (3) to suggest appropriate amendments, keeping in view the need to legal-
ise and liberalise land leasing for much-needed agricultural efficiency, equity,
occupational diversification, and rapid rural transformation; (4) to prepare a
model agricultural land-leasing act in consultation with states; and (5) any other
related matter.
26 As per the Agriculture Census (2015–16), of the total of 36 states and union
territories (UTs), marginal landholding among the SCs living in six states had
no landholding and six states had negligible holding (fewer than 500 units/hec-
tare). Of the rest, three states reported fewer than 3,000 SC farmers, four states
reported fewer than 100,000 SC landholders, and 14 states had landholders
ranging from 100,001 to 1,000,000. Only three states had landholders in excess
of a million: Bihar (1,823,000 landholders), West Bengal (1,569,000 landhold-
ers), and Uttar Pradesh (3,601,000 landholders). Among SC small landholders,
seven states had no landholding and six states had negligible holding (fewer than
500 units/hectare). Of the rest, three states reported fewer than 3,000 SC farm-
ers, four states reported fewer than 100,000 SC landholders, and nine states had
landholders ranging from 100,001 to 1,000,000. A total of nine states reported
landholders between 1,000,000 and 3,000,000.
27 As per the Agriculture Census (2015–16), of a total of 36 states and UTs, mar-
ginal landholding among the STs living in six states had no landholding and six
states had negligible holding (fewer than 500 units/hectare). Of the rest, four
20  Varsha Bhagat-Ganguly
states reported fewer than 1,000 ST farmers, and four states reported fewer than
100,000 ST landholders. Nine states had landholders ranging from 100,001
to 500,000, and five states had 500,001 to 1,000,000 ST landholders. Among
ST small landholders, six state STs did not have landholding, and two states
had negligible holding (fewer than 500 units/hectare). Of the rest, three states
reported fewer than 3,000 ST farmers, four states reported fewer than 100,000
STs landholders, and nine states had landholders ranging from 100,001 to
1,000,000. A total of nine states reported landholders between 1,000,000 and
3,000,000, and three states had ST small landholders ranging between 300,001
to 500,000.
28 The author (2014: 6) discusses hunger leasing with reference to usury capital –
characterised as a pre-capitalistic form of surplus appropriation, and petty pro-
ducers and small peasants are major victims of usury capital.
29 The ‘land dependents’ is a construct; the term is expanded to include dependents
on private land as well as common lands. It incorporates tenants, sharecroppers,
those who have taken land on lease for their livelihood, agriculture labourers,
pastoralists, workers in the mining sector, persons engaged in fishing, and unor-
ganised labour in different industries that are engaged in land-based activities,
for example, brick making and construction (Bhagat-Ganguly 2016: 6).
30 For example, the Philippines, Brazil, and China for expansion of the land mar-
ket; Uganada for land reforms; and Australia and the United Kingdom for land
titling systems.
31 When the government acquires land for a development project, compensation
for the land is paid as per the prescribed value as if the land sale had taken place
between two private parties; however, the value of the land may be much more
than what the government pays. In the event the land transaction cannot be legal
because of the absence of land titling or land records, then there is a higher pos-
sibility of appropriation of land or land grab.
32 Loss of land conceptualised as ‘risk’ of various types. In the context of displace-
ment, the IRR (impoverishment risks, risk management, and reconstruction)
model developed by Michael Cernea (1990) is widely acceptable, which men-
tions eight risks – landlessness; joblessness; homelessness; marginalisation; food
insecurity; increased morbidity and mortality; loss of access to common property
and services; and social disarticulation. Of them, loss of community ties resulting
in uprootedness and alienation on socio-cultural counts are of greater concern.
33 This is social (includes economic and political) vulnerability, which is different
from biophysical (referring to climatic) vulnerability. This framework is applied
in the broader context of structural inequality and social justice, risks, and need
arising for transformative social protection because of poverty, displacement and
deprivation, and loss of livelihood.
34 The relative deprivation framework is primarily a social psychology concept that
evolves in three stages – cognitive analysis based on comparison, appraisal in
terms of loss or gain, and disadvantages perceived as unfair and manifesting into
resentment and resistance – at individual as well as at group/community levels.
Social movement theory considers this framework relevant in terms of manifes-
tation of resentment or resistance that is inter-linked with mass mobilisation and
resource mobilisation, and also has a greater potential for turning into collective
action or protest (Fahey 2010; Pettigrew 2015).
35 The authors work with the Indian Institute of Human Settlements (IIHS), and
their views are personal. The chapter is based on the research studies conducted
by IIHS in different states of India.
36 Officially named the Scheduled Tribes and Other Forest Dwellers (Recognition
of Rights) Act, 2006.
 Introduction 21
37 Visit http://bhoomirashi.gov.in/WriteReadData/la.pdf for more information.
This is a portal developed by MoRTH (Ministry of Road, Transport and High-
ways) and NIC (National Informatics Centre), and comprises the entire revenue
data of the country – of upto 6.4 lakh villages, more than 900 notifications
issued for land acquisition, etc. Bhoomi Rashi portal has been instrumental in
reducing the time taken for approval and publication of notifications pertaining
to land acquisition.
38 As per the Land Conflict Watch Portal, a land conflict is defined as any situa-
tion that has conflicting demands or claims over the use or ownership of land,
and where the public is one of the contesting parties. These conflicts can also be
over naturally occurring land resources such as forest, underground water, fish
stock, etc. The conflict may arise as a result of development projects such as min-
ing, building infrastructure, industry, urban development schemes, conservation
schemes in protected areas, or because of land grab and encroachment.
On 6 March 2019, in 671 conflicts, a total of 7,470,306 people in 2,427,456
hectares are reported to be affected in India. www.landconflictwatch.org/
(Accessed on March 6, 2019).
39 As per a study conducted by the Centre for Policy Research, 1,269 cases were
involved in litigation under the Land Acquisition Act during 1947–2016, while
280 cases were decided under the LARR Act, 2013, for the period January 2014
to December 2016 in the Supreme Court of India (CPR 2017: 12).
40 Narmada Bachao Andolan vs. Union of India and Others [2000] 10 SCC 664,
judgment on 18 October 2000. The Supreme Court allowed an increase in
Sardar Sarovar Dam’s height and pari passu for R&R.
41 Khimjibhai Lalubhai Baraiya vs. Union of India SLP (C) No. (s) 15016, 32414,
and 32615 of 2010 at Gujarat High Court. The Supreme Court Order dated 18
March 2011, petition for Special leave to Appeal Civil No.9s) 14698/2010 (from
the judgment and Order dated 26 April 2010 in SCA No. 3477/2009 of High
Court of Gujarat).

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 Introduction 23
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gress in Human Geography, 25(3): 445–455. https://doi.org/10.1191/030913
201680191772
Pettigrew, Thomas F. 2015. ‘Samuel Stouffer and relative deprivation’, Social Psy-
chology Quarterly, 78(1): 7–24.
Rose Nikolas. 1999. Powers of freedom: reframing political thought. Cambridge:
Cambridge University Press.
Salian, Shushant. 2002. History of the removal of the fundamental right to property.
Working paper no. 0041, Centre for Civil Society, pp. 232–255. Retrieved from
https://ccs.in/sites/default/files/files/wp0041.pdf accessed on 5 March 2019.
Sathe, Dhanmanjiri. 2017. The political economy of land acquisition in India. Sin-
gapore: Palgrave Macmillan.
Sazzad, Parwaz. 2016. ‘A study on special economic zone implicated land acquisition
and utilisation’, International Journal of Development and Conflict, 6: 136–156.
Singh, Chetan. 2016. ‘Foreword’, in Bhagat-Ganguly Varsha (ed.), Land rights in
India: policies, movements and challenges (pp. xiii–xvii). London and New York:
Routledge.
Solomon, Benjamin. 2008, September. ‘Occupancy urbanism: radicalizing politics
and economy beyond policy and programs’, International Journal of Urban and
Regional Research, 32(3): 719–729. doi:10.1111/j.1468-2427.2008.00809.x
Steger, Manfred B. and Ravi K. Roy. 2010. Neoliberalism: a very short introduction.
Oxford: Oxford University Press.
Sud, Nikita. 2012. Liberalization, Hindu nationalization and the state. New Delhi:
Oxford University Press.
Suneja, Kritika. 2019, 26 May. ‘New SEZ policy bats for easy exits and flexibili-
ties in leases’, Economic Times. Retrieved from https://economictimes.indiatimes.
com/news/economy/policy/new-sez-policy-bats-for-easy-exits-and-flexibility-in-
leases/articleshow/69509265.cms?from=mdr accessed on 1 October 2019.
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Resources/LGAF_Manual_Oct_2013.pdf accessed on 24 March 2019.
Part 1

Socio-legal and policy

perspectives on ‘land’
2 Approaches and methods of
land title legislation in India Amlanjyoti Goswami, Deepika Jha, et al.Land title legislation in India

Far from reality or close to the

ground?
Amlanjyoti Goswami, Deepika Jha,
and Kaye Lushington1

The task of modernising land records has received renewed attention in

the past decade, building on earlier initiatives in pre-liberalised India. The
rationale for such efforts has been twofold. First is the need to increase
efficiency in land-based transactions, including in transitional situations of
land acquisition, rehabilitation, and resettlement; rural-urban spatial and
demographic changes; creating conditions for better urban planning as well
as for augmenting State revenues through registration of deeds that provide
evidence of transfer of property. Second is the more distributive goal of
ensuring better access to the common citizen, of an updated and digitised
land record that is real time and does not suffer from wear and tear inevita-
ble in paper-based systems. Such an updated record could then be used for
welfare schemes, subsidies, and other measures.
These recent measures mark a departure from the colonial era when land
revenue itself was the focus, and periodic and frequent updation through
the colonial administration was necessary to ensure accurate measurement,
crop record, and collection. With the shift from the largely agrarian context
and the decreasing significance of land revenue for the State’s finances, land
records too had fallen into disrepair and had become archaic. This was
sought to be addressed through measures to modernise record systems, from
the 1980s onwards. From around the first decade of this century, there have
been newer methods and goals articulated to bring about greater efficiency
in land-based transactions, centring on questions of ownership of land. The
greater salience of real estate in peri-urban and urban areas has also added
weight to such questions. In other words, while the legacies of the colonial
era (and still further back to Mughal times) persist in the structure of land
administration as well as land record formats, new attention to goals, such
as Torrens and title-based systems, call for fundamental shifts in the struc-
ture itself, which the system is currently unable to absorb or accommodate.
One of the most important shifts advocated is from the deeds-based pre-
sumptive system (predominant in Common Law countries) to a conclusive
title-based system (first attempted in Australia and now being advocated as
a model to follow). This therefore entails a quick overview of the structural
differences inherent in such shifts and the accompanying difficulties of doing
28  Amlanjyoti Goswami, Deepika Jha, et al.
so. In such light, the State’s modernising impulse of creating more accurate
digital land records needs to be distinguished from the State’s neoliberal
impulse of focusing on title legislation based on the Torrens system.
This chapter has three parts. It begins with describing the current legal
structure of maintaining land records in India, followed by a description
of the proposed conclusive titling system and the anticipated changes. The
second part of the chapter traces the policy shifts towards the conclusive
titling system at the national scale, and then via the legal and technological
initiatives at the state level. The third part details the challenges in achieving
conclusive titling, including legal, institutional, and technological aspects.

Presumptive title and a deeds-based registration system

India has a presumptive system of proving title. Its origin is located in colo-
nial era legacies, when the primary purpose of maintaining land records was
to collect revenue or property tax. The person mentioned in these records
was presumed to be the owner for the purpose of revenue collection, and
hence the title so conferred was incidental to revenue. The entry in the land
record is not conclusive proof that the person is the title-holder, and such
entries may be open to challenge by interested parties. Further, the registra-
tion of an instrument is only proof of the transaction (legal fact) having
taken place and does not stand as direct proof of ownership/title to a prop-
erty as it does not indicate that the parties entering into the specific transac-
tion are at the first place legally in a position to do so.
The Supreme Court also re-emphasises this position. In Suraj Bhan vs.
Financial Commissioner and others (2007 (6) SCC 186), the Supreme Court
held that

It is well settled that an entry in revenue records does not confer title on
a person whose name appears in the record of rights. It is settled law
that entries in the revenue records or Jamabandi2 have only ‘fiscal pur-
pose’ i.e. payment of land revenue and no ownership is conferred on the
basis of such entries. So far as the title to the properties is concerned, it
can only be decided by a competent Civil Court.

The Indian Registration Act, 1908 (IRA), the relevant law for the system of
registration of instruments, is based on a deeds-based registration system in
which the registered deed serves as evidence of the transaction having taken
place and not as proof of title. A failure to register transfer of property
(subject to exceptions) as per the IRA can render the transaction inadmis-
sible as evidence. As per section 35 of the Stamp Act, 1899, instruments
that are not duly stamped are neither admissible as evidence, nor can they
be registered by a public official. The Transfer of Property Act, 1882, deals
with the types of transfer of property that confer formal property rights in
the form of ownership, lease rights, mortgage, and so on. It is presumed that
 Land title legislation in India 29
the transactions once registered are genuine, but this is only a presumption
unless challenged in a court of law. The Indian Evidence Act, 1872, reaf-
firms this presumption with respect to registered documents. The situation
regarding boundaries and spatial details is more complicated. While sec-
tions 21 and 22 of the Registration Act provide legitimacy to the survey and
settlement process, maps and surveys (which provide clarity on boundaries
and area-specific detail) do not require mandatory registration along with
property documents, even as the Evidence Act, 1882, does recognise details
in maps as facts.
It is pertinent to note that section 17 of the Registration Act, although
mandating compulsory registration of a sale deed on land, does not require
registration authorities to verify the history of the land or its ownership and
encumbrances from the seller. Under the Transfer of Property Act, 1882,
too, there is no reference to verification of the previous legal status of the
seller. This is primarily based on the principle of caveat emptor in law, or
‘let the buyer beware’. Accordingly, the principle puts the buyer at caution
by placing the responsibility on the buyer to make the relevant enquiries in
relation to the land.
It appears that all these laws, of colonial origin, came to terms with the
basic inadequacy of efforts that seek to make all records completely accu-
rate and free from any doubt. Given this basic indeterminacy, courts were
given the power to adjudicate on claims arising from disputed ownership or
boundary, apart from other litigation issues arising from land.
Under the current presumptive system of land records in India, subse-
quent to a registration of the conveyance deed, a quasi-judicial process of
mutation needs to be undertaken. This mutation entails verification by rev-
enue officers that a genuine transaction has taken place as per the registered
deed, which is then followed by an updation of the land/revenue record,
commonly known as the Record of Rights. The mutation-registration link is
the vital connection, which enables verification of the status of such prop-
erty and vires of persons entering into transactions, subject to the ‘let the
buyer beware’ rule and determination, if any, by the courts if there is a legal
challenge to title. This connection requires active cooperation of the Rev-
enue department of the state, and in particular coordination between the
registration and revenue functions. Linkages with the survey and settlement
function (within the Revenue department) further buttress the presumed
accuracy of the record, so long as updation is timely and accurate.

Principles of conclusive titling and the Torrens system

While India follows a presumptive system, the ultimate aim of the Govern-
ment of India (GOI) flagship programme on land records modernisation
introduced in 2008 is to usher in a conclusive titling system with title guar-
antee (DoLR 2008–09: 2). Within the conclusive system of titling, the GOI
advocates the Torrens system, with ‘mirror’, ‘curtain’, and ‘indemnity’ as
30  Amlanjyoti Goswami, Deepika Jha, et al.
its core principles. It is necessary to understand what each of these terms
means, and what the transition from a presumptive to a conclusive system
would entail.
As documented by DoLR (2008–09: 8), the ‘mirror’ principle would
require that the cadastral records mirror the ground reality. This would need
accurate textual and spatial records, which are further updated on a real-
time basis.
The ‘curtain’ principle would ensure that the title is a true depiction of
ownership status, and references to past records would not then be nec-
essary. It would essentially draw a legal curtain over past transactions or
rights, thus making sure that tracing the chain of title through a series of
previous transactions would no longer be required.
The ‘indemnity’ principle would provide a guarantee to the correctness
of the title. Any loss suffered by a titleholder on account of defect of title
will be monetarily compensated by the State. In addition, the National Land
Record Modernisation Programme (NLRMP) also targeted having a sin-
gle window to handle all land records, including textual records, spatial
records, and registration records (DoLR 2008–09: 8).
In the shift to a system of conclusive titles, the registration process would
also change from a deeds-based system to a title-based one. Under the cur-
rent legislative framework in India, the sub-registrars register conveyance
deeds which record a transaction of property, and these act as evidence of
the transaction (though not of the property title). In the proposed title-based
registration, the title of the property itself would be registered and thus serve
as conclusive evidence of the proof of title. In other words, ‘deeds systems
provide a register of owners, focusing on “who owns what”, while title
systems register properties representing “what is owned by whom” ’ (Wil-
liamson et al. 2010). In effect, this also means that with conclusive titling
in a title-based system, when a transaction would take place, the current
concept of caveat emptor (or buyer beware) would in effect turn into a state
guarantee of title.

Tracing policy shifts towards conclusive titling as a goal

The gradual policy shift towards conclusive rather than presumptive titling
as part of the land records modernisation agenda began in 1989 when
Mr D.C. Wadhwa recommended these changes as a part of the One-Man
Committee on Records of Rights in Land in 1989 (Wadhwa 1989; Zasloff
2011). After a decade, it was the ‘India: The Growth Imperative’ report by
McKinsey Global Institute (2001) which brought the issue back into focus.
The report listed land market distortions, including unclear ownership of
land, as one of three major barriers to economic growth in India, claiming
that it accounted for the loss of almost 1.3 percent of economic growth
every year. Subsequently in 2002, a GOI attempt for disinvestment of some
hotels under the Indian Tourism Development Corporation revealed that
 Land title legislation in India 31
while the hotels had operated for several decades, none of them had clear
titles or ownership papers (Zasloff 2011). By 2004, the need for clear titles
was highlighted in the National Common Minimum Programme (NCMP),
a document outlining the minimum objectives of the Central Government in
2004. Nayak (2013) notes that the move towards conclusive titling was sup-
ported by the World Bank and also reflected in the Eleventh Plan (2007–12),
which recommended the formalisation of land rights, repeal of ceiling laws,
and reform of tenancy laws.
The landmark moment in the policy shift was the introduction of the
National Land Records Modernisation Programme (NLRMP) in Septem-
ber 2008, which for the first time stated the ultimate objective as implement-
ing the conclusive land titling system, with title guarantee. The NLRMP
Guidelines 2009 highlighted the important steps to reach conclusive titling:
computerisation of registration, its integration with land records, automatic
mutation following registration, integration of textual and spatial data, con-
ducting cadastral surveys, building record rooms, and bringing legal changes
(DoLR 2008–09: 32). However, of all these preconditions, the focus of the
scheme was clearly on conducting surveys/resurveys, as INR 16 billion of
the initial allocation of INR 31.48 billion was reserved for ‘survey/resurvey
and updating of survey and settlement records’ (DoLR 2008–09: 41). Based
on the recommendations of the Eleventh Plan, the earlier land record mod-
ernisation schemes of the Central Government3 were also combined into the
NLRMP.
The introduction of the NLRMP also triggered a series of other policy
conversations and initiatives at the Central Government level. In Novem-
ber 2008, the Ministry of Urban Development set up a task force on a prop-
erty title certification system. Based on the recommendations of the task
force, the Jawaharlal Nehru National Urban Renewal Mission (JNNURM)
had incentivised states to introduce a property title certification system
in urban local bodies as part of its optional reforms (Ramanathan 2009).
However, this remained limited in implementation.
In 2008, the Government of India (GOI) proposed a draft Model Land
Titling Bill, as a possible legislative solution to ensure conclusive titling.
A subsequent draft was also proposed by the GOI in 2011. Since land is a
subject under the State list of the Constitution, it was imagined then that
the draft Model Land Titling Bill would be adopted subsequently by various
states. However, it did not see much traction from the states. The Govern-
ment of the National Capital Territory of Delhi did propose a land titling
bill in 2009, but it was later shelved because of various procedural and con-
stitutional reasons. In 2008, the Government of Rajasthan had introduced
an ordinance on titling in urban areas (GOI Expert Committee 2014: 3)
but was subsequently unable to get the necessary legislation passed, and the
Ordinance was allowed to lapse. In April 2016, the Rajasthan Legislative
Assembly passed land titling legislation for urban areas and thus became
the first state to have an enabling legal framework. However, this Act never
32  Amlanjyoti Goswami, Deepika Jha, et al.
used the term ‘conclusive’. The details of such state-level interventions are
discussed in the next section.
In December 2013, the GOI also set up an expert committee, which sub-
mitted its report on a roadmap to land titling in India, in February 2014.
The said committee reviewed four models of land titling – Systematic,
Incremental Compulsory, Incremental Optional, or the Systematic Selective
Model – and recommended that a systematic model of land titling is most
suitable for India, under an independent authority. This indicates a shift
outwards from the Revenue department, which is significant. It also recom-
mended that selective systematic land titling may be undertaken in urban
areas, and recommended that pilot projects can be taken up for such titling
(GOI Expert Committee 2014: 8–10).
It was subsequently through the Real Estate (Regulation and Develop-
ment) Act, 2016, [RERA, section 32(h)] that the term ‘conclusive titling’
first found mention in a statute. Under the RERA, the Real Estate Regula-
tory Authority can make recommendations to the appropriate government
to undertake measures to ‘facilitate digitisation of land records and sys-
tem towards conclusive property titles with title guarantee’. The state gov-
ernment can also notify that real estate promoters must obtain insurance
regarding ‘title of the land and building as a part of the real estate project’
[Section 16(1(i)].
By the end of 2016, the NLRMP was made into a Central-sector scheme
and placed under the umbrella of ‘Digital India’, and was renamed as the
Digital India Land Records Modernisation Programme (DILRMP) (DoLR
22 September 2016). The DILRMP continues to place focus on moving
towards a system of conclusive titling with the mirror principle, the curtain
principle, and title insurance.

State-level approaches to conclusive land titling

To understand the movement towards a conclusive title regime, it is impor-
tant to look beyond the national-level policy and legislative initiatives,
towards the ways by which various states have tried to introduce conclu-
sive titling or improve the records system. This is also significant since land
records come under the State List in the Constitution (Entry 45, Seventh
Schedule of the Constitution) and, while the Central Government can prod
and push through incentives (and model templates), it is ultimately up to the
states to enforce action. Given political economy realities, including realities
of institutional administration, states are more aware of the situation on the
ground, and their measures to ensure a more accurate land record is reflec-
tive of such awareness.
While in principle all states agree on the need to ensure a more accu-
rate land record, efforts in the states seem to follow two broad patterns:
a legally enforceable conclusive titling legislation or incremental improve-
ments in land records management. The first set of initiatives recognises that
 Land title legislation in India 33
a legislative route is necessary for any changes in the titling system and uses
it to push through a series of radical changes in the administrative, judi-
cial, and procedural systems, using a top-down approach. The second set of
initiatives recognises that land records systems are not in a reliable condi-
tion and need to be improved for an updated and accurate set of records,
through computerisation of textual records, digitisation of spatial records,
and integration of the two.

Through legislation
The underlying conditions of land governance vary between states, and a
one-size-fits-all titling model may be inadequate in terms of the local con-
text. A shift towards a titling system would require new and complex laws
and also a nuanced understanding of the different legal conditions that the
titling system will bring. This variation of underlying conditions among
states is reflected in the varied types of title legislation drafted or enacted in
India. For instance, Maharashtra in its 2018 Amendment Bill has sought to
implement a titling system by means of amending its Revenue legislation,
whereas Andhra Pradesh, Rajasthan, and Delhi have sought a route of inde-
pendent enactments.
Some states have attempted to introduce conclusive titling legislation, at
least at some point, and four of these proposed/approved/pending attempts
have been looked into detail vis-à-vis the Draft Model Land Titling Bill
2011, for a more nuanced understanding of how some states have tried to
envision a conclusive titling legislation.
The Draft Model Land Titling Bill 20114 drafted by the then Central Gov-
ernment was an attempt to create a template for states to establish a system
of conclusive titles. It is a ‘model’ and not an actual bill. It advocated an
altogether new institutional framework comprising a Land Titling Author-
ity, Title Registration Officers, a Land Titling Tribunal, and a Land Titling
Fund. The notified provisional title record would turn into a conclusive title
record on completion of a three-year challenge period.

Delhi survey, registration, and recordal of title of immovable

properties in Urban Areas Bill, 2009 (Draft)
The bill was apparently cleared by the Delhi Cabinet in 2010 but was not
tabled in the Legislative Assembly. Subsequently, as per news reports, it
appears that the Central Government had clarified that the Government of
the National Capital Territory of Delhi does not have the jurisdiction to leg-
islate on the matter (Pandit 2015).5 The bill largely followed the template of
the Model Land Titling Bill, 2008, in terms of proposed institutional struc-
tures and processes, but the details were more contextualised to Delhi and
the complexity of its urban property records. Extensive cadastral surveys
were to be carried out assigning unique property IDs. The survey findings
34  Amlanjyoti Goswami, Deepika Jha, et al.
could be challenged and corrected up to seven to ten years, after which the
record was supposed to turn into a conclusive record.

Rajasthan Urban Land (certification of titles) Act, 2016

In April 2016, Rajasthan became the first state in India to have legislation
on land titling. Subsequent rules under the Act have not been framed yet,
and there are no reports of on-ground implementation as of date. The
Act has a provision for surveys to be conducted by various urban local
bodies or development authorities in their respective jurisdiction. A vol-
untary application by a titleholder would lead to an enquiry by the to-be-
constituted Urban Land Certification Authority, and if the Authority is
satisfied, a provisional certificate of title may be granted. If a provisional
certificate is unchallenged for two years, a permanent certificate of title
may be issued, for which the state government shall stand as a guarantor
(Goswami and Jha 2016). Rajasthan has also had a change in political
regime in 2018 and, therefore, given political economy realities, the new
government’s inclination to effect such change remains to be seen.

Maharashtra land revenue code (amendment) bill, 2018 (draft)

There is an attempt in Maharashtra to bring in titling legislation through
amendment of the state Revenue Act. The draft bill has seen various rounds
of discussions and amendments and has been cleared by the state Cabinet
but is yet to be passed by the state legislative assembly.6 The bill follows the
Torrens system of creation of Register of Titles, Register of Disputes, and
Register of Charges and Covenants, which would be termed conclusive after
a three-year challenge period. It also proposes a new Land Titling Authority,
but the composition of the proposed six-member Authority would be more
contextualised to the local revenue administration system. It would include
two divisional commissioners who are in charge of revenue functions, the
state Inspector General of Registration and the Survey and Settlement Com-
missioner. The draft bill mentions a ‘strata’ title for urban areas, with special
focus on newly created titles such as apartments and flats. Critically, it does
not emphasise fresh cadastral surveys and instead seeks to enable use of
existing records to be adapted for the purpose.

Andhra Pradesh (AP) Land Titling Bill, 2019

The Andhra Pradesh Legislative Assembly passed the AP Land Titling Bill
on 29 July 2019. Since there are legislative competence issues between Cen-
tre and State (especially with regard to inconsistencies with the Registration
Act, 1908; the Stamp Act, 1899; and other Central legislation), the AP Land
Titling Bill, 2019, would require assent from the President of India, before it
is notified in the Gazette as a new law. Similar to Maharashtra, the AP Bill
 Land title legislation in India 35
also enables use of existing records, instead of de novo surveys, to create a
Title Register, a Register of Disputes as well as a Register of Charges and
Covenants. It states that draft land title records shall be termed conclusive
if they remain unchallenged for a period of two years after the initial notifi-
cation. It emphasises that all records must be in electronic format, consist-
ent with the provisions of the Information Technology Act, 2000, and the
Evidence Act, 1872. Powers of respective authorities under the Registra-
tion Act, 1908; the Stamp Act, 1899; and the AP Survey and Boundaries
Act, 1923, would also vest with the newly created Land Titling Authority.
However, the bill does not define what a conclusive title is. It also does not
include provisions related to the ‘guarantee’ aspect of the Torrens system
since that involves questions of State indemnity.
Achieving a conclusive titling system through legislation is not an easy
panacea. So far, states have not been able to achieve much movement on
such initiatives, as the legislation often does not offer a way to resolve
the incremental difficulties that have arisen in land records modernisation
efforts. In particular, there is a need for clarity on verification processes and
relevant due diligence, which need to be followed by the new institutions,
in order to implement and maintain the ‘curtain’ and the ‘mirror’ princi-
ples. Without clear and accurate processes, it is unlikely that the courts
will accept the change from presumptive to conclusive since the courts have
traditionally allocated to themselves the task of adjudicating land disputes.

Through technological initiatives

Technological initiatives across states also have seen variations and trajecto-
ries. Some of these have been in the nature of a pilot project, or a proof of
concept, while some others have seen more extensive implementation. Three
such initiatives are referred to here for a comparative overview.
Resurveys in Gujarat: Beginning in 2008–09, Gujarat was among the ear-
liest states to start an extensive resurvey exercise under NLRMP. To date, it
has also achieved the highest rate of finalisation of new records across the
state.7 A study by IIHS (Indian Institute for Human Settlements) (2017c)
revealed that the objective in Gujarat has been to create a set of land records
which are an accurate ‘mirror’ of the on-ground situation, including provi-
sions for their subsequent updation. Following the due process of survey
and settlement, new records have been promulgated for thousands of vil-
lages, but the state has not drawn a legal ‘curtain’ over the older records.
The new records thus created remain presumptive in nature: open to objec-
tions and challenge.
UPOR in Karnataka: The Urban Property Ownership Record (UPOR)
project in Karnataka was initially introduced in the cities of Mysuru, Shi-
moga, Hubli Dharwad, and Ballari in 2009. It aimed to create property
records in urban areas, which were otherwise not covered in sufficient
detail. While the project’s ultimate aims were to reach conclusiveness of
36  Amlanjyoti Goswami, Deepika Jha, et al.
title, in the short run it instead aimed to reach ‘clear presumptive title’ alone
based on a ‘quasi legal’ process of verification and review (IIHS 2017a: 84).
Chandigarh Land Titling Initiative: In 2016, an attempt was also made
in Chandigarh, to introduce a conclusive land title certificate for urban and
rural areas of the Union Territory, on a pilot basis. However, it was later
shelved because of lack of a suitable legislative framework in the Union Ter-
ritory, among other reasons.
It is largely recognised among states that if conclusive titling is the ulti-
mate aim, then both legislation and technological implementation would
be required. A law with limited/restricted implementation – for example,
the Rajasthan Certification of Urban Land Titles Act, 2016 – may fail the
purpose as it creates a duality of the de jure situation differing from the de
facto, along with process ambiguities. In other words, while the ostensible
goal of the Centre is conclusive titling, states seem to prefer muddling along
the incremental path, acknowledging its own political realities and admin-
istrative systems.

Focus on urban areas

Urban areas have strongly emerged as priority areas when it comes to land
titling in India. This is in marked contrast to the traditional focus on rural
land records in land records modernisation programmes. NLRMP, and sub-
sequently DILRMP, was placed under the Ministry of Rural Development
of the Central Government. Even as late as 2017, the Department of Land
Resources (DoLR), the nodal agency for implementation of DILRMP under
the Ministry of Rural Development, has clarified that DILRMP funds may
be used in urban areas but only to create or modernise ‘land’ records, and
not ‘property’ records. The distinction is germane, keeping vertical apart-
ments in mind, which DoLR keeps out of its ambit.
The focus on titling in urban areas was initially reflected in the optional
reforms under JNNURM (2005–2014), the Rajasthan Urban Land Titling
Ordinance, 2008, and the Delhi Land Titling Draft Bill, 2009 – which were
all applicable only to urban areas. In policy discussions, newly developed
urban areas, especially apartment complexes, are understood as initial meas-
ures to be undertaken from where systematic selective titling can be initiated
(GOI Expert Committee 2014) – as they have a relatively clean slate, given
that historically there are very few instances of land surveys in urban India.
Among the recent technological initiatives, UPOR in Karnataka (2009–10
onwards) and the conclusive titling initiative in Chandigarh (2015–16) have
also had an urban focus. Similarly, the Rajasthan legislation (2016 Act) has
focused only on urban areas.
The reasons for focusing on urban areas are not difficult to understand. The
land values in urban and peri-urban areas make them financially extremely
valuable. They are also characterised by a higher frequency of transactions,
as well as rapid development in real estate and other commercial ventures.
 Land title legislation in India 37
The capacity of urban areas in attracting investment and the potential for
higher tax collection in terms of stamp duty and property taxes increase
their relevance for the national as well as the state economy.
However, urban areas have their own complexities, which cannot be
ignored while initiating such legislative changes, as discussed in the next
section.

Challenges to achieve conclusive titling

Conclusive titling is often justified as a way to resolve a litigious environ-
ment, without adequate acknowledgement to the nature of structural chal-
lenges involved in this shift. The clarity and indemnity of a Torrens-like
system may not be realised, especially in the short term, without addressing
underlying systemic and structural causes of current legal and other dis-
putes: the rent-seeking behaviour characterising current land and real estate
transactions and the diverse transaction formats in use to meet requirements
of various socio-economic groups. On-ground difficulties of sourcing and
verifying property documentation are among the other practical difficulties
of the proposed transition.
Ashokvardhan (2017) notes that the de facto implementation of titling
systems would require associated systems such as planning, legislation, and
financial-related regimes to be robust and updated. Issues such as survey-
ing land and inter-linkages with other departments will also need to be
addressed. According to Ganguly and Mishra (2017), of the four models of
titling–Systematic, Incremental Compulsory, Incremental Optional, or the
Systematic Selective Model – the best model would have to be determined
for each state, depending on specific conditions prevalent in the state.
The challenges to achieving a conclusive titling system in India can be
classified into the following six categories.

Legal challenges
‘Land records and Records of Rights’ fall under the ‘State List’ of the Con-
stitution of India. As per Entry 45, List II, Seventh Schedule of the Consti-
tution, matters pertaining to ‘land revenue, including the assessment and
collection of revenue, the maintenance of land records, survey for revenue
purposes, and Records of rights, and ‘alienation of revenues’ are the domain
of respective states.8
Land Revenue Acts (under which the land records maintained by vari-
ous states derive their basis), for example, are within the jurisdiction of
states and not the Union Government. Similarly, varied post-independence
era legislation on land reforms, consolidation of landholdings, land ceiling,
and tenancy reform are also within the states. In addition, there are laws
that provide a legitimate basis for development authorities (especially for
expanding peri-urban areas), town and country planning authorities, and
38  Amlanjyoti Goswami, Deepika Jha, et al.
municipal and other urban local bodies (with taxation powers and records),
the majority of which are also in the state government’s domain.
The GOI can, through its various programmes and schemes, attempt to
incentivise state action, but legislative authority on the most critical land
records questions ultimately rests with the states. This means, without ini-
tiative from the respective state governments, within their own political and
social contexts, there is little traction for any such measure.9

Litigation
As per some survey estimates, about 66 percent of the civil cases pending in
Indian Courts pertain to land disputes (Daksh 2016: 7).10 India follows an
adversarial model of litigation (while there are new mechanisms on media-
tion, conciliation, and arbitration) in a Common Law system that is pre-
dominantly reliant on courts and the efficacy of judicial dispute resolution
procedures. This makes the legality or otherwise of particular transactions
the pivotal point, especially in light of the proposed titling efforts. The mul-
tiple causes for disputes, and the nature of the dispute resolution process,
are serious impediments to an effective land administration system.
Since the Judiciary assumes an indispensable role in upholding claims in
India, a shift from presumptive to conclusive titling needs to be understood
in terms of legal processes, structures, and verification protocols involved in
judicial determinations.
For ownership and other land rights to be conclusive beyond doubt, two
sets of actions are critical. The first is the recording of disputes to ensure no
disputed properties are granted ‘conclusive title’. To date, the land records
systems in most states do not have an easy way of incorporating informa-
tion on pending disputes. Similarly, Courts also do not maintain a record of
disputes identifiable by survey number or property identification number.
This makes determining the dispute-free land parcels for conclusive titling
a risky proposition, unless timely interventions are made in the format of
recording disputes.
The second set of actions would be to ensure clearing the existing backlog
of millions of disputes at various levels of the judicial system. For future dis-
putes, most of the state-level titling initiatives suggest setting up land titling
tribunals and barring title suits from civil courts. However, a legislative
route for such transfer of cases may not be enough, and Courts will have to
be convinced of this, with a well-defined procedure for due diligence, use of
reliable technology, and suitable legislative support.

Institutional complexity
A common feature across most titling legislation is the proposal for forma-
tion of a new authority for land titling – it is recommended by the Draft
Model Land Titling Bill, 2011, and the AP Land Titling Bill, 2019, and
 Land title legislation in India 39
is also seen in the draft Bill of the National Capital Territory of Delhi.
Rajasthan also proposes creation of an urban land certification authority.
The latest draft of the proposed land titling legislation in Maharashtra also
recommends creation of a new authority, even though the earlier versions of
the draft recommended land titling within the domain of the state revenue
department.
However, despite this uniformity of approach across states, the idea of
creating a new authority for land titling faces its own share of roadblocks.
The most significant among these is likely to be the perceived loss of author-
ity on part of revenue, registration, and survey departments. These depart-
ments have traditionally been the custodians of land records and are also
dependent on such power for their revenue sources. Replacing the revenue
department as the primary custodian, or creating a sui generis authority
supervising its functions, directly impacts existing institutional systems. The
recent draft land titling legislation in Maharashtra recommends that the
heads of the three wings within the Revenue department – revenue, registra-
tion, survey and settlement – would all be part of the land titling authority –
thus, attempting better cooperation and coordination. This, however, does
not take away from the fact that a new authority is being envisaged on
titling issues.
The early experiences of modernising land records in Karnataka (Ben-
jamin et al. 2007), Himachal Pradesh, Haryana, and Bihar (IIHS 2017b,
2017d, 2017e) have highlighted that there is often a resistance to change,
especially in the early years. Acclimatising to new systems requires coordi-
nation and cooperation across a range of stakeholders, and the incentive of
each plays a critical role. There is a need to define functional jurisdictions
of each of the existing and new institutions, as well as crucially, the shar-
ing of revenue streams among them. Personnel and resource constraints,
particularly to manage technological transitions, would also be one of the
deciding factors.
When it comes to urban and peri-urban areas, there is a manifold increase
in the complexity of regulations and multiplicity of urban authorities and
their changing jurisdictions. While rural areas have the Revenue department
as the single authority in charge of land records, the same is not be true
for urban areas. Cities also have urban local bodies, planning authorities,
development authorities, housing authorities, slum development agencies,
industrial area authorities, and other special authorities – each of which
performs a distinct function within urban land governance and maintains its
own set of records. For a conclusive title regime to understand these institu-
tional roles, and the political economy around them, and to incorporate var-
ious existing databases –to draw a curtain over previous transactions and
ensure guarantee – there would be a need for comprehensive customisation
at the state, if not city level. For example, under the Rajasthan Urban Land
(Certification of Titles) Act, 2016, respective urban authorities oversee the
surveys and dispute settlement processes in their areas, while the state-level
40  Amlanjyoti Goswami, Deepika Jha, et al.
Urban Land Title Certification Authority would carry out verification of the
applications for certificate of titles. The legislation does not address the lack
of incentives for the urban local bodies to maintain an up-to-date record,
and how their functioning could be linked to the certification authority.

Political economy and land tenure

The emergence of the Torrens system in Australia, or its adaptation in other
countries such as the United Kingdom (UK), represents a distinctly different
political economy. These are countries which have either managed to nul-
lify previous historical claims on land and property (Wensing 1999; Secher
2000) or have had well-documented histories and record-keeping structures
(Mayer and Pemberton 2000), thus making it possible to draw a curtain.
Despite this, the shift from deed registration to title registration in the UK
took more than 100 years (ibid).11
However, the political economy in India, and its rapidly urbanising status,
presents a very different set of challenges. India has a relatively nascent,
recent, and incomplete post-colonial history of land reforms. The largely
failed land redistribution efforts in independent India, and the inability to
ensure tenancy reform in practice, has resulted in a failure to address the
multiple issues relating to land, of diverse sections of the population. The
country continues to have a large section of the population experiencing
poverty, and as such, economic considerations regarding the link among
land, land tenure, and economic growth is a recurring question in national
and state-level policy. Empirical studies in India have shown that property
titles via computerisation of registration system did not improve access to
credit in rural areas (Deininger and Goyal 2009). Such attempts are also
read in light of the context of the vexed issue of urban irregular and informal
settlements for which traditional titling regimes are inadequate and counter-
productive. These larger questions regarding the relationship between land
and people need to be recognised before adopting a Torrens-like approach.
More recently, implementation of land records modernisation programmes
has highlighted that it is difficult to capture the on-ground diversity of prop-
erty transactions within a standardised technological approach. A variety
of documentation and arrangements are used in land transactions – both
formally and informally – and several of them are yet to be captured by the
formal system of land records. In addition, the tenure spectrum in urban
areas is equally diverse, if not more, than rural areas. There are a range of
tenure options, a result of various urban development processes as well as
the gaps created by them.
Apart from ownership, properties in urban areas are often characterised
by their adherence (or lack of it) with respect to building byelaws, planning
processes, and municipal byelaws. For example, a particular property in the
city may well have an undisputed owner of the land and building. However,
that plot may be a part of an unauthorised colony and unable to access
 Land title legislation in India 41
water and sanitation services. The plot could have unauthorised land use,
which does not follow the city’s master plan, and could further be under
threat of relocation outside the city. Alternatively, the building on that plot
may have an additional floor as unauthorised construction, which is under
threat of demolition by the municipal authority. In addition, while the own-
ership is not under question, the actual possession may be with other par-
ties. Under a simplistic conclusive titling regime focused on ownership, the
property record is likely to note only the land/building ownership and not
the other characteristics, which are also significant. Critically, none of these
would convey an adequate sense of the de facto situation on the ground,
especially where the de jure position also remains to be clarified.
Bhan (2013) defines such a comprehensive spectrum in Delhi using legal-
ity, formality, planning status, and legitimacy of the settlement as the indi-
cators. A conclusive titling system in urban areas is by definition unable
to define and acknowledge the comprehensiveness and complexity of such
tenure. It is also unable to recognise or deal with the likely legal and political
implications of these issues. None of the titling legislation reviewed under
this study seem to demonstrate adequate cognisance of, and sensitivity to,
such factors.

Status of land records

The digitisation of land records since the first GOI schemes of CoLR and
SRA&ULR were introduced in 1988–89 has helped to better manage land
records. As per statistics from DoLR (dated December 2018), out of a total
of 36 states /Union Territories (UTs), 15 have computerised their Records of
Rights to an extent of 95 percent and above, while another 17 states/ UTs
have on-going initiatives. Similarly, 19 states/ UTs have computerised their
registration process, while 12 are in the process of doing so. However, there
is relatively slower progress in the other indicators.
One of the most crucial aspects to move towards conclusive titling is the
integration of registration and land records systems. Transitioning to con-
clusive titling would require the registration process to verify the landown-
ership data, and to automatically mutate the record of right subsequent to
registration. However, only 11 states/UTs have been able to achieve such
inter-linking, and another ten are in the process.
Similarly, linking the spatial records and the textual records is critical,
but only three states have managed to do so, with ongoing initiatives in
another 15 states/UTs. One of the reasons for the slow progress is because
the details in textual records often do not match the spatial records, and the
revenue administration needs to resolve these issues through a set of proto-
cols, which need further implementation based on ground realities.
While these statistics reveal that not all states have made equal progress
in computerisation of land records, there are certain states that have been
able to achieve all four of the aforementioned steps. However, details are
42  Amlanjyoti Goswami, Deepika Jha, et al.
still awaited as to the quality and extent of such efforts, thus restricting
their transition to a conclusive title regime. Other factors also play a critical
role, including unrecorded encumbrances (land acquisition, partition, pend-
ing disputes, and mortgage), inadequate infrastructure, as well as recording
of legacy information.
The disconnect between recent technological initiatives and the legal posi-
tion is also important. Some statutory developments at the Centre have ena-
bled the status of ‘electronic records’ for some computerised land records.
The Information Technology Act, 2000, and the amended Indian Evidence
Act, 1882, confers evidentiary value on electronic records. However, proce-
dural aspects such as the necessary legal due diligence required, as well as
issues pertaining to public access of records, remain to be addressed. In most
states, technological initiatives may not be backed by sufficient legislative
endorsement, thus stopping short of providing these initiatives with com-
plete legal protection. For example, computerisation of registration process
and its inter-linking with land records has enabled the sub-registrar to verify
whether the seller is indeed the owner of the land, as a way to ensuring a
more transparent system and fewer fraudulent transactions. However, under
the deeds-registration system, the sub-registrar is not required to verify such
chain of ownership, and further, the technological link between registration
and revenue records may well not be taken into account. There is, therefore,
a need to ensure adequate statutory foundations for such technological initi-
atives. This may also help in bringing greater clarity with respect to various
procedural protocols that revenue departments in different states undertake
for their departmental operations.
Urban and peri-urban areas face particular challenges of maintaining
up-to-date land records, especially regarding the areas covered under the
records, relevant details being captured, comprehensiveness of the record
format, and status of updation (IIHS 2017a). Some of these are as follows:

Urban/abadi areas not covered: North Indian states such as Delhi, Pun-
jab, and Haryana do not have land records for abadi areas, and the
rural records typically stop getting maintained as soon as urbanisation
processes start.
Inadequate level of detail; records not comprehensive: Maharashtra and
Gujarat have a system of city surveys in which records of urban areas
are maintained in a format different than rural areas, and by a differ-
ent agency. However, these too typically tend to omit/overlook record
keeping in apartments. The details captured in these formats are also
reflective of the local landholding pattern and are not typically stand-
ardised – for example, in Maharashtra, city survey records of most
apartment complexes reflect the name of the cooperative housing soci-
ety, and not of individual apartment owners. This is because the own-
ership of the flat is typically vested by way of their membership of the
cooperative housing society – which may not be congruent to the idea
of property ownership under the conclusive titling regime.
 Land title legislation in India 43
Urban records not up-to-date: Some other states in eastern and southern
India maintain records of urban areas in the same format as rural
areas – however, the frequency of transactions (including changing
spatial demarcation) in urban and peri-urban areas is often so high
that the records may not reflect the on-ground situation in adequate
detail or an updated state.

As a result, across India, even if some urban land records exist, they are
often not updated (in terms of spatial or textual information) and do not
have information adequate to represent the complexities of urban property.
In this context, it is important to note that among the legislative docu-
ments analysed for this chapter, only Maharashtra talks about a ‘strata’
title – or a title for vertical properties. The Rajasthan Act, despite being
meant only for urban areas, does not address the question of whether verti-
cal properties would be recorded. Beginning in 2014, Gujarat now attempts
to capture vertical properties in its city survey records, but the initiative is
restricted to newer areas under city survey jurisdiction (IIHS 2017b).

Status of resurveys and spatial records

Survey is a very distinct and important part in most of the proposed titling
legislations and the state-level technological initiatives. Assigning a unique
property ID is also a common feature among them. The link between con-
clusive titling and resurvey was first instituted in the policy domain by
NLRMP, which introduced funding sources for mass-scale resurvey exer-
cises in various states. The GOI Expert Committee, in its 2014 report on
roadmap to land titling, had recognised that an essential prerequisite for
the systematic model of land titling was the existence of a ‘proper cadastral
survey record’, and also noted ‘definite advantages in terms of time, cost
and resources if the resurvey exercise and titling are done simultaneously’.
The Delhi Land Titling Bill, 2009; the Draft Model Land Titling Bill, 2011;
and the Rajasthan Urban Land Titling Act, 2016, recommend surveys to
create the initial set of records for the title register.12 The Maharashtra draft
legislation (2018) and the AP Land Titling Bill, 2019, also recommend crea-
tion of an initial record of accurate or approximate boundaries with distinct
property identity numbers but enable use of existing records to be adapted
for the purpose, instead of a focus on cadastral surveys.13
When the NLRMP began in 2008, 50 percent of the funds under the
programme were targeted towards resurvey (DoLR 2008–09: 41). This led
to massive resurvey exercises being initiated in several states. However, the
survey results could be finalised in only a handful of villages across the
country, except for Gujarat (IIHS 2017a). The resurvey experiences revealed
that often there is divergence between new geo-referenced spatial databases
(which are more accurate because of the use of the latest technology but do
not have immediate legal validity) when compared with physical existing
spatial records (which are less accurate but are legally valid documents).
44  Amlanjyoti Goswami, Deepika Jha, et al.
Increased spatial accuracy as a result of resurveys may increase disputes
in the short and medium term, as the survey findings are often challenged by
people whose landholding size mentioned in the record of right decreases.
For example, according to some settlement officials from Himachal Pradesh,
in some areas the number of objections received after a resurvey exercise
may be around 20,000–30,000 per tehsil, or filed by 10 to 20 percent of
all landowners (IIHS 2017e: 30, 61). As per recent news reports (‘Gujarat
government receives’ 2018), it appears that the Gujarat state government
received around 18,000 complaints regarding the resurvey. These objections
often lead to new spatial records being shelved by the state government,
thus not creating an accurate up-to-date spatial mirror. For example, as per
recent news reports (‘Guj govt halts process’ 2018), finalisation of resurvey
records in the remaining 6,000 villages of Gujarat was recently put on hold,
apparently because of issues pertaining to reduction in plot sizes, disappear-
ance of grazing land, and other procedural issues (‘Govt halts process of’
2018, ‘Gujarat halts agricultural land’ 2018).
By the end of 2016, the DoLR issued policy circular no. 1 of 2016
(DoLR 8 December 2016), which restricted any Central fund alloca-
tion for resurvey and limited availability of funds to only new surveys of
unsurveyed areas.14 Some countries have implemented the Torrens sys-
tem or have title guarantee systems in place but do not assure accuracy
of boundaries.15 In India, the years 2017 and 2018 have witnessed an
increasing number of conversations on title insurance for real estate pro-
jects (refer to IRDAI Working Group 2016), and the position of insur-
ance policies on accuracy of boundary details would become increasingly
relevant.
A review of the existing status of land records management in India
brings out challenges in each of the four principles of conclusive titling
advocated by NLRMP/ DILRMP. The current land records are not a mir-
ror of the on-ground situation – they are either not reliable, or not up-to-
date, and the textual records often do not match the spatial records. Some
states have made significant technological progress, but a lot remains to
be done in terms of ensuring access to the common citizen. The latest
attempt to create a mirror of the on-ground situation – through the resur-
vey initiatives under NLRMP – has not seen any major success and may
have inadvertently led to an increased number of disputes in the short
term. These existing disputes form a major roadblock to drawing a cur-
tain over the older chain of titles, again, demonstrated through the resur-
vey experience.
Maintaining a record of land-related disputes is itself fraught with issues,
and clearing the current backlog or transferring it to special tribunals would
need strong judicial support at various levels. The efficacy of evidence and
verification protocols would determine whether or not the Judiciary recog-
nises the legal curtain over historical land and property rights. The third
principle of indemnifying against any defect in title is related to the mirror
 Land title legislation in India 45
and curtain aspects, and it would need a much-strengthened land record
system for the state guarantee to be a viable option. The private sector may
be considering the prospect of title insurance, but its limited application to
real estate projects and restrictive affordability may prevent it from making
a substantial difference in the conclusive titling prospects. The fourth prin-
ciple of having a single authority, often de novo, is one of the more complex
institutional questions, and the implications would vary substantially from
one state to another.
Crucially, land records fulfil more than just economic functions. In the
states of Punjab and Haryana, land records include shajra-nasb (the gene-
alogy tree of each landowning family in a village). In Himachal Pradesh,
wajib-ul-arj (a part of the record of right) denotes the customary rights in
a village, including sharing of water sources, grazing rights, and the right
to timber. In Maharashtra, they are used to record areas under cultivation
every year, including crop type and irrigation. In several other states, land
records are used to record and determine caste structures, and accordingly
provide legal certificates. These records also serve as archives to historical
tenure systems, distinguishing freehold ownership from inam land, shamlat
land, poramboke land, khas mahal land,16 etc., each of which has a distinct
meaning and legal connotation in the local context. Reducing these land
records to simply their economic function – largely of ownership rights –
under conclusive titling requires structural changes for which many states
may not be ready.
The neoliberal impulse is manifest in the tendency to reduce land records
to the purely economic and transactional, ignoring other socio-historical
aspects. Ensuring accurate records is a measure that the state can use to har-
ness other distributive ends, but the narrow focus on titling and ownership,
through the adoption of the Torrens system, to the exclusion of other tenure
aspects, directs all attention to the areas with maximum economic activity
and neglect of other areas. This creates disincentives for the difficult task
of improving the larger system. Further, the lack of accurate survey details
in such titling efforts makes the title itself fraught with the threat of litiga-
tion. Therefore, there is need to distinguish the State’s modernising impulse
of computerising and digitising land records from the neoliberal impulse of
focusing on title legislation based on the Torrens model, to the exclusion of
other systemic issues.
There appears to be a tendency of reducing records to transactional fre-
quency, especially focusing on registration. This would imply that other
considerations which impact political economy, such as social aspects of
gender and caste; informal settlements with insecure property rights; acqui-
sition, rehabilitation, and resettlement issues; questions of land use, includ-
ing commons in urban and rural areas; and land in the context of fragile
ecosystems (especially where more community-based maintenance of such
systems are involved), do not receive adequate attention. The ostensible
objective seems to be the need to make records clear and accurate in terms
46  Amlanjyoti Goswami, Deepika Jha, et al.
of title and extend such information to questions of litigation and charges
on such records, in order to make buyer-seller transactions more transpar-
ent and accurate. This focus on transactions alone takes away from other
realities around land use, in rural as well as urban areas.
State governments remain the primary institutional actors when it comes
to land administration. Most of the states are cognisant of their respec-
tive positions with respect to status of land records and the significance
of land systems in their overall social, political, economic, financial, and
institutional structures. The key challenge remains one of ensuring real-time
accuracy, that is, up-to-date land records, accessible to the common citizen,
beyond mere formalities of computerisation and digitisation. Given the sys-
temic nature of the issues highlighted, incremental measures to ensure an
updated, more comprehensive real-time land record system appear more
pragmatic than instant top-down measures such as titling legislation, which
do not seem to adequately account for the complexities within land tenure
and land administration systems in India.

Notes
1 The authors work with the Indian Institute for Human Settlements (IIHS). Views
expressed are personal.
2 Record of Right (RoR) in the states of Punjab and Haryana. It is the revenue
record in which various rights and liabilities in respect of every piece of land are
noted.
3 With revenue records in a state of disrepair, the earliest Central Government
schemes to computerise land records began with the Computerisation of Land
Records (CoLR) Scheme in 1988–89 and the Strengthening of Revenue Admin-
istration and Updating of Land Records (SRA&ULR) Scheme in 1989–90.
4 For the purpose of this chapter, the 2011 version of the Draft Model Land Titling
Bill (from the DoLR website) has been referred to. However, this document is no
longer available on the website.
5 An official copy of the bill was put up on the Delhi government website for pub-
lic consultation (Nov 2009) but is currently not available on the website.
6 An interim draft (dated July 2018) has been referred for the purpose of this
chapter. An earlier draft (dated 2015) was accessible on the Chandrapur district
website but is not currently available.
7 Resurvey records of approximately 11,000 villages (out of a total 18,000 vil-
lages) in Gujarat have been finalised (‘Gujarat: Brakes on fixing’ 2018).
8 At the same time, the ‘transfer of property other than agricultural land; reg-
istration of deeds and documents’ fall within the Concurrent List (List III,
Seventh Schedule) powers (to both Union and states). A number of central laws
exist on matters that have a direct relationship with land records: the Registra-
tion Act, 1908; the Stamp Act, 1899; the Transfer of Property Act, 1882; the
Evidence Act, 1872; and so on. It is important to note that the Constitution
of India does not expressly refer to ‘title’ in relation to land and land-related
transactions.
9 At the same time, certain amendments will also be required in the Indian Registra-
tion Act, 1908, to move from deed-based registration to title-based registration,
 Land title legislation in India 47
as recommended by the Model Land Titling Bill, 2011; the Maharashtra Draft
Bill, 2018; and the AP Land Titling Bill, 2019.
10 Estimated by Daksh (2016: 7) from a survey of 9,329 litigants across 305 loca-
tions in 170 districts of 24 states. According to the National Judicial Data Grid,
as of January 2019, a total of 8.5 million civil cases are pending in the district
and taluka courts of India, and another 2.3 million civil cases are pending in the
High Courts.
11 According to Mayer and Pemberton (2000), deed registration in the UK began as
early as 1535. Title registration was introduced via a Statute in 1862, and then
made compulsory for the first time in 1897. The last areas in the UK to opt for
compulsory title registration were brought in by 1990. New legislation in 1998
widened the scope for compulsory registration, but the system is yet to include
all the properties in England and Wales.
12 Following a systematic model, the Delhi Land Titling Bill, 2009, and the Draft
Model Land Titling Bill, 2011, propose notification of survey results, and use of
these to create a provisional title register, unless challenged. The Rajasthan Act
of 2016 proposes a mix of systematic model and incremental-optional model
wherein a survey is to be conducted in the notified urban areas, but the title
registration would take place only upon voluntary application by the landholder,
with no distinct link to the survey proceedings within the Act.
13 In the case of Maharashtra, this is more likely in view of a systematic selective
titling, targeted at apartment complexes and other clean titles in urban areas.
14 NLRMP Guidelines 2008–09 allocated INR 31.48 billion over an estimated five-
year period. Of this, INR 16 billion was earmarked for resurvey exercises (DoLR
2008–09: 41). At the end of eight years, by December 2015, only INR 11.7 bil-
lion of the sanctioned 31 billion had been released (DoLR 2016: 26). The revised
DILRMP guidelines 2018–19 have reduced the total outlay to INR 9.5 billion
over a three-year period and do not have any amount earmarked for resurvey
exercises (DoLR 2018: 38–39).
15 As noted by Sinha (2017), the Torrens system in Queensland, Australia, ‘guaran-
tees only the correctness of the title and of the recorded land rights and; it neither
guarantees, nor pays compensation for errors in measurements of the land and in
the delineation of boundaries.’ Similarly, Her Majesty’s Land Registry (HMLR)
in the United Kingdom also does not guarantee the correctness of land parcel
boundaries and instead relies on ‘general boundaries’ (Ordnance Survey 2018).
16 These are different categories of lands which are not under freehold private own-
ership, and their legal status and characteristics vary based on the prevalent
revenue system. For example, inam lands in Gujarat are rent-free lands received
as grants, which can be inherited. Shamlat lands in Punjab are areas which are
under community ownership of all landowners in a village, while poramboke
lands are typically uncultivable lands which are outside the revenue records.
Khas mahal land in West Bengal is government-owned land historically given
out on lease for particular purposes.

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3 Critical assessment of recent
real estate regulatory reforms
in urban spaces Ray Sharat PrasadReal estate reforms in urban spaces

Whether trickle-down effect is

for all?
Ray Sharat Prasad

Introduction: manifestations of neoliberalism in India

Fresh with the memories of exploitative colonial experience and Fabian
socialism being in vogue among decision makers, India, after independence,
adopted a model of governance which was based on the tenets of a ‘welfare
state’ and which was inclined towards State monopolisation of resources
and redistribution, protectionism, and intervention – both at macro and
micro levels of governance – through central planning.
In 1992, a paradigm shift from a pre-1992 model of governance towards
a new model of governance occurred in India. The new model adopted is
one of the variations of the neoliberal model of governance1 (Steger and
Roy 2010), which believes in establishment of a robust market as the driv-
ing force for socio-economic growth, with minimal State intervention at the
micro level of governance but with greater State intervention at the macro
level of governance (Peck 2001) as a market regulator and facilitator of
demand, supply, and value creation in commodities. It does not entail the
‘rolling back’ of State regulations and the ‘rolling forward’ of the market;
instead, it advocates a complex reconstitution of State-economy relations
in which State institutions are actively mobilised to promote market-based
regulatory arrangements (Brenner and Theodore 2005).
The new economic model – structural adjustment programme − carries
the elements of neoliberalism advocated by the International Monetary
Fund and the World Bank and backs liberalisation, privatization, and glo-
balisation as the tools for driving economic growth in India. The reasons
for this paradigm shift could be both external and internal. External reasons
could be to bail India out of the balance of payment crisis that was acceler-
ated by the first Gulf War and sudden decline in remittances from Indian
expatriates in the Middle East (Ahmed, 2007), and a decline in India’s for-
eign trade because of the collapse of the Soviet Union and the growing avail-
ability of investible resources in foreign exchange (Kohli 2006). Internal
reasons could be that Indian capital had split politically – being fed up with
the license raj, red-tapism, and corruption – with significant factions at least
willing to experiment with a more open economy.
52  Ray Sharat Prasad
This paradigm shift from a pre-1992 ‘welfare state’ model of govern-
ance towards the neoliberal model of governance can also be witnessed in a
series of post-1991 legislative and policy reforms regulating the urban real
estate sector in India. The neoliberal approach adopted by the State (hence-
forth neoliberal India) in regulating the urban real estate sector envisages
a systematic, rather proactive, intervention of the State as a regulator and
the facilitator in creating sustainable demand, supply, and value in urban
land parcels and urban real estate commodities.2 The State, by acting as a
facilitator and regulator of the urban real estate market, aims to create bet-
ter opportunities and possibilities for all the actors in the urban real estate
sphere – landowners, investors, developers, and consumers – involved in
the creation of supply and demand in urban real estate commodities. The
State expects that this approach will assist in achieving the twin objectives
of sustainable economic growth and fulfilment of the socio-economic aspi-
rations of all such actors, including those of the urban poor, through the
trickle-down effect.
The new land acquisition act3 – Right to Fair Compensation and Trans-
parency in Land Acquisition, Rehabilitation & Resettlement Act, 2013
(RFCTLARRA), which replaces the old act (Land Acquisition Act, 1984 –
LAA) made the land acquisition process difficult and stringent. Under
RFCTLARRA, in cases in which the government intends to acquire land for
public-private partnership (PPP) projects or for private companies, a prior
consent of at least 70 percent and 80 percent of the affected landowners,
respectively, is required to be obtained. Further, in addition to one-time cash
payments, a payment of compensation of up to four times the market value
of the land in rural areas and up to twice the market value in urban areas is
required to be made by the State to the landowner whose land is acquired.
Additionally, the government is also obligated to resettle and rehabilitate
all project-affected persons, including the landless, and to provide socio-
economic benefits such as land for land, housing, employment, and annui-
ties to such persons. In case the land is acquired for urbanisation purposes,
20 percent of the developed land is required to be reserved and offered to
the landowners, in proportion to the area of the land acquired, keeping into
consideration the cost of its acquisition and development.
Given the stringent provisions of RFCTLARRA as well as that it is a
time-consuming process, with huge upfront costs and long, drawn-out liti-
gations involved in acquiring land parcels for various projects, the State is
consciously giving up its pre-1992 era role of an acquirer and accumulator
of land for projects and is looking for alternative modes of land aggregation.
Specifically in the urban context, the State has taken up the new role of
a broker to facilitate land aggregation in urban areas by private real estate
developers for the development of urban real estate commodities ‘because
in a market economy private companies are the main agents of economic
growth, [and]4 they too must be assisted in overcoming this obstacle’ (Levien
 Real estate reforms in urban spaces 53
2018: 11). In other words, in the context of a market economy, the State has
become an agent for generating the supply of urban land parcels (a scarce
commodity) to be exploited by real estate investors and private developers
to produce the urban real estate commodities to be sold in an open market
to maximise their returns on investments (RoIs).
The State is also taking up the role of a value creator in urban and urban-
isable land parcels through integrated development of large-scale, city-level
infrastructure in urban areas, more often on a PPP model. Recent policies
such as the Smart City Mission, Atal Mission for Rejuvenation and Urban
Transformation (AMRUT), and National Heritage City Development and
Augmentation Yojana (HRIDAY), to name a few, which are discussed later
in this chapter, stand as a testimony for the same. Development of urban
real estate commodities on such value-added urban and urbanisable land
parcels promises creation of a healthy market for such products to fetch
exponential RoIs.
Further, in a market economy, creating a healthy demand in urban real
estate commodities is imperative. It requires a robust regulatory framework
for regulating the real estate sector. Keeping this in mind, the State is proac-
tively making legislative and policy interventions to regulate real estate deals
and bring legal certainty to title and ownership in urban land parcels and
urban real estate commodities.
In the given background, this chapter first presents how, through its
recent legislative actions and policies, the State aims at creating innovative
means for generating a supply of developable urban land parcels, both hori-
zontally and vertically, for development of urban real estate commodities.
Through systematic and proactive intervention as a regulator and facilita-
tor, the State attempts to attract investments from real estate investors and
private developers for the development of urban real estate commodities.
By doing so, the State also facilitates creation of the city-level infrastructure
in and around urban areas and urbanisable land, resulting in value crea-
tion therein and thereby attracting investments for their development. By
revealing the role played by the State in bringing legal certainty to title and
ownership in urban land parcels and urban real estate commodities, the
chapter discusses the State’s creating a conducive environment for stim-
ulating demand in urban real estate commodities among the consumers
and investors. The chapter concludes with discussion on whether recent
legislative trends and policies regulating the real estate sector would lead
to balanced economic growth, which would have a trickle-down effect of
such nature that the socio-economic benefits and prosperity – as claimed by
neoliberalists to be associated with the economic growth generated based
on the operation of market forces – would permeate to all sections of the
urban population, especially the urban poor who are historically prone to
dispossession, displacement, and marginalisation during the whole land-
grab process.
54  Ray Sharat Prasad
Generating land supply
In the 1960s economy, as the private sector was not sturdy enough to shoulder
the responsibility of urbanisation and housing, the State used land acquisition
as the tool for generating a supply of urbanisable land. However, the increas-
ing cost of land acquisition and protracted litigations involved in the whole
process made such land acquisitions unviable for the State during the 1980s.
Further, the surge in consumer demand for urban real estate commodities
because of their increased spending appetite had made the supply of urban
real estate commodities from the government stable inadequate. The private
sector, now with surplus capital at their disposal, started seeking a larger role
in the development of urban real estate commodities. The neoliberal state
started exploring alternatives to the land acquisition method for creating a
pool of urbanisable land to be exploited by real estate investors and private
developers, which culminated in the framing of new State policies for creat-
ing an urbanisable land bank such as land pooling, transferable development
rights, transit-oriented development, reclassification of zones and land use,
and liquidation of public landholdings.

Land pooling policy

Land pooling policy (LPP) is a land aggregation policy being taken up by
various state governments in India, which aims at pooling of land parcels
owned by private landowners in urban villages, urbanisable areas, and
urban extensions for the development of urban sectors. With the State act-
ing as a facilitator and regulator of such land-pooling schemes on the PPP
model, LPP works as an alternative to the land acquisition method and
supplies large, contiguous, urbanisable land parcels for the development of
urban real estate commodities and city-level infrastructure. Depending on
the purpose, different models of LPP have been adopted by different states.
The cases of Delhi and Andhra Pradesh are discussed here.

Case study I – Delhi

The Ministry of Urban Development (Delhi Division) has recently notified
an amendment in the Master Plan for Delhi-2021 (MPD-2021) to adopt the
LPP for Delhi (Delhi LPP).5 The Delhi Development Authority (DDA), the
nodal agency for implementation of Delhi LPP, has also notified the regula-
tions for operationalisation of Delhi LPP.6
Under Delhi LPP, the private sector has been entrusted with the role
of pooling contiguous land parcels from private landowners in urbanis-
able areas of Delhi’s 95 urban villages lying in its urban peripheries and
developing physical and social infrastructure thereon. Under this concept,
landowners or groups of landowners pool land parcels free of cost for the
development of urban sectors. Once a minimum of 70 contiguous land par-
cels have been pooled, free of encumbrances, such pooled land becomes
 Real estate reforms in urban spaces 55
eligible for development under the LPP. For an integrated planning of a
sector, 40 percent of the pooled land will be made available to DDA and
service-providing agencies for the development of the city-level infrastruc-
ture (external development) as per zonal development plan (ZDP) and sec-
tor layout plans approved by DDA. The remaining 60 percent of the pooled
land will be handed over by DDA post development of the city-level infra-
structure to the consortium7 of the participating landowners or the devel-
oper entity8 for the development of residential (53 percent), commercial
(5 percent), and public/semi-public (PSP) facilities (internal development) as
per the sector plans and ZDP approved by DDA. The external and internal
development charges will be borne by the participant landowners. Only the
consortium or developer entities registered under RERA9 will be eligible for
return of separate land parcels by DDA, for the final development. How-
ever, there is no minimum land size prescribed for being eligible to partici-
pate in the land pooling scheme.
A maximum of 200 floor area ratio (FAR)10 on the returned land has been
permitted for development by the consortium or developer entity. They are,
however, required to utilise a mandatory FAR of 15 percent over and above
the maximum permissible residential FAR for the development of hous-
ing for economically weaker sections (EWS). Delhi LPP, however, does not
provide for the interim rehabilitation and resettlement of small landowners
who pool their land parcel under the scheme.

Case Study II – Andhra Pradesh

The Andhra Pradesh Reorganization Act, 2014, laid the foundation for
reorganisation of the existing state of Andhra Pradesh which prioritised the
formation of a new capital city for the state. The Government of Andhra
Pradesh (AP Government) enacted the Andhra Pradesh Capital Region
Development Authority Act, 2014 (APCRDA Act) for the declaration of
the new capital area for the state and establishment of the Andhra Pradesh
Capital Region Development Authority (APCRDA) for the planned devel-
opment of the greenfield capital region and capital city area for the state
known as ‘Amaravati’. The APCRDA Act provides for the development of
Amaravati based on two modes of land aggregation – voluntary land pool-
ing scheme (LPS) and land acquisition under RFCTLARRA.
The LPS aims at facilitating the AP Government to consolidate the land
parcels owned by individuals or group of owners (mostly farmers) in the
city capital area, identified between the cities of Vijayawada and Guntur on
the banks of the river Krishna covering an area of 122 square kilometres,11
through voluntary transfer of their ownership rights therein to CRDA. The
CRDA takes responsibility for developing the city-level infrastructure on
the pooled land and allotting residential or commercial plots developed on
the pooled land through a draw of lots to the original landowners propor-
tional to their surrendered land parcels along with land-pooling ownership
certificates and other benefits as provided in Table 3.1. Ownership of the
Table 3.1 Returnable land and benefits to landowners per 0.4 hectares of land
pooled

Returnable land Category Social benefits

Dry land Jareebu land (wetland) AP Government to

Patta (leasehold) provide:
Residential 1,000 sq. yds. 1,000 sq. yds. 1 Pension of INR
Commercial 200 sq. yds. 300 sq. yds. 2,500
Assigned a month per family
Residential 800 sq. yds. 800 sq. yds. for a period of
Commercial 100 sq. yds. 200 sq. yds. ten years to all
Yearly payment 30,000 50,000 landless
for ten years families through
(INR) a capital region
Yearly increase 3,000 5,000 social security
(INR) fund
One-time 50,000 2 One-time
additional agricultural loan
payment for waiver of up to
gardens like INR 0.15 million
lime/sapot/ per family to
guava (INR) farmers
3 Interest-free loan
of up to INR
2.5 million to all
poor families for
self-employment
4 Housing to
houseless people
as well as those
losing houses
in the course of
development
5 Free education
and medical
facilities to
all those
residing as on8
December 2014
6 Old-age homes
7 Enhancement in
the limit under
NREGA up to
365 days a year
per family
Source: G.O.MS.No.1, MA & UD (M2) Department dated 01.01.2015, Government of
Andhra Pradesh
 Real estate reforms in urban spaces 57
excess land, remaining after the allotment of the developed plots to such
landowners, vests with CRDA. Development of the residential or commer-
cial plots allotted to the original landowners under LPS is to be carried out
by the landowners themselves at their own cost.
The AP Government has empowered itself under the APCRDA Act to
acquire the land parcels of landowners – who fail to give consent for pooling
their land parcels – under RFCTLARRA. The APCRDA Act also contains
penal provisions, including imprisonment of any person who obstructs the
implementation of LPS or such land acquisition.

Transferable development rights

Transferable development rights, or tradable development rights (TDR), is a
zoning tool used by the State as an alternative to land acquisition, to increase
the vertical and horizontal densities in planned areas of a city and its suburbs.
It is a mechanism used by urban local bodies (ULBs) in India for making
available additional FAR, tradable in market, in the form of TDR certificates
to owners who have surrendered their land to ULBs. TDRs can be used at
some other planned areas of a city or its suburbs for construction of built-up
space over and above the normally available FAR in such areas. TDR, in other
words, enables the transfer of development potential, partly or fully, from
one plot to another. By issuing TDRs, the government aims at implementing
planned development of urban spaces. Such planned development may, inter
alia, include development of housing (including affordable housing and slum
rehabilitation), commercial spaces, and city-level infrastructure.

Transit-oriented development
Transit-oriented development (TOD) is a zoning tool used by the state gov-
ernments in India which creates opportunities for restructuring of urban
spaces in a city by incentivising optimum utilisation of available developed,
semi-developed, or developable urban spaces along transit corridors such as
the mass rapid transit system (MRTS), metro rail corridors, and bus rapid
transit system (BRTS). TOD aims at integrating land use and transport plan-
ning to develop planned urban growth centres by generating a supply of
vertical urban spaces with additional FAR over and above what is gener-
ally available along transit corridors. TOD helps in achieving high-density,
mixed land use by generating a supply of additional vertically developable
urban spaces, further opening up opportunities for development of urban
real estate commodities by private developers.

Reclassifying zones and land use

The policy of carrying out strategic amendment in the city master plans
by the state governments for re-classification of existing zones and land
58  Ray Sharat Prasad
use – from agricultural to residential or from residential to commercial
or from industrial to residential/commercial (mixed use) – facilitates the
generation of supply of urban land parcels for development by bringing
peripheral urban villages within urbanisable zones and also allows for the
redevelopment of land (e.g., falling under industrial zone) within urban
areas for residential or commercial use. It complements the objectives of
the TDR policy, the TOD policy, the policy for development of low-density
residential plots12 (in Delhi), and the policy for development of low-density
residential country homes13 (in the state of Punjab).

Liquidation of public landholdings

Another method adopted by the central and state governments for generat-
ing a supply of urban land parcels is liquidating urban land parcels held by
various government and quasi-government departments and loss-making
public sector undertakings (PSUs) for development of urban real estate com-
modities under the PPP model.

Attracting investments in the urban real estate sector

Given the limited resources of the state, attracting private investments for
development of urban real estate commodities becomes imperative for a
state adopting a neoliberal approach of governance. Such investments are
required at two stages – at the stage of land aggregation or acquisition and
at the stage of construction and development of the urban real estate com-
modities. The state is playing a vital role in generating a supply of urban-
ised land and urban real estate commodities by creating an ecosystem for
attracting investments from private investors and developers through sys-
tematic liberalisation of foreign direct investment (FDI) policy, single win-
dow clearance system, creation of Real Estate Investment Trusts (REITs),
modification of city master plan and zoning policy, conversion of land use,
and strategic development of urban infrastructure.

FDI policy
FDI is, inter alia, a source of non-debt financing for greenfield or brownfield
projects across various sectors, including the real estate sector. It is one of
the major sources for attracting private capital for generating a supply of
urbanized land and development of urban real estate commodities. During
the years 2010, 2011, and 2017–18, a trend towards systematic liberalisa-
tion of the FDI policy in the real estate construction and development sector
occurred.
In 2010, 100 percent FDI in an Indian developer company (Investee
Company) under the automatic route was permitted, subject to minimum
capitalisation norms. However, a foreign investor was required to meet
 Real estate reforms in urban spaces 59
stricter exit conditions from a real estate project. Without prior government
approval, foreign investors were not permitted to leave a real estate project
for three years from the date of completion of minimum capitalisation by
an investee company. Additionally, at least 50 percent of a real estate pro-
ject was required to be developed by the investee company within a period
of five years from the date of obtaining all statutory clearances to allow a
foreign investor to exit from such a project. In 2011, the conditions of exit
for a foreign investor from such FDI projects were relaxed to some extent.
A foreign investor was now also permitted to make a tranche-wise exit from
such a project, subject to its completion.
In 2017–18, the norms for making FDI in such projects were further
relaxed, which has made the infusion of FDI by foreign investors in real
estate projects even more attractive. Under the new FDI policy, the criteria
of minimum area development by the investee company and the norm of
minimum capitalisation of the investee company with FDI have been done
away with. A foreign investor is now permitted to make a tranche-wise exit
from a real estate project even before it is completed, provided that a lock-
in-period of three years, calculated with reference to each tranche of for-
eign investment, has been completed. Further, transfer of stake by a foreign
investor to another non-resident without repatriation of FDI investments,
has also been permitted, without there being requirements of meeting any
investment lock-in period or obtaining prior government approval.
With the FDI norms being liberalised to a great extent, capitalisation of
large real estate projects in India through private investments has become
easier. The FDI equity inflows in the real estate construction and devel-
opment sector have increased from INR 7.03 billion in 2016–17 to INR
34.72 billion in 2017–18 (Ministry of Commerce and Industry 2018: 2),
which is among the highest FDI equity inflows in a particular sector in India.

Single window clearance system

For development of a real estate project in India, a number of time-consuming
pre-construction, construction-stage, and post-construction approvals are
required to be obtained by a developer from the central as well as from
various state government authorities.14 This is one of the main reasons for
corruption and delays in completion of real estate projects in India that
result in exponential cost escalation, which eventually gets passed on to
consumers. The number of such approvals can be as high as 40 (Rohokale
2017), depending upon in which state a real estate project is being devel-
oped. Under the ‘ease of doing business’ policy adopted by the Government
of India, the Central Government, and the state governments, in coordi-
nation with each other, have started implementing the policy of a ‘single
widow clearance system’, which enables a developer to obtain approvals
through a single window and through a common application. Many states
have passed their own single window clearance acts. By doing this, the state
60  Ray Sharat Prasad
aims to make investments in the real estate sector more attractive for private
investors and developers.

Real Estate Investment Trusts

The Finance Minister in his budget speech for the financial year 2014–15
proposed the introduction of real estate investment trusts (REITs), which
have been successfully used as an instrument for pooling of investments
by several countries for the development of real estate projects. To imple-
ment REITs, the Securities and Exchange Board of India (SEBI) has framed
the SEBI (Real Estate Investment Trusts) Regulations, 2014 (SEBI REITs
Regulations). SEBI REITs Regulations were subsequently amended in 2016,
2017, and 201815 to make them more investor friendly.
REITs, in India, are trusts registered under the SEBI REITs Regulations,
which own real estate assets and other permitted assets (REIT assets),
whether directly or through a holding company16 (holdco) or special pur-
pose vehicle (SPV).17 REITs issue units18 against REIT assets to the inves-
tors. The main actors involved in the creation and management of REITs
and issuance of REIT units to investors are the sponsors,19 REIT, trustees,20
holdco and/or SPV, valuer,21 and manager.22 To explain a typical structure
involved in setting up REIT, the case of ‘Embassy Office Parks REIT’ is
shown in Figure 3.1.
SEBI has also issued guidelines for the public issue of the units of REITs
(SEBI, 2016).23 REIT units are tradable on a recognised stock exchange on
which they are registered, which enables a quick exit for the investors in the
secondary market, thereby making investments in these units attractive for
investors.
REITs are permitted to invest, inter alia, not only in the completed real
estate projects but also in the under-construction projects. Recent amend-
ments in the FDI policy have also permitted REITs to be investment vehicles
for attracting FDI in real estate projects (Ministry of Commerce and Indus-
try 2017).

Creating urban infrastructure

The Ministry of Housing and Urban Affairs (MoHUA), Government of
India, has recently launched the Smart City Mission (SCM),24 which aims
at developing an entire urban eco-system, which is represented by the four
pillars of comprehensive development – institutional, physical, social, and
economic infrastructure. SCM aims to promote cities that provide core
infrastructure and give a decent quality of life to its citizens, a clean and
sustainable environment, and application of smart solutions25 to help them
meet their socio-economic aspirations, and advocates creation of compact
areas which can be a replicable model to other aspiring cities in various
regions of the country. The convergence of various city-planning schemes of
the government such as the AMRUT,26 HRIDAY,27 development of transit
 Real estate reforms in urban spaces 61

Unit holders (including

sponsors and sponsor
groups)

Units Distributions

REIT management services Embassy Holds REIT assets in trust for unit holders
benefit REIT
Trustee

Trustee
REIT management fee

Trust fee

Shareholders’ debt/equity/
equity-linked investments

Property Net distributable cash flows

management
Trustee
services Property management fee

Figure 3.1  Typical structure involved in setting up REIT

Source: Draft offer document filed by ‘Embassy Office Parks REIT’ with SEBI on Septem-
ber 24, 2018, for listing of its units on the stock exchanges. See: Embassy Office Parks REIT
(2018, September 24). Retrieved October 15, 2018, from the SEBI website www.sebi.gov.in/
sebiweb/home/HomeAction.do?doListing=yes&sid=3&ssid=74&smid=80

corridors and transit-oriented development, mixed land use, land pooling

and reconstitution, zonal planning, conversion of land use, and the like are
part of the SCM.
Strategic models for area-based development under the SCM involve city
improvement (retrofitting), city renewal (redevelopment), city extension
(greenfield development), and pan-city development (application of smart
solutions).

Generating demand in urban real estate

through regulatory reforms
The State has taken up the neoliberal role of a facilitator in creating a con-
ducive environment for stimulating demand for urban real estate commodi-
ties among investors and consumers, in particular, among the sizeable urban
62  Ray Sharat Prasad
middle-class population, who traditionally consider owning and investing
in urban real estate commodities as a tool for creating opportunities and
possibilities themselves to meet their socio-economic aspirations. Through
a series of legislative actions and policies, the State not only aims to bring
legal certainty around the title and ownership of land parcels and urban
real estate commodities, but also aims to provide adequate protection to the
investments made by such investors and consumers.

Pre-RERA and post-RERA regime

Before 1970, no specific legislation existed which could provide adequate
protection for investments made by investors and consumers in urban real
estate commodities and to their ownership rights therein. Citizens relied on
generic legislations28 to protect their investments and ownership rights.
The enactment of the Maharashtra Apartment Ownership Act in 1970
brought urban real estate commodities within its ambit for the first time,
which provided a framework for the regulation of urban real estate com-
modities and protection of consumers’ investments and the ownership rights
therein. Subsequently, other states in India enacted their own apartment
ownership acts, providing similar rights and protections to the consumers of
urban real estate commodities. However, these acts lacked stringent liability
and penalty provisions for erring developers and failed to establish a dedi-
cated forum to adjudicate disputes between the consumers and developers.
The aggrieved purchasers had no other option than to approach civil courts
to seek remedies against such erring developers, which has historically been
a time-consuming procedure in India.
With enactment of the Consumer Protection Act, 1986, and subsequent
amendments made thereto in the years 1993 and 2002, the legal framework
for the protection of the rights of consumers of urban real estate commodi-
ties took a major leap forward. This Act provided consumer dispute redres-
sal forums at the district, state, and national levels for the settlement of
disputes, and also provided better protection for end-consumers of residen-
tial urban real estate commodities by expanding the definition of ‘services’
to include ‘housing construction’. However, the said being a general act fell
short of proving to be a dedicated act protecting the rights of consumers of
urban real estate commodities.
To address this concern, the Central Government enacted the Real Estate
(Regulation and Development) Act, 2016 (RERA), which aims to regulate
and promote the real estate sector in India and ensure the sale of urban real
estate commodities in an efficient and transparent manner to protect the
interests of consumers thereof. It provides for the establishment of an adju-
dicating mechanism for speedy dispute redressal arising out of real estate
sale transactions and matters connected therewith or incidental thereto.
All the states in India have adopted RERA through appropriate legislative
action, except West Bengal.29 Most of the state governments have constituted
 Real estate reforms in urban spaces 63
the real estate regulatory authority (Authority) and the real estate appellate
tribunal (Appellate Tribunal) under their respective rules for adjudication
of disputes between the consumers and developers of real estate projects.
Appeals from the decisions of the Authority lie before the High Court hav-
ing appropriate jurisdiction.
RERA restricts the promoter of a real estate project or any ongoing real
estate project30 where the area of land proposed to be developed is 500
square meters (598 square yards) or above, or the number of apartments
proposed to be developed in such a real estate project is eight or above
(inclusive of all phases), from advertising, marketing or offering for sale,
or inviting persons to purchase any plot, apartment, or building without
registering the real estate project with the Authority. Any violation of the
said provision attracts a penalty up to 10 percent of the estimated cost of
the real estate project.31 Any non-compliance by the promoter with the said
provision risks imprisonment for a term of up to three years or a fine up to
a further 10 percent of the estimated cost of the real estate project, or both.
RERA obligates the promoter to submit details of the real estate project
for registration along with a declaration regarding his/her legal title to the
project land, timelines for project completion, and the deposit of 70 percent
of the amounts realised from the allottees, from time to time, against the
allotment of apartments or plots in a separate bank account to cover the
cost of construction and the land cost.
In case of failure of the promoter to complete the project and handover
the allotted apartment or plot to the allottee within agreed timelines, the
allottee, at his/her option, has the right under RERA to withdraw from the
project and seek a refund of the amount paid by her/him to the promoter
along with interest and compensation, or to seek payment of interest as
determined by the Authority on such amount paid by her/him to the pro-
moter for every month of delay in handing over of the possession of such
allotted apartment or plot to her/him by the promoter (section 18 of RERA).
In a plethora of cases decided by the Authorities, including in the states
of Maharashtra and Haryana, the allottees of the apartment or plots in
real estate projects which have not been completed within the agreed time-
lines have been awarded interest ranging from 10.15 to 10.45 percent per
annum on the amounts paid by them to the promoter from the date of
such allotment.32 In cases in which allottees have demanded withdrawal
from the projects on account of delay in completion, promoters have
also been directed by the Authority to refund the allotment amounts to
such allottees together with interest and compensation33 (Ramnani 2018).
However, in a few cases34 decided by the Authority, where at least 40 per-
cent of a real estate project has been completed, even though there has
been a delay in completion of the project beyond the original proposed
timelines, the Authority has, as a matter of policy, denied refund of the
allotment amounts to the allottees even though they are legally entitled to
seek refund at their option under RERA. In doing so, the Authority seems
64  Ray Sharat Prasad
to have taken a neoliberalist approach to protect the private investments
of the promoters by offering them another chance to complete the project,
which is contrary to the strict interpretation of the provision contained in
section 18 of RERA. The reason given by the Authority for this is that to
protect the interest of one person, one cannot jeopardize the interests of
scores of others (ibid.).
In the Simmi Sikka case35 (Ramnani 2018; Sinha 2018), the Haryana
Authority extended the scope of applicability of RERA (other than the regis-
tration provisions) to all real estate projects, whether registered under RERA
or not, which have already been completed before enactment of RERA, thus
bringing all delayed real estate projects and the structural defects therein
within its ambit.

Other relevant legislations

Insolvency and Bankruptcy Code, 2016 (IBC) together with its first36 and
second amendments,37 opened a new avenue for the allottees of apart-
ments38 or plots, other than RERA, to seek refund of the amount (with
interest) paid by them to the real estate promoters towards allotment of
apartments or plots. IBC has recognised such allottees39 (as defined under
RERA),40 as the financial creditors, to whom the promoters are deemed
to owe financial debt41 until the title of the allotted apartments or plots is
transferred to the allottees. This entitles such allottees, either individually
or jointly, to file an application with the National Company Laws Tribu-
nal (NCLT) for initiating a corporate insolvency resolution process against
the defaulting promoter companies (section 7 of IBC). Further, they have
been allowed representation and voting rights in the committee of creditors
(COC) constituted by the interim resolution professional (which, inter alia,
appoints a resolution professional and approves the resolution plan against
a defaulting promoter company (corporate debtor) to be submitted with
NCLT (section 30 of IBC). The NCLT may order the liquidation of the cor-
porate debtor in case it is not approved by COC within the prescribed time
or the COC-approved resolution plan is rejected by NCLT. Upon liquida-
tion of the corporate debtor, the allottees (as financial creditors) get priority
in the order of distribution of the proceeds from the sale of the liquidation
assets of the corporate debtor over the operational creditors and other credi-
tors (section 53 of IBC).
IBC, however, provides for the declaration of a moratorium by NCLT
upon submission of application under IBC by a creditor against a corpo-
rate debtor till completion of the corporate insolvency resolution process
(sections 13 and 14 of IBC), during which period the institution of suits or
continuation of pending suits or proceedings against the corporate debtor,
including complaints under RERA and execution of any judgment, decree,
or order in any court of law, tribunal, arbitration panel, or other authority
against the corporate debtor, remain suspended.
 Real estate reforms in urban spaces 65
DLF case
The Competition Act, 2002 (Competition Act) also protects investments
made by consumers in urban real estate commodities against developers
who hold a dominant position in the market and impose unfair and dis-
criminatory conditions in the sale agreements. In the DLF case,42 the Com-
petition Commission of India (CCI) held DLF guilty of contravening the
provisions of the Competition Act,43 directly and indirectly, as it was held
to impose unfair or discriminatory conditions in the sale of services44 by
formulating and imposing unfair conditions in its agreement with buyers
for sale of flats. CCI finding DLF guilty of abusing its dominant position in
the market imposed a penalty of INR 6.3 billion on it and directed DLF to
cease and desist from formulating and imposing such unfair conditions in
its sale agreements.

Land titling
In India, the provision of land title certificates to landowners, which are
guaranteed by the government as conclusive proof of their ownership in
urban plots, is still a work in progress. At present, generally, title of a person
to urban land is derived from the sale deed registered with the sub-registrar
of assurances in accordance with the provisions of the Registration Act,
1908. Such sale deed merely grants a presumptive title to a person in the
land.
However, in April 2016, the state of Rajasthan passed the Rajasthan
Urban Land (Certification of Titles) Act, 2016, which provides for certifica-
tion of urban land titles. Further, in Maharashtra, urban local bodies (ULBs)
have started issuing malmatta patrak, or property registration card (prop-
erty card), to landowners of plots in urban areas. The property registration
card is a government-certified title document, inter alia, based on the city
survey and the cadastral mapping exercise conducted by the state govern-
ment. The state of Gujarat is also in the process of issuing property regis-
tration cards to owners of urban real estate commodities. Property cards
and land title certificates bring legal certainty to the titles of landowners in
urban real estate commodities.

Whether trickle-down effect is for all?

Post-1991, the neoliberal approach adopted by the State in the develop-
ment of urban real estate can be clearly seen. This approach assumes that
the economic growth generated by the establishment of a robust market
in urban real estate commodities will allow all stakeholders – landowners,
developers, investors, and consumers – to capitalise on the opportunities,
socio-economic benefits, and prosperity associated with it. The moot ques-
tion which needs to be analysed is how far this assumption is true.
66  Ray Sharat Prasad
Let us first examine the case of private developers, land aggregators, and
investors. The neoliberal regulatory and policy reforms introduced by the
State in the real estate sector, which, inter alia, aims at generating a supply
of value-added developable, urbanisable land to be developed privately, will
be beneficial for private developers, land aggregators, and investors with
surplus capital. It will facilitate creation of opportunities and possibilities
for them to maximise returns on their investments. It will lead to creation
of wealth in fewer hands and ‘restoration of class power and in particular,
the restoration of class power to very privileged elite’ (Harvey 2007: 12).
Further, such neoliberal reforms will also be beneficial for the urban
upper- and middle- class population with means. With greater legal cer-
tainty around title and ownership in urban real estate commodities in place,
they would be encouraged to make investments in value-added urban real
estate commodities with better city-level infrastructure – both for their own
consumption as well as for seeking returns on their investments, either
through speculation or by capitalising on the rentals. The urban middle
class, in particular, will see this as a prospect for improving their quality of
life by treating this as an opportunity to own value-added urban real estate
commodities in a city with high-class city-level infrastructure. Owning such
urban real estate commodities would also help them to meet their aspira-
tions of climbing up to the next level on the socio-economic ladder. Such
reforms will also open up more employment opportunities in urban areas,
particularly in the real estate sector and other related service sectors, for the
urban middle-class population – both skilled and semi-skilled.
This may not be the case for the urban lower middle-class and the urban
poor (mostly unskilled) without means, who, as a by-product of rapid
urbanisation, will get further marginalised and impoverished (Pádraig and
Owusu 2016). They will not only be dispossessed of their small landholdings
and their dwelling place, but also become detached from the sources of their
livelihood. Such dispossession and detachment will occur not only within
the city limits but also in urban villages and urban extensions. Given the
often dramatic effects of land loss on people’s livelihood, combined with the
difficulty in compensating for non-monetary values, the promise of material
compensation by the State – politically important in eliciting compliance – if
and when broken, will typically be too late for the disposed to get their land
back (Levien 2018: 19). Further, recent regulatory reforms, such as RERA,
IBC, and the Competition Act, which aim to bring legal certainty around
ownership and title in urban real estate commodities, are relevant for those
who own or who have the means to own urban real estate and certainly not
for the urban poor who are deprived of such a luxury.
In this context, Delhi LPP, as discussed earlier in this chapter, is inherently
biased towards cash-rich private land aggregators, developers, and investors
and promises them high returns on their investments at the cost of small
landowners and farmers. Even before Delhi LPP was notified, developer
entities have managed to lure landowners (mostly farmers and unskilled
 Real estate reforms in urban spaces 67
workers) living in the villages situated in Delhi’s urban peripheries to part
with their small landholdings at a much lower price than such land would
have fetched post-development under the land pooling scheme (Baruah
2018). Further, many farmers have also sold their small landholdings to
developer entities as it has become difficult for them to carry out agricul-
tural activities thereon because of an acute water shortage and a change in
crop patterns, with the State being unsupportive (Akram 2012). The policy,
by imposing external and internal development charges on participating
landowners for the development of urban sectors in such pooled land, has
made it impossible for poor landowners to participate individually in such a
scheme. Delhi LPP in its present form, it seems, may leave small landowners
and farmers dispossessed of their small landholdings and displaced, lead-
ing to impoverishment and marginalisation because they are detached from
their sources of livelihood.
Although AP Government’s LPS for the development of Amaravati pur-
ports to be a ‘voluntary’ land consolidation scheme, in reality landowners
have no choice but to participate in the scheme and surrender their land-
holdings, as those who refuse to consent to pooling face compulsory acqui-
sition of their land parcels under RFCTLARRA. Any resistance by them
attracts penal provisions under the APCRDA Act, including imprisonment.
Further, for their dispossession and displacement, they are promised (more
as an inducement and to legitimise dispossession) a paltry monetary com-
pensation and other socio-economic benefits (promissory in nature); it is
doubtful these inducements would ever see the light of day (Jitendra 2017).
The in-situ slum redevelopment and rehabilitation project at Kathputli
Colony in West Delhi undertaken by DDA in 2009 as a pilot project based
on the PPP model, is an illustration of how such an unplanned city renewal
model has led to dispossession and displacement of urban slum dwellers.
The colony was one of the oldest slums, housing puppeteers, acrobats, sto-
rytellers, folk dancers, and painters for nearly 40 years. In October 2017,
approximately 4,000 houses in the Kathputli colony were demolished to
give way to a slum redevelopment project by a private developer. In all,
2,800 EWS (economically weaker sections) flats were proposed to be allot-
ted to families in the slum redevelopment project within two years of their
eviction, provided they met the prescribed ‘eligibility’ criteria. In considera-
tion for constructing the EWS flats and to enable him to maximise the return
on his investments, the private developer was permitted (rather, incentiv-
ised) to build and sell 170 HIG (high income group) flats on an ownership
basis at a price determined by him and to lease the commercial built-up
area in the project equivalent to 10 percent of the total available EWS FAR
at market rates. The DDA never initiated any consultation process with or
sought consent from the affected slum dwellers before announcing the slum
redevelopment project, assuming that the slum dwellers would move out of
the Kathputli colony of their own volition on the inducement of allotment
of EWS flats in the project. Approximately 10 years have elapsed since the
68  Ray Sharat Prasad
project was announced, and the slum dwellers who have been dispossessed,
displaced, and detached from their place of livelihood have yet to be allotted
dwelling units in the still-unbuilt slum redevelopment project. This aspect
has also been analysed in great detail by Raman’s study of the Kathputli
Colony case where she highlights how high-end residential and commercial
real estate projects are expanded in a city by use of the established tools of
urban planning at the cost of systematic undermining of the property rights
of squatters in land and access to housing in urban areas (Raman 2015).
Thus, the questions which require our attention are: Whether the State-
induced urban real estate regulatory reforms and policies, which aim to
achieve the neoliberal agenda of sustainable economic growth through
operation of market forces, will create possibilities and opportunities for
all? Whether they are merely aimed at protecting investments in urban real
estate as against guaranteeing housing for all? Whether they will help in
meeting the socio-economic aspirations of all? Has the State succeeded in
creating a mechanism through which the trickle-down effect will take place?
What are the opportunities created for the individual landowners and farm-
ers who are made to part with their small landholdings for urban develop-
ment and city renewal projects in Delhi and Andhra Pradesh? What are the
safeguards for small landowners and slum dwellers against rampant dis-
possession, wherein a private developer prospers and State agencies remain
unaccountable? These issues may be debated at length. However, the fact
that such State-induced urban real estate regulatory reforms and policies
have created opportunities, possibilities, and prosperity for private devel-
opers, investors, and the urban upper- and middle-class population, is not
debatable.
This new land-grab mechanism in neoliberal India represents the emer-
gence of a new regime of redistributing landed wealth upwards (Levien
2015). What it will result in is creation of ‘divided cities; gated communities
here, impoverished communities there’ (Harvey 2007: 12), and the cities
may get ‘dissolved into micro-states of rich and poor’ (op. cit.). The urban
rich would get richer, and the urban poor will get poorer. The trickle-down
effect and fulfilment of the socio-economic aspirations of all, in the com-
plete absence of the State’s redistributive role or its social welfare–oriented
managerial role (Searle 2016), will remain a myth.

Notes
1 Neoliberalism comes in many variations which attempt to be adaptive to specific
socio-political context.
2 Urban real estate commodities comprise residential and commercial projects and
include developed plots, apartments, office spaces, shops, buildings, and houses
in urban areas.
3 The Right to Fair Compensation and Transparency in Land Acquisition, Reha-
bilitation & Resettlement Act, 2013, No. 30 of 2013.
4 Emphasis added.
 Real estate reforms in urban spaces 69
5 See: Notification on modification of Chapter – 19 (Land Policy) of MPD – 2021,
bearing S.O. No – 5220 (E) issued by the Ministry of Urban Development (Delhi
Division) on October 11, 2018.
6 See: Regulations for Operationalisation of Land Pooling Policy, 2018, notified
by DDA vide notification bearing S.O.No – 5384(E) dated October 24, 2018.
7 ‘Consortium’ means a duly registered association having rights, duties, and obli-
gations in accordance with law, consisting of multiple landowners/developer
entities who have come together to pool land for unified planning, servicing, and
subdivision/share of the land or any other defined action for the development of
sectors under Delhi LPP as per prescribed norms and guidelines.
8 ‘Developer Entity’ means:
a An individual landowner who has pooled one or more parcels of land in the
sector, adding up to a minimum of 2 hectares.
b A group of landowners who have collectively pooled one or more land
parcels adding up to a minimum of 2 hectares and who have voluntarily
grouped together, through a valid, legally enforceable agreement, for taking
up development.
c An entity (developer/business/corporate entity) which represents a group of
landowners who have pooled one or more land parcels adding up to a mini-
mum of 2 hectares, through a legally binding agreement.
9 The Real Estate (Regulation and Development) Act, 2016
10 Floor area ratio (FAR) is the ratio of a building’s total floor area (gross floor
area) to the size of the piece of land upon which it is built.
11 See: G.O.MS.No.254, MA & UD (M2) Department dated December 30, 2015,
Government of Andhra Pradesh.
12 In the state of Delhi, vide notification no. K-12016/3/2008-DD-1-I dated
May 10, 2013, issued by the Ministry of Urban Development (Delhi Division)
published in the Extra Ordinary Gazette no. S.O. 1199(E) dated May 10, 2013,
as public notice, which amended the Master Plan for Delhi-2021 (MPD-2021),
low-density residential plots have been included in MPD-2021 as use premises
in the areas falling in urban extension (23 villages) and green belt (47 villages)
identified in the urban periphery of Delhi as low-density residential areas (which
earlier were categorised for agricultural/farm land use for development of farm
houses) vide notification issued by the Ministry of Urban Development (Delhi
Division) published in Extra Ordinary Gazette no. S.O. 1199(E) dated June 18,
2013. In such low-density residential areas, development of low-density residen-
tial plots with up to two dwelling units with a maximum FAR of 30 has been
allowed provided that the minimum plot size is 0.40 hectare.
13 In the state of Punjab, vide notification no. 17/09/2016–5hg2/2315 dated
August 26, 2013, issued by the Department of Housing and Urban Develop-
ment, Government of Punjab, development of low-density country homes resi-
dential development projects in Punjab have been permitted in the residential/
agricultural zone within master plan or within agricultural zone outside master
plan, The minimum land area requirement for such project shall be 12 hectares
which must be contiguous. The plot size permitted in the colony developed on
such land parcel shall range from 0.40 hectare to 1 hectare.
14 These approvals and no objection certificates (NOCs) include environmen-
tal clearances, forest clearances, clearances from Airports Authority of India,
Archaeological Survey of India, State Urban Art Commission, traffic and coor-
dination department, fire department, municipal authorities, panchayats, urban
local bodies, town and country planning department, national and state high-
ways authorities, utilities agencies, etc.
70  Ray Sharat Prasad
15 SEBI (Real Estate Investment Trusts) (Amendment) Regulations, 2017 and SEBI
(Real Estate Investment Trusts) (Amendment) Regulations, 2018.
16 The term ‘holdco’, or ‘holding company’, means a company or LLP (limited lia-
bility partnership) registered under the Limited Liability Partnership Act, 2008:
(i) in which REIT holds or proposes to hold controlling interest and not
less than 51 percent of the equity share capital or interest and which it
in turn has made investments in other SPV(s), which ultimately hold the
property(ies);
(ii) which is not engaged in any other activity other than holding of the underly-
ing SPV(s), holding of real estate/properties and any other activities pertain-
ing to and incidental to such holdings.
17 The term ‘special purpose vehicle’, or ‘SPV’, means any company or LLP:
(i) in which 21[either the REIT or the holdco] holds or proposes to hold con-
trolling interest and not less than 51 percent of the equity share capital or
interest;
(ii) which holds not less than 80 percent of its assets directly in properties and
does not invest in other special purpose vehicles; and
(iii) which is not engaged in any activity other than holding and developing
property and any other activity incidental to such holding or development.
8 The term ‘unit’ means a beneficial interest of REIT.
1
19 The term ‘sponsor’ means any person(s) who set(s) up the REIT and is desig-
nated as such at the time of application made to SEBI.
20 The term ‘trustee’ means a person who holds REIT assets in trust for the benefit
of the unit holders, in accordance with SEBI REIT regulations.
21 The term ‘valuer’ means any person who is a ‘registered valuer’ under sec-
tion 247 of the Companies Act, 2013 24[or as defined hereunder] and who has/
have been appointed by the manager to undertake both the financial and techni-
cal valuations of the REIT assets.
22 The term ‘manager’ means a company or LLP or body corporate incorporated in
India which manages assets and investments of the REIT and undertakes opera-
tional activities of REIT.
23 Vide circular bearing no. CIR/IMD/DF/136/2016 dated December 19, 2016
issued by SEBI, from SEBI website https://www.sebi.gov.in/sebi_data/attach
docs/1482144526306.pdf (Accessed on 25 March, 2020).
24 See: Smart Cities Mission (n.d.). Retrieved October 17, 2018, from the Smart
Cities Mission website http://smartcities.gov.in/content/
25 Examples of smart solutions are e-governance and citizen services (public infor-
mation grievance redressal electronic service delivery, video crime monitoring,
etc.), waste management (waste to energy and fuel, waste to compost, etc.),
water management (smart meters and management, leakage identification and
preventive maintenance, water quality monitoring, etc.), energy management
(smart meters and management, renewable sources of energy, energy efficient
and green buildings, etc.), urban mobility (smart parking, intelligent traffic man-
agement, integrated multi-modal transport, etc.), tele-medicine, tele-education,
incubation/ trade facilitation centers, skill development centers, etc.
26 AMRUT is a mission launched by the Government of India which aims to pro-
vide basic civic amenities and infrastructure in identified cities and towns such
as the water supply system, sewerage, septage, storm water drainage, urban
transport, green space, and parks to improve the quality of life for all. See: Atal
Mission for Rejuvenation and Urban Transformation–AMRUT(2018, Novem-
ber 03). Retrieved November 3, 2018, from the Ministry of Housing and Urban
Affairs website http://mohua.gov.in/cms/amrut.php
 Real estate reforms in urban spaces 71
27 HRIDAY is a mission launched by the Government of India which aims at the
development of core heritage infrastructure projects which include revitalisation
of urban infrastructure for areas around heritage assets identified /approved by
the Ministry of Culture, Government of India, and state governments. These
initiatives include the development of water supply, sanitation, drainage, waste
management, approach roads, footpaths, street lights, tourist conveniences, elec-
tricity wiring, landscaping, and other such citizen services. See: HRIDAY (2018,
November 03). Retrieved November 0, 2018, from the Ministry of Housing and
Urban Affairs website http://mohua.gov.in/cms/hariday.php
28 The Indian Contract Act, 1872; the Code of Civil Procedure, 1908; the Specific
Relief Act, 1963; the Indian Penal Code, 1860, and the law of torts (based on
common law principles evolved through judicial precedents)
29 West Bengal has its own real estate regulation and development act known as the
West Bengal Housing Industry Regulation Act, 2017.
30 Ongoing real estate projects are projects which have not received a completion
certificate from the competent local authority until May 1, 2017.
31 See: Himanshu Goyal and another vs. M/s LID Millennium Pvt. Ltd. and oth-
ers, Complaint No. RERA-GRG-299–2018. Retrieved October 19, 2018, from
https://haryanarera.gov.in/admincontrol/judgements/2
Shobhit Mehrotra vs. M/s LID Millennium Pvt. Ltd. and others, Complaint
No. RERA-GRG-422–2018. Retrieved October 19, 2018, from https://har-
yanarera.gov.in/admincontrol/judgements/2
32 See: Shobhit Gupta vs. M/s North Star Apartment Pvt. Ltd., Complaint No.
RERA-GRG-179–2018. Retrieved October 19, 2018, from https://haryanarera.
gov.in/admincontrol/judgements/2
Navita Srinet and another vs. M/s Supertech Ltd., Complaint No. RERA-
GRG-291–2018. Retrieved October 19, 2018, from https://haryanarera.gov.in/
admincontrol/judgements/2
Devender Singh vs. M/s Apex Buildwell Pvt. Ltd., Complaint No. RERA-
GRG-386–2018. Retrieved October 19, 2018, from https://haryanarera.gov.in/
admincontrol/judgements/2
Vinod Kumar Sehgal vs. Shree Prakash Creative Buildcon jv, Complaint No.
CC001000000000058. Retrieved November 04, 2018, from https://maharerait.
mahaonline.gov.in/searchlist/SearchJudgements?MenuID=1072
Pratik Kansara vs. Adani Estates Pvt. Ltd., Complaint No.
CC006000000000262. Retrieved November 4, 2018, from https://maharerait.
mahaonline.gov.in/searchlist/SearchJudgements?MenuID=1072
33 See: Goodtime Real Estate Development Pvt. Ltd. vs. Gautamchand Sale-
cha, Appeal No. AT006000000010332. Retrieved November 4, 2018, from
https://maharera.mahaonline.gov.in/Site/ViewPDFList?doctype=97tq_O7q
PXrjozI3HJW8ym4H/94flAFVK02cR7fFwEap28L1ekDyiJUi0MgB_cLD
BdaMt8qf2uTEc61idcTmAjlyT8nUZ/HEGjVWwuJz7qI=
Ashok Kumar Yadav vs. M/s KST Infrastructure Ltd., Complaint No. RERA-
GRG-17–2018. Retrieved November 4, 2018, from https://haryanarera.gov.in/
admincontrol/judgements/2
34 See: Ranjana Goyal & another vs. M/s Emaar MGF Land Ltd., Complaint No.
RERA-GRG-360–2018. Retrieved October 19, 2018, from https://haryanarera.
gov.in/admincontrol/judgements/2
Arijit Chakarbarti vs. Ramprastha Sare Realty Pvt. Ltd., Complaint No.
RERA-GRG-31–2018. Retrieved October 19, 2018, from https://haryanarera.
gov.in/admincontrol/judgements/2
Anil Kumar Tyagi & another vs. M/s Sidhartha Buildhome Pvt. Ltd., Com-
plaint No. RERA-GRG-28–2018. Retrieved October 19, 2018, from https://
haryanarera.gov.in/admincontrol/judgements/2
72  Ray Sharat Prasad
Sunil Paul vs. M/s Parsvnath Hessa Developers Pvt. Ltd., Complaint No.
RERA-GRG-29–2018. Retrieved October 19, 2018, from https://haryanarera.
gov.in/admincontrol/judgements/2
35 See: Simmi Sikka vs. M/s Emaar MGF Land Ltd., Complaint No. RERA-
GRG-7–2018. Retrieved October 19, 2018, from https://haryanarera.gov.in/
admincontrol/judgements/2
36 Insolvency and Bankruptcy Code, 2016(Amendment) Act, No. 8 of 2018, which
came into effect on November 23, 2017.
37 Insolvency and Bankruptcy Code, 2016 (Second Amendment) Act, No. 26 of
2018, which came into effect on June 6, 2018.
38 See: Section 2 (e) of RERA.
39 See: Section 2 (d) of RERA.
40 See: Explanation (ii) to section 5 (8)(f) of IBC and section 2 (zn) of RERA.
41 See: Section 5 (8)(f) of IBC. The term ‘financial debt’ means a debt along with
interest, if any, which is disbursed against the consideration for the time value of
money and includes any amount raised under any transaction, including any for-
ward sale or purchase agreement having the commercial effect of a borrowing.
Any amount raised from an allottee under a real estate project is also deemed
to be an amount having the commercial effect of a borrowing. Explanation (ii)
to section 5 (8)(f) of IBC provides that the expressions ‘allottee’ and ‘real estate
project’ have the meanings respectively assigned to them in clauses (d) and (zn)
of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of
2016).
42 See: Belaire Owners’ Association vs. DLF Limited, HUDA & Ors. (Case No.
19/2010). Retrieved October 21, 2018, from the Competition Commission of
India website, www.cci.gov.in/sites/default/files/192010S_0.pdf
43 4. 3 (1) No enterprise or group shall abuse its dominant position.
(2) There shall be an abuse of dominant position under sub-section (1), if an
enterprise or a group:
(a) directly or indirectly, imposes unfair or discriminatory:
(i) condition in purchase or sale of goods or service; or
(ii) price in purchase or sale (including predatory price) of goods or
service.
44 Definition of ‘services’ under section 2 (1)(o) of the Consumer Protection Act,
1986, as amended in 1993, includes ‘housing construction’. The said definition
of ‘services’ was considered by CCI while deciding the DLF case.

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4 The forest rights struggle and
redefining the frontiers of
governance C.R. BijoyThe forest rights struggle

Dismantling hegemony,
restructuring authority, and
collectivising control
C.R. Bijoy

The forest in India has been a contested terrain, often violently, since the
colonial period. The colonisation of the forests and her peoples continued
into the post-independence period, and progressively intensified, threaten-
ing their expulsion en masse. That is when the struggle for democracy in
the forest burst out, six decades after India becoming a ‘democracy’. By
then, India had adopted and come under the grip of neoliberalism, with an
insatiable thirst for capital to secure forest and its resources for itself, com-
ing into conflict and competing with forest dwellers’ aspirations for survival
with dignity. What follows is a narrative of how this is being played out
in the governance arena against the backdrop of its brief history from the
colonial era.

Of belonging to the land: a web of relationships

Historically, customary and traditional rights to land and natural resources
expressed themselves as individual rights, use rights, and territorial rights in
varied forms. In pre-colonial India, these were built upon the rigid, stratified
caste system, entailing unequal power distribution that underpinned differ-
ential use of, access to, and control over natural resources. The economic
dynamic of subjugation and exploitation through feudal rent was built over
this caste edifice, with land being divided into Jagirs, a type of feudal land
grant by rulers allotted to Jagirdars1 who in turn allocated to subordinate
Zamindars2 who are hereditary, to extract the surplus from peasants as tax.
The Adivasis stood outside the caste order and hence beyond the pale of
the caste-based feudal order. The forested regions and the forest dwellers,
again primarily the Adivasis, were, however, relatively distanced and free
from this revenue-seeking regime, with the collection of revenue extended
mostly to timber and non-timber forest products (Ghosal 2011: 107–116)
that were extracted to be transported and traded.
76  C.R. Bijoy
The Adivasi-inhabited regions, for the most part the forested regions
of the Indian sub-continent, were essentially self-governing realms – their
ancestral domain,3 even though nominally part of various kingdoms. The
manner in which they related to the land – as belonging to the land – was
through a complex mosaic of rights that were both material and relational,
and temporal and spiritual. Some were temporary while others were long
lasting. These rights spanned not just their historical terrain but also their
political, social, emotional, sacred, and existential domains, spanning gen-
erations dating back to the time when they settled there. These were not
merely their source of livelihood, but also the very source of their music,
song, dance, legends, myths, and rituals. Their governance system was natu-
rally non-centralised, non-hierarchical self-governing habitations with lat-
eral shared rights; their functions and governance linkages based on clans,
ethnicity, neighbourhood, and region to protect, conserve, and manage
the land and its diverse resources. The manner in which this manifested
also defined the relationship, whether convivial or contested, within and
between habitations and communities that constituted their realm. These
relationships effectively defined them as free people in sharp contrast to the
‘others’ distinguished by a graded system of subjugation through the caste
structure.
The impact of and response by forest dwellers to colonisation of forest
by the British, the internal colonialism that followed since independence,
and the strategy of dispossession unleashed in the neoliberal era need to be
understood from within the aforementioned complex web of relationship
that they have with their habitats and homelands. It is important to note
that most of these relationships cannot be commoditised in market terms
and, therefore, faced with being dispossessed, these traditional forest dwell-
ers affirmed and asserted this relationship, forcing the neoliberal state to
accede to this political and material space, at least in law.

The frontiers of governance: perpetuating colonial control

British incursions into the forests since the mid-eighteenth century for
extraction of timber and forest clearance for expanding cultivation soon
widened to physically taking control and regulating the forests with the
establishment of the Forest Department in 1864, the Forest Act in 1865,
the Indian Forest Service in 1867, and the Provincial Forest Service in 1891
to manage the forests through scientific forest management that was intro-
duced in 1871. Expansion of colonial control over forested regions led
to persistent resistance and revolts by the tribals4 right across the central
Indian tribal belt from the east to the west coast and the northeast since the
latter half of the 1700s. The British reconciled with these assertions for self-
governance and autonomy by enacting specific governance regimes (Bijoy
2008) such as the Scheduled District Act of 1874 and later the Excluded
and Partially Excluded Areas under the Government of India Act of 1935,
 The forest rights struggle 77
that excluded them from the purview of British laws while at the same time
incorporating both the forests and the non-forest parts of their territories
into the British empire. Regional laws too were enacted with similar intent
in varying degrees as the Wilkinson’s Rule (1837), the Inner Line Permit
under the Bengal Eastern Frontier Regulation (1873),5 the Santhal Pargana
Tenancy Act (1876), and the Chotanagpur Tenancy Act (1908). These were
the antecedents for the constitutional provisions of the Fifth6 and Sixth7
Schedule under Article 244, the special constitutional provisions such as
Articles 371A and 371G for Nagaland and Mizoram, respectively,8 and
state laws to prevent alienation of land and their restoration when alienated
(Bijoy et al. 2010).
Significantly the colonial response in the central Indian tribal belt was
the takeover and tightening of grip over the resource-rich forests while pro-
viding for relative freedom by keeping the non-forest lands, mostly under
subsistence agriculture with little scope of enhancing revenue collections,
free from its rule, and therefore de facto autonomous. However, the post-
colonial Indian State not only continued expanding its colonial control,
from 59.8 million hectares in 1949 to 70.67 million hectares in 2019 under
the forest regime, but also actually extended its administrative sway over all
non-forest lands and its resources by ensuring that the Fifth Schedule provi-
sions in the Constitution that empowered and mandated the office of the
Governor to protect those notified as Scheduled Tribes (STs) and their lands,
uniformly failing to fulfil the constitutional responsibility (Veeresha 2017).
The enactment of the Provisions of The Panchayats (Extension to the
Scheduled Areas) Act, 19969 (PESA, 1996), the result of a nationwide strug-
gle10 (Akerkar 1996), came as a remarkable respite to this legal and govern-
ance vacuum. This law, popularly called village self-rule law, by essentially
defining the powers of Gram Sabha (village assembly)11 over community
resources, land, and extending to the forests with ownership of minor for-
est produces, and control over development plans among others,12 actually
attempts to decolonize and democratize governance (a forerunner to legal
reforms regarding forest and land acquisition) for the first time. The major
burden of nation-building works, such as hydroelectric, thermal, and irriga-
tion projects, and mines and industries, was felt in these tribal hinterlands
through land acquisition and forest diversion for infrastructure, develop-
ment, and industrial projects, resulting in disastrous consequences through
large-scale displacement,13 environmental destruction, and pollution on the
one hand and enclosure conservation of forests on the other, disrupting lives
and livelihood. This maladministration and mis-governance (Government of
India 2008: 74–76) primarily around land-related issues, such as absentee
landlordism amidst widespread landlessness, non-recognition of tenancy, land
and forest rights; predatory development aggression resulting in displacement
and forced evictions by irrigation, hydroelectric, mining, and industrial pro-
jects; livelihood issues such as non-enforcement of minimum wages, denial
of access to land and natural resources by dominant sections; caste, class,
78  C.R. Bijoy
and gender-based social oppression; the oppressive forest, revenue, and police
departments; and the inaccessible and unresponsive justice system combined
with development deficit and extensive deprivation, led to the spread of left
wing extremism that promised quick justice. PESA, 1996, was identified as
the much-needed critical governance reform that could effectively transform
the region (Government of India 2008: 74–76). This Expert Group to Plan-
ning Commission, Government of India, even recommended that:

A comprehensive regulation should be made to the effect that no law

having a bearing on the provisions of PESA, read with the Fifth Sched-
ule and other provisions of the Constitution concerning tribal people,
shall extend to the Scheduled Area(s), until it is approved for extension
there in full or with such exceptions and modifications as may be noti-
fied by the Governor, in consultation with the Tribes Advisory Council
of the State.
(op. cit., 74)

PESA, however, remains a dead letter to date by design, effectively subverted

through acts of omission and commission by the central and state govern-
ments (Menon and Bijoy 2014: 9–12) such as non-compliance of state
laws with PESA, especially the non-adoption of the Sixth Schedule pattern;
delayed notification and in some states, non-notification of rules to opera-
tionalise the law; not harmonising the state subject laws with PESA; and no
meaningful consultation with the Gram Sabhas in cases of land acquisition
which is mandated by the law.
Significantly, the nation had by then embarked on liberalisation of its
economy with its New Economic Policy in 1991 that was market oriented,
with primacy of investment by private capital, both domestic and foreign.
The central Indian tribal belt, rich in natural wealth, was a prime target
for investment. This can be gauged from the unrests and resistance to dis-
placement that is perceived to have increased since 1991. While there is no
precise data on displacement, yet available data indicates a sharp increase
in, for instance, the number of displaced persons which rose from 21.3 mil-
lion between 1951 and 1990 (Government of India 2002: 458) to almost
60 million by 2008 (Mathur 2008: 3). Accumulation by dispossession that
held sway through expropriation of natural resources by non-recognition
of rights of communities over government-held lands and forests, and their
diversion, as well as by acquisition of titled lands and easing access to these
resources through licensing and leasing simply got further institutionalised
and legitimised with the call to meet the nation’s high-growth agenda. The
region transformed into a conflict zone, relegating democracy to the periph-
ery. From just nine states and 53 districts in 2001, the number of Left Wing
Extremism–affected districts are estimated to have increased to 180 in 2008,
to as much as 232 in 18 states out of 60114 districts then (Bakshi 2009).
In stark contrast, the northeast region has remained continuously autono-
mous since the pre-British period, with community control (STs numbering
 The forest rights struggle 79
12,415,054 or 27.3 percent of the total population of the region as per
the 2011 census) over their territories and their resources, including the
forested regions. This is because most of the northeast was tribal domi-
nated unlike the central belt which had large tribal enclaves amidst a sea
of non-tribals, difficult-to-access terrain, and the stiff resistance of tribal
communities to external incursions of any kind. The dawn of independence
saw militant uprisings, with demands ranging from total freedom to various
degrees of autonomy over specific territories and their resources, and their
governance, from statehood to autonomy under the Sixth Schedule15 of the
Constitution to other arrangements through state legislations.16 The region,
except Sikkim, remained restive and militarised all along. The traditional
self-governing structures of the tribal peoples in the Northeast have been
robust, with substantial control over their traditional or customary commu-
nal territories and resources, generally recognised by the formal governance
structure through the special constitutional provisions for Nagaland and
Mizoram, the Sixth Schedule, and the State enactments recognising various
forms of autonomy.17
The Look East Policy of the Government of India was launched in 1991,
the year that India began its neoliberal stride with the launch of the New
Economic Policy, for economic and strategic ties with Southeast Asia. This
was upgraded to the Act East Asia policy and expanded to the larger East
Asia in 2014. During this period, a slew of ceasefire and peace accords were
signed with numerous militant groups in an attempt to create a conducive
political atmosphere for enhanced connectivity of all kinds and investment
to exploit its as such unexploited rich natural resources, and to carve out
land routes for ease of trade into the East Asian region. The region, with its
unique history of community control over land, resources, and governance
rooted in customs and traditions along with layers of formal autonomy,
resulted in the region excepting Assam, having vastly superior socio-
economic and political empowerment of the tribals than the rest of the
country, often among the top rung on some human development indicators
(Nayak 2012). For instance, Mizoram, Tripura, Manipur, and Nagaland
are far ahead in literacy, in the female literacy rate and with the smallest
gap in the literacy rate between the ST population and the population in the
country. The Human Development Index of Mizoram was high compared
with the national level. These are a result of a history of continued assertion
of their territorial rights and successful resistance to physical incursion from
the outside, to the present day. The region faces a new form of invasion, of
predatory capital, that requires the demise of communitarian governance
systems and resource rights as a prerequisite for it to take root and reap
profits.

The colonisation of forests

The Permanent Settlement of 1793 began consolidating the intermediate
landed interests, the zamindari system, in most of India, while the ryotwari
80  C.R. Bijoy
system18 of 1820 dealt directly with the tenant peasant and the Mahalwari
system19 of 1833 with one or more villages dealt together for extracting
revenue. These effectively commenced the propertification of land, reducing
land rights to individual ownership centred on feudal landholdings, ignoring
the tenants and the actual cultivators on the one hand, and a whole range
and forms of collective and community rights of access and use on the other
(Haque and Sirohi 1986). Those lands that were not thus titled as private
property became State property, pushing large masses of the marginalised
further into the margins and at the mercy of the bureaucracy. In the absence
of a law that democratically determines the traditional and customary use of
these State lands, the declining marginal concessions, often critical to liveli-
hood, is now being denied to them as outlined subsequently, and completely
fenced off and made available in the market. These inhabitants are deemed
to be ‘encroachers’ on government land and evicted.
Further, under the eminent domain percept, the State extended its power
to expropriate private lands through the Land Acquisition Act, 1894.20 This
colonial frame was extended through its incorporation into other legisla-
tions to acquire land for specific purposes,21 continuing its foray even after
India became a democratic republic. The forest legislations that consolidated
into the Indian Forest Act, 1927, continues its reign over the forests even
now, with its power derived from this very same colonial land acquisition
framework to notify and take over lands as forests, and list out acts prohib-
ited in such forests, forest offences, and penalties imposed as punishments.
With this, traditional forest dwellers became encroachers and criminals in
their own homelands. The traditional and customary rights that forest com-
munities exercised became offences, or grossly restricted arbitrarily as con-
cessions by administrative diktat of the forest bureaucracy.
The British Colonial Government’s custodial and timber-oriented man-
agement in the first Forest Policy of 1894 effectively continued into the
post-independence period. The Forest Policy of 1952 recommended that
33 percent of the country be brought under forest cover while stressing
management and protection of forests and wildlife. The Wildlife (Protec-
tion) Act, 1972 (WLPA) extended the scope of the law to protecting wildlife
through a protected area regime primarily consisting of national parks as
effectively inviolate zones, and wildlife sanctuaries with restricted rights as
determined by the forest bureaucracy. ‘Forests’, a State subject, was brought
also as a subject matter of the Central Government by bringing it under
the Concurrent List in 1976 by the 42nd Amendment to the Constitution,
elevating the importance of forests. This was soon followed by the Forest
(Conservation) Act in 1980 (FCA) that required mandatory approval of the
Central Government before diversion of any forest land for a non-forestry
purpose by state governments, with provision for compensatory afforesta-
tion, preferably on a non-forest area. Significantly, this Act required that all
pre-1980 ‘encroachers’ be settled with the recognition of their land rights,
reiterated with a series of guidelines that the Ministry of Environment and
 The forest rights struggle 81
Forest (MoEF) issued in 1990,22 and eviction of all the rest. Instead, the
Act interpreted as the law that outlaws non-forestry activities in the forest
became the weapon to put an end to the slow and painstaking process of rec-
ognition of rights to land, effectively homestead land of pre-1980 ‘encroach-
ers’, while setting the ground to outlaw and evict the forest dwellers and
establish a fortress enclosure approach to forests to prevent the use and
access of forests to forest dwellers. Ironically, the Act was to regulate State-
initiated forest diversions23 for development and infrastructure projects by
making forest clearance orderly and in strict compliance with the object of
conservation. FCA 1980 slowed down the diversion rate from 0.15 million
hectares per annum between 1950 and 1980 to as low as 0.038 million
hectares per annum by 2004 (Ministry of Environment and Forest 2004: 2).
Forestry and Wildlife was shifted from the Ministry of Agriculture to a new
Ministry of Environment and Forests in 1985.
Meanwhile, the government notified that forests increased from 59.8 mil-
lion hectares (1949–50) to 76.74 million hectares (2019), covering 23.34 per-
cent of the total land area (Forest Survey of India, Ministry of Environment,
Forests & Climate Change 2019). Forest land under the Protected Area
regime also steadily increased from five national parks in 1970 to 104 cov-
ering 4,050,103 hectares. Wildlife sanctuaries increased from 62 in 1970
to 543 covering 11,893,180 hectares.24 Almost a quarter of the forest land
is under the Protected Area regime,25 curtailing severely or completely the
rights of forest communities and their access to forests. Carved from within
the protected area are the high-priority, tightly guarded Tiger Reserves, an
administrative category that has existed since the launch of Project Tiger in
1973, with nine reserves of 911,500 hectares. This number has now risen to
50 Tiger Reserves covering 7,102,710 hectares.26 The Tiger Reserves were
also elevated to a legal category with the amendment to the Wildlife (Protec-
tion) Act in 2006.
The Forest Policy, 1988, made a fundamental shift in its focus by bringing
in ‘meeting the requirements . . . of the rural and tribal populations’ while
aiming at the maintenance of environmental and ecological stability, and
mobilising people, including women, for achieving the new policy objec-
tives. A separate section entitled ‘Tribal people and forests’ was introduced,
recognising ‘the symbiotic relationship between the tribal people and for-
ests’, incorporating them into various parts of the policy, particularly in
‘Essentials of Forest Managements’,27 and ‘Management of State Forests’.28
But with the launch of neoliberal economic reforms in 1991, these policy
objectives were not only abandoned, but also underwent a drastic reversal
as never before in history, launching the final assault on the forest and its
peoples. The backlash that this generated turned the tide, forcing the State
to concretise the democratisation of the forest, freeing a large part of the
forest from colonial grip (more on that later).
Forest governance entered a new phase with the Writ Petition (Civil) No.
202 of 1995 filed by T.N. Godavarman Thirumulpad29 (popularly known
82  C.R. Bijoy
as the ‘forest case’) in the Supreme Court which sought its intervention to
protect a patch of forest in Gudalur of Nilgiri District in Tamil Nadu. The
Court, declaring that the forests across the country itself were under threat,
expanded the scope of the case, effectively taking control over forest govern-
ance (Chowdhury 2014: 177–189). This case led to the evolution of two
other laws, the Schedule Tribes and Other Traditional Forest Dwellers (Rec-
ognition of Forest Rights) Act, 2006 (FRA) and the Compensatory Afforesta-
tion Fund Act, 2016 (CAFA). The former, though unintended, was a direct
outcome of State aggression on the forest and her peoples that the Court
indirectly triggered, and the latter was an intended, direct, Court-induced,
and facilitated one. While FRA addresses the ‘historical injustice’ done to
the forest dwellers, CAFA constructed the vehicle to cover up State- and
court-sanctioned forest destruction, utilising the monies generated through
the Court-initiated and approved formula for monetisation of the forest land
that is to be diverted. The former was to serve primarily the collective inter-
ests of the forest dwellers, while the latter was to serve the interests of capital.

Framework of democratic governance for the forests

In the aforementioned T.N. Godavarman case, all that the Supreme Court
asked of the states on 18 February 2002 was to report on the steps taken
to clear the encroachments. The National Democratic Alliance govern-
ment issued the fateful order on 3 May 2002,30 stating that ‘approximately
1.250 million hectares of forest land is under encroachment’ and that ‘all
encroachments which are not eligible for regularisation’ as per the afore-
mentioned 1990 guidelines of the Ministry ‘should be summarily evicted’ by
30 September 2002. The unprecedented country-wide onslaught by the For-
est Department that followed resulted in evictions from 152,400.110 hec-
tares of forest land between May 2002 and March 2004.31 At least 300,000
forest dwellers would have been evicted during this period, leaving in its
wake, death, bloodshed, shattered lives, battered homes, and ravaged habi-
tations. Resistance to this illegal eviction spread, coalesced32 into a national
struggle, and forced the Central Government to concede that there had been
a ‘historical injustice’ because of the government’s failure to recognise the
traditional rights of the tribal forest dwellers which ‘must be finally rec-
tified’,33 the urgent need to recognise rights and the need to enact a new
law to surmount the legal impediments posed by existing laws and court
orders (Bijoy 2017: 73–93). Opponents in the forest bureaucracy, media,
and conservationists who unleashed a campaign that the forests were going
to be distributed to the forest dwellers and destroyed fell through because
of its lack of credibility. The FRA was enacted in 2006, and Rules (Minis-
try of Tribal Affairs & UNDP 2014) were notified in 2008. Forest officials
and hard-line conservationists immediately challenged FRA in various High
Courts and the Supreme Court and presently, all these cases are being heard
in the Supreme Court.34
 The forest rights struggle 83
About 100 million people live on land classified as forest (Fisher et al.
1997), while an estimated 275 million (World Bank 2006) to 350–400 mil-
lion (Ministry of Environment, Forests & Climate Change 2009) are forest
dependent. A total of 170,379 of the 587,274 villages are located in and
around forests and have a mixed population of 147 million. On record are
4,526 forest villages as of 2011, with a population of 2,206,011, of whom
1,332,265 are STs.35
This was also the period when legal recognition of tenurial rights over
land, forests, and fisheries, both individual and community rights, were gain-
ing traction globally as neoliberal economies unleashed hitherto confined
capital to seek primary resources worldwide for investment. Land and natu-
ral resource conflicts inevitably led to widespread resistance, particularly so
in the indigenous peoples’ territories across the world that got reflected into
the United Nation and its bodies, particularly its Working Group on Indig-
enous Populations since its establishment in 1982, the Permanent Forum
on Indigenous Issues that was established in 2002, and the United Nations
Declaration on the Rights of Indigenous Peoples adopted in 2007. In 2004,
FAO (Food and Agriculture Organization) embarked on the development of
guidelines on responsible tenure governance which culminated in the adop-
tion of ‘Voluntary Guidelines on the Responsible Governance of Tenure of
Land, Fisheries and Forests’ (FAO 2012) in 2012, the first comprehensive,
global instrument on tenure and its administration, prepared through inter-
governmental negotiations. The loss of legitimacy that the governments
faced when they unleashed repression on the resistance to resource grab in
aid of capital, and the consequent economic cost they and investors incurred
forced the states to take the primitive accumulation that ‘entailed taking
land, say, enclosing it, and expelling a resident population to create a land-
less proletariat, and then releasing the land into the privatised mainstream
of capital accumulation’ (Harvey 2005: 145–146, 149) to recognising tenu-
rial rights over natural resources so that these become a legally negotiable
instrument or commodity in the market on terms that aids accumulation
of capital. The World Bank (2006), recognising the huge untapped poten-
tial of forests in India, recommended unlocking ‘more of the value inherent
in Indian forests and boost local livelihoods while also supporting forest
conservation policy goals’ through strengthening forest rights. International
donors have also pitched in to ‘rally the business community around the
need to accelerate the implementation of FRA’ (Halais 2018).
A major shift in the institutional role, responsibilities, and functions of
the Ministry of Environment, Forest and Climate Change36 (MoEFCC)
(who had in 2004 acknowledged their failure in the Supreme Court)37 and
the Ministry of Tribal Affairs (MoTA) was made in 2006 with the non-
negotiable demand of the forest movement to keep MoEFCC away from
being the purveyor of the forest rights law. The Government of India (Allo-
cation of Business) Rules, 196138 was amended thus: ‘The Ministry of Envi-
ronment, Forest and Climate Change will be responsible for overall policy
84  C.R. Bijoy
in relation to forests, except all matters, including legislation, relating to the
rights of forest dwelling Schedule Tribes on forest lands.’39 This exception in
business was allocated to MoTA: ‘All matters including legislation relating
to the rights of forest dwelling Scheduled Tribes on forest lands.’40 Recog-
nising that the ‘forest rights on ancestral lands and their habitat were not
adequately recognised, resulting in historical injustice to the forest dwellers
who are integral to the very survival and sustainability of the forest ecosys-
tem’, it became ‘necessary to address the long standing insecurity of tenu-
rial and access rights of forest dwellers including those who were forced to
relocate their dwelling due to State development interventions’ (Preamble
of FRA).
Following the frame of PESA, the habitation-level Gram Sabhas in the
forest and its fringes are the statutory authorities in FRA to determine vari-
ous individual, community, and community resource (territorial) rights in
forest land of any kind along with the power to protect and manage them.
The law recognised and vested the forest rights on all categories of forest
lands irrespective of their current status in law41 in forest dwelling STs and
other traditional forest dwellers who ‘primarily reside in’ forests for gen-
erations, are ‘dependent on forest land or forests for bona fide livelihood
needs’, and have occupied forest land before 13 December 2005, but whose
rights could not be recorded. FRA lists 14 sets of ‘heritable but not alien-
able or transferable’ rights, including any rights not specified but excluding
hunting. Every village is to demarcate its customary and traditional bound-
ary as its community forest resource rights over which the Gram Sabha is
to protect, regulate, conserve, and manage. This includes forests, biodiver-
sity, wildlife, cultural and traditional practices, and water resources. Com-
munity rights include ownership of minor forest produce,42 rights to water
bodies and fisheries, grazing, seasonal resource access, access to biodiver-
sity, intellectual property rights, traditional knowledge, cultural diversity,
and habitat rights of the Particularly Vulnerable Tribal Groups.43 The indi-
vidual rights are self-cultivation up to 4 hectares, habitation, restoration of
titles, grants and leases if cancelled, disputed lands, alternate land in situ
rehabilitation if illegally evicted, and land from where displaced by govern-
ment acquisition and not used within five years. The FRA lists 13 develop-
mental rights,44 which are public facilities operated by various government
agencies for which up to 1 hectare and felling of 75 trees, with the consent
of the Gram Sabha. In effect, the law simply recognises and restores the tra-
ditional system of governance where decision making is dynamic that are
location and situation specific rather than the rigid prescriptions emanating
within the command and control colonial forest bureaucracy.
Excepting individual rights, all others are vested in the Gram Sabha, the
village assembly. With the rights holders conferred ‘the responsibilities and
authority for sustainable use, conservation of biodiversity and maintenance
of ecological balance, thereby strengthening the conservation regime of the
forests while ensuring livelihood and food security of the forest dwellers’,
 The forest rights struggle 85
there is a transfer of power over forest land from the State bureaucracy to
the Gram Sabha with its open, transparent, and democratic public space to
protect forests from any form of destructive practices affecting their cul-
tural and natural heritage, regulate access to community forest resources,
and stop any activity that adversely affects forest, wildlife, and biodiversity.
These powers extend to the ‘customary common forest land within the tra-
ditional or customary boundaries of the village or seasonal use of landscape
in the case of pastoral communities, including reserved forests, protected
forests and protected areas such as Sanctuaries and National Parks to which
the community had traditional access’.
Inviolate Critical Wildlife Habitat can be declared after rights are rec-
ognised, after fulfilling scientific and objective criteria that the presence of
rights holders will adversely impact wild animals and their habitat, after
concluding that other options such as co-existence are not available, and
after consenting to a resettlement package that ensures ‘secure livelihood’.
Any violation of the provisions in the law by any official is a punishable
offence. The Ministry of Tribal Affairs (MoTA) is the nodal ministry and
the Tribal Department of the State is the nodal agency for implementation
in the state, with a state-level monitoring committee overseeing the process.
Forced to comply with FRA, recognition of forest rights and consent of
the village for all forest diversions were made mandatory for forest diver-
sion since 2009.45 In addition, the RFCTLARRA, 2013 (Right to Fair Com-
pensation and Transparency in Rehabilitation and Resettlement Act) that
decolonized and brought in a semblance of democratising land acquisition
and on market terms also brought forest rights under FRA under its ambit.
Violation of forest rights were brought within the realm of ‘atrocities’
through an amendment in 201546 to the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act of 1989.
Notwithstanding resistance from the bureaucracy, attempts at subversion
by the central and state governments and other vested interests (Bijoy 2017:
73–93), as of 30 November 2018, a decade since the law became opera-
tional in 2008, a total of 1,894,225 titles were issued for 5,459,102.46 hec-
tares,47 13.65 percent of ‘around 40 million hectares of community forest
resources to village level democratic institutions’ (Ministry of Environment,
Forests and Climate Change 2009; Rights and Resources Initiative et al.
2015) that the MoEFCC reckoned in 2009.

The co-opted state: subverting democracy

With India adopting a high-growth trajectory in the neoliberal era/post
1991, forests continued to be under increased pressure for a variety of devel-
opment and infrastructural projects. Forest diversions were carried out with
scant regard to FRA. With FRA, now the law that supersedes FCA 1980,
combined with political pressure of the forest movement to comply with
FRA. Recognition of all rights under FRA and consent of the Gram Sabhas
86  C.R. Bijoy
was made mandatory for diversion of forest land for non-forestry purposes
in 2009. Just as FRA 2006 was in its final stage of conception, the Parlia-
ment amended the Wildlife (Protection) Act in September 2006, making
Tiger Reserve a statutory category, incorporating various provisions as was
being proposed in FRA for Critical Wildlife Habitat. This was in response
to the report of the Tiger Task Force constituted by the government on van-
ishing tigers (Project Tiger, Ministry of Environment, Forests and Climate
Change 2005). A total of 31 Tiger Reserves were rapidly notified within
days in 2007 to beat the FRA rules notification in 2018, securing 2,925,202
hectares with the ulterior motive of confounding forest rights recognition
in Tiger Reserves in gross violation of even the law under which these were
notified (Bijoy 2011: 36–41). This has continued to date. Evictions have
been and are being carried out without recognising rights. A total of 173
villages were relocated since the inception of Project Tiger on 11 Decem-
ber 2017, relocating 12,327 families (Ghanekar 2017). Of the 2,808 forest
villages, 334 villages48 are located inside the core or Critical Tiger Habitats
alone which are to be made inviolate areas under WLPA. Wildlife enclosures
provide a captive space for wildlife ecotourism, a fast-growing sector within
tourism that the State and the private sector have been promoting.
Of about 6 million hectares (Table 4.1) diverted for non-forest purposes
such as mining, development, and infrastructure projects, 1.52 million hec-
tares were diverted under FCA 1980 of which nearly 0.4 million hectares49
(more than 25 percent) were diverted since 2008 when FRA became opera-
tional. The 2009 MoEFCC Order to comply with FRA and Gram Sabha con-
tinue to be flouted.50 In addition, amendments were made to FCA 1980 and
orders were issued by MoEFCC and by other Ministries to dilute, violate,
and subvert FRA, often illegally, some of which are detailed in Table 4.2.
With forest diversion entering the precincts of the aforementioned Goda-
varman case, the Supreme Court soon took steps to further regulate the
diversion of forests for non-forest purposes under FCA 1980; compensatory
afforestation carried out by the Forest Department was made mandatory
for forest clearance for projects by incorporating this provision in the FCA

Table 4.1 Forest diversion from 1950 to 2018

Years Area diverted in hectares (millions)

1950–1980 4.51
1980–2018 1.522
Total 6.02
Notes:
1 MoEFCC, Forests, RF retrieved from www.moef.nic.in/divisions/ic/wssd/doc2/ch9.pdf (22
October 2018).
2 e-Green Watch, FCA Projects, Diverted Land, CA Land Management. Retrieved from http://
egreenwatch.nic.in/FCAProjects/Public/Rpt_State_Wise_Count_FCA_projects.aspx (24
December 2018).
Table 4.2 State acts of commission to violate/dilute FRA

Time line Reference Remarks

2003 Amendment to replace FCA Focus shifts to forest

Rules 198151 clearance52
5 February 2013 MoEFCC order exempting MoEFCC is not vested with
linear projects such as roads, authority over FRA. Neither
canals, pipelines/optical does FRA provide scope for
fibres, and transmission any exemption
lines, etc., from obtaining
Gram Sabha consent for
forest diversion unless
recognised rights of PVTGs
are being affected
7 March 2014 MoTA clarifies that FRA These clarifications continue to
provides for no exemption be flouted by MoEFCC
2014 and 2016 Amendment to FCA Rules Settlement of forest rights
under FRA and obtaining
consent of the concerned
Gram Sabhas transferred to
the District Collectors who
are to issue a certificate to
this effect. MoEFCC absolves
itself of this responsibility
and accountability
28 October 2014 MoEFCC grants District 1 MoEFCC does not have the
Collectors unilateral powers authority to issue such an
to sanction diversion of order exempting FRA
forest land in areas notified 2 Whether rights exist or not
as ‘forest’ less than 75 years can only be determined
before 13 December 2005 through the process under
and with no record of tribal FRA
population as per Census 3 The assumption that these
2001 and 2011 are areas free from any
claims to forest rights are
simply absurd as rights under
FRA are on all forest lands
irrespective of whether tribal
populations are recorded
there or not; in fact, in
most cases there would not
naturally be any human
habitation in the area where
rights are claimed
12 January 2015 MoEFCC issues guideline MoEFCC is not vested with
exempting five categories authority over FRA. Neither
of projects from obtaining does FRA provide scope for
Gram Sabha consent where any exemption
statutory consultations
were carried out that
require a public hearing for
environmental clearance

(Continued)
Table 4.2 (Continued)

Time line Reference Remarks

11 August 2015 MoEFCC issues guidelines 1 FRA is applicable to
declaring its intention ‘degraded forests’
to lease out 40 percent 2 Where rights are claimed and
of forests classified as recognised, the Gram Sabha
‘degraded forests’, to is the statutory authority to
private companies through manage the forest. Leasing
joint agreements with the out such forest lands without
Forest Department, to Gram Sabha consent for
‘carry out afforestation and afforestation and timber
extract timber’, with access extraction is a violation of
to 10–15 percent of the FRA
leased-out area for Minor 3 The MoEFCC and Forest
Forest Produce to tribal Department do not have
communities the power to decide on any
matters regarding Minor
Forest Produce as PESA
provides for ownership rights
in Scheduled Area and FRA,
in addition, vested forest
rights to forest dwellers
5 January 2017 The Ministry of Mines 1 FRA compliance as per the
issues circular to state 2009 MoEFCC order on
governments stating that forest diversion under FCA
MoTA is not ‘insisting on 1980 is mandatory
FRA compliance for grant 2 MoTA had made it clear that
of lease’ for mining but FRA does not provide scope
instead it is enough that FRA for any exemption in forest
compliance be incorporated diversion
into the mining lease deeds
for forest clearance by
MoEFCC
28 March 2017 The National Tiger This violates the provisions
Conservation Authority, a under Sec.38 V of WLPA
wing of MoEFCC, issues a 1972 as amended in 2006
direction barring recognition under which the Tiger
of rights under FRA in the Reserve is notified and FRA.
Critical Tiger Habitats of The Critical Tiger Habitats
Tiger Reserves of Tiger Reserves now cover
an area of 4,014,530 hectares
14 March 2018 MoEFCC issues the draft 1 MoEFCC does not have
‘National Forest Policy’53 the sole prerogative over
forests as per business rules.
MoTA has been vested with
the subject of forest rights
since 2006. Moreover, more
than half of the forests fall
within the scope of FRA
where MoTA is the nodal
ministry. MoEFCC did not
even consult MoTA in policy
formulation
Time line Reference Remarks
2 The draft outlined forest
management that is a
commercial plantation–
centric investment, seeking
forest management through
privatisation of forests
under the rubric of private
and public participation
aiming to increase tree
cover and productivity to
meet industrial and other
needs, disregarding the legal
reality that more than half
of the forest now falls within
the jurisdiction of Gram
Sabhas59 under FRA 2006
19 June 2018 MoTA writes to MoEFCC on MoTA, asserting its authority,
draft National Forest Policy communicated its displeasure
for the aforementioned
reasons on 19 June 2018
(Shrivastava 2018)
3 December MoEFCC clarifies to the Settlement of rights and
2018 Government of Maharashtra Gram Sabha consent, rather
that ‘compliance under than a pre-condition for
FRA is not required for consideration for forest
consideration of in-principal diversion, is relegated to
approval’ for forest diversion being a fait accompli
under Forest (Conservation)
Amendment Rules, 2016
26 February MoEFCC issues further Settlement of rights and
2019 clarification on compliance Gram Sabha consent is
of FRA for forest diversion now not even required for
consideration of in-principle
approval (Stage – 1), instead
compliance is required only
for final approval (Stage -2)
(Rupawat 2019)
7 March 2019 MoEFCC proposes amending Overrides Forest Rights Act,
substantially the Indian 2006, and Gram Sabhas
Forest Act, 1927. while empowering forest
officials to nullify recognised
forest rights; legalises
commercial plantations
and empowers forest
officers to use firearms with
high immunity (Sethi and
Shrivastava 2019)
90  C.R. Bijoy
Rules in 1988 and 2003. This was to compensate for the loss of forest by
securing equal non-forest land and if not available, then double the land
diverted in degraded notified forests. It was argued that this would act as a
disincentive to forest diversion and hence contribute to forest conservation.
Net Present Value, the estimated value for the loss of biodiversity content
and environmental services, ranging from INR 0.4 to 1.043 million per hec-
tare (2008) was to be extracted from the user agency primarily for afforesta-
tion and regeneration of forests. Its formula for computation began taking
shape based on orders of the Supreme Court, taking into account biological
and spatial variations in bio-geographical zones and site-specific numerical
value based on ‘scientific, biometric and social parameters’ (Ghosh 2017).
Afforestation is to be carried out on double the area diverted if on degraded
forest land and an equivalent area if on revenue land which had to be later
notified as forest land. The Supreme Court insisted that the money thus
accumulated, now more than INR 660 billion, is to be managed through
an authority created by law for which the Parliament was to enact a law.
The Compensatory Afforestation Fund Act, 2016, and Rules, 2018, were
the outcome. The law went beyond compensatory afforestation, artificial
regeneration (plantations), and assisted natural regeneration, and included
forest protection, infrastructure development, wildlife protection, and other
related activities, and ironically also included relocation of villages from
Protected Areas, and planning and rejuvenations of forest cover on non-
forest land falling in wildlife corridors without any reference to existing
rights of forest dwellers.
This law, by ignoring the very existence of other laws that recognise land
and forest rights of tribals with their own statutory bodies, is appropriating
the forest and adjacent revenue land by afforesting them. This law empow-
ers the forest bureaucracy to appropriate non-forest lands, the village com-
mons over which people have customary rights, and even individual titled
land. The Act and its rules refer to the Village Forest Management Commit-
tee, an administrative structure controlled and dominated by forest officials,
ignoring the statutory authority of the Gram Sabha as provided under PESA
1996 and FRA 2006. The forest management plan is the ‘working plan’
approved by forest officials, ignoring the legal fact that in the forest area
falling within the purview of FRA, the Gram Sabha, and its Community
Forest Rights Resource Management Committee is the statutory authority
to develop their management plans which are to be incorporated into the
forest working plan. Further, this violation is carried over to the National
Working Plan Code 2014.54 To facilitate forest diversion, MoEFCC ordered
state governments on 8 August 2014 and again on 8 November 2017 to iden-
tify degraded forest land and non-forest land for creating a land bank under
FCA 1980 so that these identified land areas are kept ready for compensatory
afforestation. More than 2.68 million hectares were identified in Andhra
Pradesh, Chhattisgarh, Madhya Pradesh, Jharkhand, Odisha, Tamilnadu,
Rajasthan, and Uttar Pradesh (Tripathi 2017). INR 181,771.9 million55
 The forest rights struggle 91
have already been released during 2009–10 to 2018. With tree plantations
becoming an attractive investment under climate change mitigation through
carbon sinks for carbon credit, and India showcasing the National Mission
for Green India56 under The National Action Plan on Climate Change for
attracting investment, tree plantations are expected to get a fillip taking over
forest lands, and common and individual properties outside the forests. The
Mission, launched in February 2014, was to cost INR 460,000 million for
increasing forest/tree cover on 5 million hectares of forest/non-forest lands
and improve the quality of forest cover on another 5 million hectares (for a
total of 10 million hectares) to enhance annual carbon sequestration by 50
to 60 million tonnes in the year 2020.
In effect, forest diversion first deprives people of their rights through
coercion, violation of laws, and subterfuge, leading to enforcement of com-
pensatory afforestation over equal or double this land as the case may be,
illegally depriving the rights of another set of people. On the other hand,
compensatory afforestation, rather than becoming a disincentive, is actually
turned around deceptively and through administrative skulduggery as an
incentive for forest diversion by neatly circumventing forest rights and for-
est conservation under cover of FCA 1980 and CAFA 2016. The State and
user agency, usually the private sector, collude in this nefarious criminality
in the name of growth and national interest.

Afterwards
A wave of nationwide protests broke out in the aftermath of the Supreme
Court order of 13 February 2019 to evict the claimants in the rejected
claims, which then numbered 1.89 million,57 ‘to ensure that the eviction is
made on or before the next date of hearing’,58 which is 24 July 2019. This
order pertains to the spate of petitions filed by some wildlife and conserva-
tion non-government organisations in the Supreme Court, and by retired
forest officials as well as a former zamindar in the High Courts immedi-
ately on notification of the FRA Rules in 200859 which were transferred
to the Supreme Court and heard together. Responding to the nationwide
outrage and protests both by forest dwellers and wildlife conservationists,60
the Central Government moved the Court to modify its eviction order.61
On 28 February 2019, the Supreme Court put on hold the eviction till 24
July 2019,62 the next date of hearing, while state governments report on the
process adopted to reject the claims (Aryan 2019). Reportedly the Court
reprimanded the Central Government for being in ‘slumber’ over these
years, not approaching the Court and doing nothing. Though an immedi-
ate relief, the threat continues to loom, and forest dwellers vow to continue
their struggle for justice by pushing forward the implementation of FRA
that promises to undo the historical injustice.
The petitioners in this case questioned the powers of the Parliament to
enact the law, the constitutional validity of the law and, its need and argued
92  C.R. Bijoy
that this would lead to decimation of the forests and wildlife in the country
while encouraging further encroachment of forest. While the Court was not
impressed with the argument that the Parliament does not have the powers
to enact the law, it is yet to begin examination of the constitutional validity
of the law. In past years, the legal counsel of MoTA was silent when pre-
sent in the hearings and later absented from the hearings, including the one
during which the Court passed the eviction order. And this was despite a
hue and cry by opposition parties and forest movements through their joint
letter63 alleging an indifferent and callous attitude of MoTA in dealing with
this case ‘perhaps to appease big corporates or vested interests’. The contin-
ued absence of Central Government legal counsels provided the space for
petitioners to appeal to the Court to direct the states to evict the claimants in
the rejected claims, ironically through a law that the petitioners themselves
claimed to be unconstitutional. And the Supreme Court conceded!

Conclusion
The preceding narrative is an accurate reflection of how neoliberal hegem-
ony seeking to transform forest governance – where the final retreat of gov-
ernmental control through a structure of internal colonialism through the
post-independence continuance of colonial forest governance, to a process
of decolonised democratic forest governance befitting a democratic republic
by a people’s democratic struggle – is now being attempted. The roll-out
neoliberalism is attempting to supplant the fledgling democratisation of for-
ests by a virtual coupe with State assistance for the takeover of forests and
its governance to serve the interests of capital, the business, and investors.
The narrative indicates that this is happening not without a fight. The nar-
rative also points to the brewing tensions between forest dwellers and the
forces of neoliberal hegemony.

Notes
1 The holders of jagirs (large extent of property)
2 Feudal landlords in British India who paid the government a fixed revenue
3 The terms ‘ancestral domain’ or ‘ancestral lands’ refers to the lands, territo-
ries, and resources of indigenous peoples, particularly in the Asia-Pacific region,
which are based on ancestry and relationships beyond material lands and ter-
ritories, and include spiritual and cultural aspects.
4 These are people who are notified as ‘Scheduled Tribe’ by the State. They are
generally believed to cover those who are referred to as ‘Adivasi’, literally mean-
ing indigenous, or original, people of India, a commonly recognised and used
term to identify this category of social groups, excluding the northeast region
where they prefer to be known as ‘tribals’ and in recent times, ‘indigenous peo-
ples’. However not all Adivasi communities are Scheduled Tribes nor are all
Scheduled Tribes Adivasis.
5 In the states of Arunachal Pradesh, Mizoram, hill areas of Manipur, and Naga-
land, to regulate entry of outsiders and bars acquiring ‘any interest in land’ by
outsiders or residents of other parts of India.
 The forest rights struggle 93
6 Prohibition or restriction of the transfer of land ‘by or among members of the
Scheduled Tribes’ and regulation of the allotment of land to members of the STs
in Scheduled Areas through appropriate regulations under the Fifth Schedule of
Article 244(1) in any state other than the states of Assam, Meghalaya, Tripura,
and Mizoram.
7 Regulate allotment, occupation or use, or the setting apart of land, other than
any land which is a reserved forest for purposes likely to promote the interests of
the inhabitants of the areas notified as Tribal Areas under the Sixth Schedule of
Articles 244(2).
8 Protects these tribal majority states from the application of any act of the Par-
liament regarding ownership and transfer of land and its resources unless these
states take independent decisions on them, safeguarding the religious and social
practices of the communities that inhabit these states.
9 Retrieved from https://tribal.nic.in/actRules/PESA.pdf (October 22, 2018).
10 National Front for the Adivasi Self-Rule, initiated by Bharat Jan Andolan and
other Adivasi organizations in 1994 led the nationwide struggle. The Late Dr.
B.D Sharma, a former bureaucrat, played a critical role in the struggle.
11 The village assembly of all adult members. Under FRA it is a hamlet/habitation
or a group of hamlets/habitations. The definition differs, for instance, in the
Panchayat Raj Act where it consists of adult members of all the hamlets/habita-
tions falling within the Gram Panchayat which consists of one or more revenue
villages with each having one or more habitations.
12 See: The Provisions of The Panchayats (Extension to The Scheduled Areas) Act,
1996. Retrieved from https://tribal.nic.in/actRules/PESA.pdf (Accessed on Octo-
ber 21, 2018).
13 According to one of the initial drafts of the National Policy on Tribals, 2006
of the Ministry of Tribal Affairs, ‘nearly 85.39 lakh tribals had been displaced
until 1990 on account of some mega project or the other, reservation of for-
ests as National Parks etc. Tribals constitute at least 55.16 percent of the total
displaced people in the country’. Retrieved from www.prsindia.org/uploads/
media/1167469383/bill53_2007010353_Draft_National_Policy_on_Tribals.
pdf (accessed on October 21, 2018).
14 The number of districts is 719 as of 2018.
15 The Sixth Schedule Areas are the North Cachar Hills District, the Karbi Anglong
District, and the Bodoland Territorial Areas District, the Khasi Hills District, the
Jaintia Hills District, and the Garo Hills District in Meghlaya, the Tripura Tribal
Areas District in Tripura and the Chakma District, the Mara District, and the Lai
District in Mizoram.
16 Rabha Hasing Autonomous Council, Sonowal Kachari Autonomous Coun-
cil, Mising Autonomous Council, Lalung (Tiwa) Autonomous Council, Deori
Autonomous Council, and Thengal Kachari Autonomous Council in Assam, Sen-
apati Autonomous District Council, Sadar Hills Autonomous District Council,
Ukhrul Autonomous District Council, Chandel Autonomous District Council,
Churachandpur Autonomous District Council, and Tamenglong Autonomous
District Council in Manipur, and the Ladakh Autonomous Hill Development
Council in Jammu & Kashmir. In Nagaland, Tribal council for each tribe, Area
Council, Range Council, and Village Council.
17 Arunachal Pradesh has no Autonomous Councils, but most of the land is com-
munity land of various ethnic groups. Assam has three Autonomous District
Council areas, viz., the North Cachar Hills, the Karbi Anglong Hills, and the
Bodoland Territorial Autonomous Districts under the Sixth Schedule, and Rabha
Hasing Autonomous Council. Sonowal Kachari Autonomous Council, Mising
Autonomous Council, Lalung (Tiwa) Autonomous Council, Deori Autonomous
Council, and Thengal Kachari Autonomous Council which are constituted under
94  C.R. Bijoy
state laws. Each tribe has its own traditional structure and community bounda-
ries. The Manipur Hill Areas have a Hill Area Committee constituted under
Article 371C of the Constitution; District Councils and Village authorities are
constituted under the Manipur (Hill Areas) District Council Act, 1971, and the
Manipur (Village Authorities in Hill Areas) Act, 1956. Village authorities may
be elected or nominated by the Deputy Commissioner, with the traditional chief
as the ex-officio head of the authority. Sikkim has no Autonomous Councils;
the traditional institutions of ethnic groups are functional. The Tripura Tribal
Areas Autonomous District Council under the Sixth Schedule covers an over-
whelming 68 percent of the state. The traditional systems of local chieftains
continue to exist alongside. Meghalaya, except for the municipality and canton-
ment of Shillong, is covered by the Sixth Schedule, viz., the Khasi Hills, Jaintia
Hills, and Garo Hills Autonomous District Councils. Traditional and customary
systems involving a hierarchy of chiefs and headmen prevail with some varia-
tions. Mizoram has three Sixth Schedule Areas, viz., the Mara, Lai, and Chakma
Autonomous District Councils. The state has elected village councils constituted
in most parts of the state, replacing earlier traditions of hereditary chieftainship.
Nagaland through the Nagaland Tribe, Area, Range and Village Council Act of
1966 provides for the creation of a tribal council for each tribe, an area council
for Kohima and Dimapur, a range council where there is a recognized range in
the Mokokchung and Kohima Districts, and village councils for one or more vil-
lages in Kohima and Mokokchung. The 16 tribes in Nagaland occupy a distinct
territory along with their traditional system of self-rule, which is diverse. Every
village constitutes an authority. Village councils are constituted by the villages
according to customary practices for five years under the provisions of the Naga-
land Village and Area Councils Act, 1978 (compiled from Bijoy, 2015).
18 A land tenure system in British India used to collect revenues from the cultivators
of agricultural land
19 A revenue system of land tenure in British India for a compact area containing
one or more villages which were called ‘estates’.
20 This act was repealed and replaced by the much more liberal Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (RFCTLARR) after decades of resistance that often
resulted in violent bloodshed. For the law, see https://indiacode.nic.in/bit-
stream/123456789/2121/1/201330.pdf (Accessed on 21 October 2018)
21 For instance, mining, coal bearing areas, ancient monuments and archaeological
sites and remains, national highways, atomic energy, etc.
22 Dated 18 September 1990, these guidelines dealt with (1) review encroachments
on forest land; (2) review of disputed claims over forest land, arising out of for-
est settlement; (3) disputes regarding pattas/ leases/grants involving forest land;
and (4) conversion of forest villages into revenue villages and settlement of other
old habitations, Retrieved from http://wrd.bih.nic.in/guidelines/awadhesh02a.
pdf (Accessed on 21 October 2018)
23 Pre-1980, diversion of forest was primarily for cultivation. More than half of
about 4.3 million hectares of forests diverted between 1951 and 1980 was for
agriculture (Ministry of Environment and Forests, Government of India 2004:
58).
24 For current data, see ‘Protected Areas of India from 2000 to 2018 (as on July,
2018)’, Retrieved from www.wiienvis.nic.in/Database/Protected_Area_854.aspx
(Accessed on 22 October 2018)
25 Together with 77 conservation reserves (259,403 hectares) and 46 community
reserves (7,261 hectares), 23.1 percent of the forest.
26 See: Tiger Reserves for the latest figure, Retrieved from http://wiienvis.nic.in/
Database/trd_8222.aspx (Accessed on 22 October 2018).
 The forest rights struggle 95
27 Protection, improvement, and enhanced production of minor forest produce to
generate employment and income for tribal and other communities (Sec.3.5)
28 The holders of customary rights and concessions, specifically the tribals, in forest
areas are to protect and develop the forests while using them for their bona fide
needs as ‘rights and concessions’ (Sec.4.3.4.2).
29 He belonged to the Nilambur Kovilakam, the Janmi (a feudal land-holding fam-
ily) who once owned huge tracts of land in these parts of the Western Ghats.
30 Ministry of Environment, Forest and Climate Change, Government of India,
Letter No.7–16/2002-FC dated 3 May 2002, Sub: Evictions of illegal encroach-
ments on forest lands in various States/UTs time bound action Plan. Retrieved
from http://mpforest.gov.in/img/files/Prot_New79.pdf (Accessed on 22 October
2018).
31 Reply by MoEFCC on 16.08.2004 to the Lok Sabha starred question No.284
regarding ‘Regularisation of encroachments on forest land’. Retrieved from
http://164.100.47.192/Loksabha/Questions/QResult15.aspx?qref=2276&
lsno=14 (Accessed on 22 October 2018).
32 For further details, see https://forestrightsact.com/about/
33 In IA No. 1126 in IA No. 703 in Writ Petition (C) No. 202 of 1995 dated
21.07.2004.
34 See: Court Cases at https://forestrightsact.com/court-cases/
35 Lok Sabha unstarred question no.2487 of 31.07.2017, Retrieved from
http://164.100.47.190/loksabhaquestions/annex/12/AU2487.pdf (Accessed on
22 October 2018)
36 The Ministry of Environment & Forests was renamed in 2014.
37 MoEFCC on 21 July 2004 filed an affidavit IA No. 1126 in IA No. 703 in Writ
Petition (C) No. 202 of 1995 in the Supreme Court in the ‘forest case’, conceding
that there has been a ‘historical injustice’ because of the government’s failure to
recognise the traditional rights of the tribal forest dwellers which ‘must be finally
rectified’.
38 Government of India (Allocation of Business) Rules, 1961 (As amended up
to 28 December 2017), Cabinet Secretariat, p. 52, Retrieved from https://cab-
sec.gov.in/writereaddata/allocationbusinessrule/completeaobrules/english/1_
Upload_1368.pdf (Accessed on 24 October 2018).
39 Inserted vide Amendment series no.285 dated 17.03.2006
40 Inserted vide Amendment series no.285 dated 17.03.2006
41 Includes unclassed forests, undemarcated forests, existing or deemed forests,
protected forests, sanctuaries, national parks, and tiger reserves, and ‘forest’ as
understood in the dictionary sense, that is, any area recorded as forest in the
government record irrespective of any other official classification.
42 Minor forest produce is defined in FRA [Sec.2(j)] as that which ‘includes all non-
timber forest produce of plant origin including bamboo, brush wood, stumps,
cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants
and herbs, roots, tubers and the like’.
43 A total of 75 STs are notified as Particularly Vulnerable Tribal Groups
44 These facilities are (a) schools; (b) dispensary or hospital; (c) anganwadis; (d)
fair price shops; (e) electric and telecommunication lines; (f) tanks and other
minor water bodies; (g) drinking water supply and water pipelines; (h) water or
rain water harvesting structures; (i) minor irrigation canals; (j) non-conventional
source of energy; (k) skill upgradation or vocational training centres; (l) roads;
and (m) community centres.
45 Ministry of Environment, Forest and Climate Change, Government of India,
Letter F.No.11–9/1998-FC(pt) of 03.08.2009, Sub: Diversion of forest land
for non-forest purposes under the Forest (Conservation) Act, 1980, ensuring
compliance of the Scheduled Tribes and Other Traditional Forest Dwellers
96  C.R. Bijoy
(Recognition of Forest Rights) Act, 2006, Retrieved from www.moef.nic.in/divi
sions/forcon/3rdAugust2009.pdf (Accessed on October 23, 2018).
46 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Amendment Act, 2015, Retrieved from https://tribal.nic.in/DivisionsFiles/mj/4-
preventionofAtrocities.pdf (October 23, 2018).
47 Only 19 states have actually begun implementing FRA. While Mizoram has
extended the law to the state, the Nagaland assembly has yet to decide on its
extension to the state. In Jammu & Kashmir, a private member’s bill is under
consideration by its legislative assembly. See: Status report on implementation
of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006, for the period ending 30.11.2018, Retrieved from
https://tribal.nic.in/FRA/data/MPRNov2018.pdf (Accessed on 3 March 2019).
48 Lok Sabha Unstarred Question No. 816 answered on 14.12.2018.
49 Ibid.
50 The few cases that have come to the courts overturned decisions to divert for-
est land for violating FRA and the 2009 order such as Writ Petition (Civil) No.
180 of 2011 Orissa Mining Corporation vs. Ministry of Environment & For-
est and others, Judgement of 18 April 2013, available at http://sci.gov.in/jonew/
judis/40303.pdf. Since then there have been other such judgments as the Kashang
hydroelectric project of Himachal Pradesh and the Mapithei dam of Manipur.
51 Retrieved from www.envfor.nic.in/legis/forest/gsr23(e).pdf (Accessed on 23
October 2018).
52 Also see the list of initiatives ‘taken for granting of early forest clearance’ pro-
vided as answer to Rajya Sabha Question No.1251 of 04.12.2014. Retrieved from
http://164.100.47.4/newrsquestion/ShowQn.aspx (Accessed on 28 October 2018).
53 Ministry of Environment, Forest and Climate Change, Retrieved from www.moef.
nic.in/sites/default/files/Draft%20National%20Forest%20Policy%2C%20
2018.pdf (Accessed on 23 October 2018).
54 National Working Plan Code, 2014, Retrieved from http://envfor.nic.in/sites/
default/files/National%20Working%20Plan%20Code%202014.pdf (Accessed
on 23 October 2018).
55 Lok Sabha Unstarred Question No.865 answered on 14.12.2018.
56 National Mission for Green India, Retrieved from www.moef.gov.in/sites/default/
files/GIM_Mission%20Document-1.pdf (Accessed on 16 November 2018).
57 The number of rejected claims then available was of October 2018, Retrieved from
https://tribal.nic.in/FRA/data/MPROct2018.pdf (Accessed on 4 March 2019).
58 Retrieved from www.sci.gov.in/supremecourt/2008/8640/8640_2008_Order_
13-Feb-2019.pdf (Accessed on 4 March 2019).
59 In addition to Wildlife First, the Wildlife Trust of India, Nature Conservation
Society, Tiger Research and Conservation Trust, Bombay Natural History Society,
retired forest officials from Andhra Pradesh, Karnataka, Maharashtra, Orissa,
and Tamilnadu, and T.N.S. Murugadoss Theerthapathi, ex-zamindar of Singam-
patti in Tamilnadu; see Centre Again Totally Silent in Anti-FRA Case, Supreme
Court Asks for Reports on Forest Rights Act. Retrieved from https://forestright
sact.com/2019/02/13/centre-again-totally-silent-in-anti-fra-case-supreme-court-
asks-for-reports-on-forest-rights-act/ (Accessed on 4 March 2019).
60 See their protest note, Conservationists Speak Out Against Evictions, Say This Is
Not Pro-Conservation. Retrieved from https://forestrightsact.com/2019/02/27/
conservationists-speak-out-against-evictions-say-this-is-not-pro-conservation/
(Accessed on 4 March 2019).
61 This application can be accessed in the article SC Agrees To Hear Tomorrow
Centre’s Application For Stay Of Eviction Of Forest Dwellers. Retrieved from
www.livelaw.in/top-stories/sc-agrees-to-hear-tomorrow-centres-application-for-
stay-of-eviction-of-forest-dwellers-143203#.XHYmGIb9j3I.facebook (Accessed
on 4 March 2019).
 The forest rights struggle 97
62 The Supreme Court order was not available in the public domain at the time of
writing though widely reported in the media.
63 The letter is available at Opposition Leaders, People’s Organisations Ask if
Govt Has Decided to Sacrifice Forest Rights Act. Retrieved from https://for-
estrightsact.com/2019/02/04/opposition-leaders-peoples-organisations-ask-if-
govt-has-decided-to-sacrifice-forest-rights-act/ (Accessed on 4 March 2019).

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5 Maharashtra Agricultural
Land Leasing Bill, 2017 Seema Kulkarni and Pallavi HarsheMaharashtra Land Leasing Bill, 2017

Exploring opportunities
for landless and women’s
collectives
Seema Kulkarni and Pallavi Harshe

One of the biggest threats to landownership in the present day, espe-

cially among small and marginal farmers, has been the large-scale con-
version of agricultural land for non-agricultural purposes or distress
selling because agriculture has become unviable. The ‘land use statistics’
between 1991–92 and 2012–13 (Ministry of Agriculture 1991–92 and
2012–13, cited in Rao and Behera 2017: 21) reveals that nearly 3.16 mil-
lion hectares of agricultural land was lost to other sectors. To free up
land and make way for industrial development and large infrastructure
projects, several states in India are either amending older laws or bring-
ing in new ones. In consonance, changes in land record management,
land ceiling laws, land acquisition laws, land leasing laws, and property
laws are observed.
Among the various legal reforms proposed is the land lease law, which
aims at liberalising land leasing by setting land free from tenancy laws that
allow the tillers to stake their claim to land. The discourse on land leas-
ing by its advocates calls for a scrapping of the old tenancy laws, arguing
that tenancy laws have become redundant. They further the argument,
saying that liberalising land leases would provide the necessary incen-
tive to formalise leases and ensure security to both the owner and ten-
ant. NITI Aayog Report 2016 advocates for a land lease law; it mentions
the commendable work done by women’s collectives and, as examples of
group leasing, under the Kudumbashree programme in Kerala, and under
the Society of Elimination of Rural Poverty Programme (SERPP) of the
undivided Andhra Pradesh in Telangana. Based on our work experience,
we curiously ask – among landless women tenants belonging to socially
marginalised groups, who enters informal land leases? Does this ensure
women’s tenure rights and works as a solution for access to agricultural
land for livelihood? We examine this question in the context of a draft
land lease bill introduced by the Maharashtra Legislative Assembly in
April 2017, as a measure to bring in equity and efficiency in agriculture
and creating a pathway for rural transformation.
 Maharashtra Land Leasing Bill, 2017 101
Land reform and India’s ‘agricultural growth’ story
In post-independent India, broadly speaking, three major types of land
reform legislation have been enacted in most of the states: (1) abolition of
intermediary tenures; (2) regulation of the size of holdings through land
ceiling or land consolidation reforms and the settlement and regulation of
tenancy to transfer land to the tiller; and (3) increase the security of tenure
for tenants and regulation of rent seeking by large landlords (NITI Aayog
Report 2016: 4). Social justice and poverty alleviation, addressing inequali-
ties in landholding by transferring land to the tiller and improving efficiency
in agricultural productivity were some of the objectives for introducing
these reforms. Barring a few states, such as West Bengal and Kerala, over-
all, the land reform agenda has not attained what it set out to achieve. It
was generally abandoned by most political parties after a decade following
independence.
In the current neoliberal paradigm, the agenda for land reform and distri-
bution has witnessed a new set of challenges. The process of land acquisi-
tion, trading of water, and access to other natural resources has become easy
because of the introduction of various government policies. The growing
number of special economic zones (SEZs) and mushrooming of industrial
zones, development projects such as the golden corridor, etc., have meant
that land is being acquired through the State arm, thereby dispossessing the
poor of their meagre resources. As Harvey (2004) puts it, accumulation by
dispossession consists of the commodification of goods that were not seen
as part of the market before, because of the needs of capital to find new
avenues for investment, to keep reproducing and therefore growing (and
accumulating). In Harvey’s terms, current reallocations of resources can be
seen as a new round of enclosure of the commons, referring to processes
of dispossession of resources that release labour, land, and water at a very
low cost. The coercive powers of the State play a crucial role in backing
and facilitating these processes, as it is responsible for altering regulations
or laws and institutions, favouring, privileging, and even promoting such
forms of capitalist accumulation as forms of economic growth, progress,
and development. State politics and ideology are central to these forms of
dispossession. The State, for instance, actively appropriates land, freeing it
for leasing or for contract or corporate farming.

Liberalising land leases in India

It has been argued from different quarters that reform in tenancy is war-
ranted to improve efficiency in agricultural productivity. Advocates of this
school say that tenancy reforms had a role to play in the immediate post-
independence period when landlordism characterised the agrarian society.
Now, the situation has changed and although land leasing continues, the
fear of losing land to the tenant has forced an increase in the number of
102  Seema Kulkarni and Pallavi Harshe
landless, small, and marginal farmers entering into informal contracts with
landowners.
Land leasing or sharecropping is not new to India, and there is enough
evidence to show its existence in ancient India as well (Byres 1983). Lit-
erature is replete with theoretical and empirical work which explains the
rationale behind sharecropping contracts, costs of sharing, terms of con-
tract, etc. See for example the work of Eswaran and Kotwal (1985), New-
bery (1977), Stiglitz (1974), and Singh (1989), among others that speak of
the risk-sharing properties of sharecropping or existence of what is referred
to as moral hazards and adverse selection. They further go on to explain the
various factors that determine such contracts. Chaudhari and Maitra (2000)
through their empirical study have shown how the terms of cost sharing
depend on availability of employment opportunities outside the tenancy,
the proportion of inputs costs shared by the owner, and the possibility of
assured market linkages.
Bansal et al. (2018) in their detailed analysis of NSSO (National Sample
Survey Organisation) data show that a substantial increase in the incidence
of agricultural tenancy has occurred between 2002–03 to 2012–13. From
6.7 percent in 2002–03 to 11 percent, the increase in the area leased-in is the
highest reported in the past four decades. The proportion of tenants also has
increased from 11.4 percent (2002–03) to 15 percent (2012–13). The study
highlights that fixed rent is the preferred form of sharing, which indicates
that the higher income groups are entering into the leasing market, thereby
pushing out smaller landless tenants. There is exclusion of dalits and Mus-
lims from both landownership as well as access to land for tenancy; tenancy
does not mitigate caste disparities.
It is evident from NSSO data and other micro-studies that land leasing
is on the rise and this is especially so in the states of Andhra Pradesh and
Telangana. Both states have introduced legal provisions in the past decade
to protect the rights of tenants and owners, but without any significant suc-
cess in doing so. Data from a survey done by the Rythu Swaraj Vedika, a
Telangana-based farmer’s organisation along with students of TISS (Tata
Institute of Social Sciences) in 2018 shows that 75 percent of farm suicides
were of tenant farmers (Kurmanath KV 2018).
It is against this backdrop of increasing informal tenancies that the Expert
Committee on Land Leasing under the chairmanship of Dr Tajamul Haque
was set up in 2015. It proposed the Model Land Lease Act, 2016, by point-
ing to stringent tenancy laws and the resultant loss of land available for
cultivation. The committee argued that land redistribution no longer is rel-
evant as the old feudal structures no longer exist; however, concealed land
leases need to be formalised to protect both the tenant and the owner. On
11 April 2016, the Expert Committee presented its report to NITI Aayog,
including the Model Land Leasing Act. The Model Act limits itself to land
leasing in the context of agriculture and allied activities as well as only for
farmers and farmers’ collectives. The report makes a case for why legalising
 Maharashtra Land Leasing Bill, 2017 103
of land leasing is necessary both from the tenant’s point of view and the
landowners. It says that there is a strong case for legalisation and liberalisa-
tion of land leasing as it would help promote agricultural efficiency, occupa-
tional diversification, and rapid rural transformation (NITI Aayog Report
2016: 11). Pointing out the negative impact of the tenancy reforms on both
tenant and owner, the report states:

Legal restrictions on land leasing have affected agricultural efficiency

in several ways. First, legal ban or restrictions on land leasing have led
to concealed tenancy in almost all parts of the country. Informal ten-
ants are most insecure, as they either have short duration oral leases
or get rotated from plot to plot each year so that they cannot prove
continuous possession of any particular piece of land for any speci-
fied period which could give them occupancy right, according to law
of a state. This provides a disincentive to tenant farmers to make any
investment in land improvement for productivity enhancement. Legali-
sation of land leasing would ensure security of landownership right for
the landowners, which in turn would provide security of tenure to the
tenants.

Hence, efficiency and productivity arguments are extended to justify the

need to formalise land lease agreements in the Model Land Lease Act. As
Mani (2016: 4) points out:

The salient features of the Act included: (i) legalise land leasing to pro-
mote agricultural efficiency, equity and poverty reduction; (ii) legalise
land leasing to ensure complete security of land ownership right for
land owners and security of tenure for tenants; (iii) remove the clause of
adverse possession of land in the land laws of various states; (iv) allow
automatic resumption of land after the agreed lease period; (v) allow
the terms and conditions of lease to be determined mutually by the land
owner and the tenant; (vi) facilitate all tenants to access crop insurance
and bank credit; and (vii) incentivise tenants to make investment in land
improvement.

It also lays the dispute redressal mechanism in case of disputes between ten-
ant and owner.
Maharashtra interestingly shows a decline in both the proportion of ten-
ants among cultivator households and the proportion of the leased-in area
of the operated land. For Maharashtra in 2002–03 the proportion of ten-
ants was 7 percent and the leased-in area was 4.7. In 2012–13, it has come
down to 4.9 and 3.3 percent, respectively. It is thus not clear why the gov-
ernment is in a tearing hurry to revoke the tenancy laws and replace them
with the Land Lease Bill modelled on the Model Land Lease law proposed
by NITI Aayog.
104  Seema Kulkarni and Pallavi Harshe
Exploring potential for women farmers
More than 50 percent of the population depends on agriculture; its contri-
bution to the economy is less than 18 percent, contributing to the agrarian
crisis. As per the Agriculture Census data of 2015–16, the number of small
and marginal holders operating smaller areas of land is increasing. It shows
that about 86 percent of the operational holders are small and marginal
(0.0–2.0 ha), operating only 47 percent of the land, while semi-medium and
medium farmers, who constitute about 13 percent of all the operational
holders (2.00–10.0 ha), operate 44 percent of the land, and larger holders,
who constitute about 0.57 percent of the operational holders, operate about
9 percent of the land. High dependence on agriculture, inequalities in access
to land, decline of agriculture’s contribution to the economy, and declining
investments in agriculture are among the key reasons for the current agrar-
ian crisis.
Agrarian transition has largely been a gendered one, with large-scale male
outmigration from rural areas as a result of agrarian distress. As men move
into non-farm jobs, women are forced to look after the fields but under
extremely adverse conditions and doing unpaid labour. Though women are
seen on the farms, they are not paid for the work they do. This is evident
from the NSSO data on employment done over a period of years that show
a decline in rural women’s employment. In 1999–2000, about 41 percent of
rural working-age women were employed in agriculture. In 2011–12, this
declined to 28 percent. There was no parallel increase in employment in
any other sector as well for rural women, clearly indicating that they were
not being absorbed elsewhere (Rawal and Saha 2015). The recent Periodic
Labour Force Survey (PLFS), 2017–18 data shows that only 18 percent of
women participate in the labour force (MOSPI 2019).
In the face of increasing agrarian distress, with marginalisation of small,
marginal, and landless farmers; the coexistence of feminisation of agricul-
ture; and a decline in rural women’s employment; clearly new models are
needed in agriculture – both in form and content.
In rural India, access to cultivable land with access to water is considered
equally important from the point of view of economic well-being. Consid-
ering that women’s ownership of land is very poor despite amendments in
some of the personal laws, addressing the rural women’s question becomes
a rather vexing issue.
To understand women’s ownership through operational holdings, the
Agriculture Census is the main source of information. The most recent Agri-
cultural Census data for 2015–16 shows that 14 percent of all the oper-
ational landholders are women, operating about 11 percent of the area.
Over a decade there was a marginal increase – from the 2005-06 census, 13
percent operational holding to 14 percent in 2015–16. Women operating
10 percent of operated areas does not reflect the overwhelming presence
of women in agriculture; this contrasts with the NSSO data that show a
decline in rural women’s employment in the past decade.
 Maharashtra Land Leasing Bill, 2017 105
Poor landownership among women on one hand, and an increased pres-
ence on the farms on the other, indicates that solutions need to be found to
strengthen ecological agriculture and the recognition of women as farmers.
In this situation, a key question is: If this were to be pursued, what are the
institutional models or forms that could address gender gaps in landown-
ership and access to entitlements associated with ownership? Can group
farming or collective farming with support from the State be an answer?
Can then there be legal provisions that ensure tenure security for women
leasing-in land for group farming?1 Can the proposed land lease bill for
Maharashtra open such possibilities? We explore this by understanding the
provisions in the bill in the context of the field work done in Maharashtra.
Increasing empirical evidence from Kerala and Telangana highlighted by
Bina Agarwal (2018) suggests that group farming or collective farming is a
possible solution to address some of the questions raised. There are also less-
documented evidences from various other states where the women collec-
tives have been formed for sharing various resources, including knowledge
and information. She argues in her paper (2018) that group farming does
provide an effective alternative provided the State makes available the nec-
essary supports. If the Kudumbashree and SERPP models were to be scaled
up, a legal provision to ensure tenure security would need to be in place.

Tenancy reform in Maharashtra State

Maharashtra enacted the Bombay Tenancy & Agricultural Lands Act in
1948. It has been revised several times (in 1951, 1964, 1965, 2014, 2016)
and is now referred to as the Maharashtra Tenancy and Agricultural Lands
Act, 1948 (MTALA), which covers the entire state. Section 32 of the Act
ensured that tenants who were cultivating land on 1 April 1957, ‘tillers day’,
will be made the owners of the land after paying a nominal amount which
could also be paid in instalments.
Different acts were applicable to different parts of Maharashtra before
the enactment of the MTALA. Western Maharashtra had a Bombay Small
Holders Relief Act, 1938, which prevented eviction of tenants who had cul-
tivated the land continuously for more than six years. Further amendments
to this Act allowed for security of tenure and regulation of rent, but its
implementation was poor. In the Berar Division, Vidarbha region of Maha-
rashtra, the Berar Regulation of Agricultural Leases Act, 1951, allowed for
some protection to tenants by determining reasonable rents and a term for
lease, and the Central Provinces Tenancy Act, 1883, which recognised dif-
ferent types of tenants such as absolute occupancy tenants, ordinary ten-
ants, sub-tenants, village service tenants, etc. Different types of tenants
were protected, except the ordinary tenants who were unable to pay rent.
These were later protected through the Bombay Vidarbha Region Agricul-
tural Tenants (Protection from Eviction and Amendment of Tenancy Laws)
Ordinance in 1957. Later, more comprehensive legislation, The Bombay
106  Seema Kulkarni and Pallavi Harshe
Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, was passed.
The tenancy in Marathwada region was regulated by Asami-Shikmi Act,
1354 F. Asami Sikhmis was a class of protected tenants as created by the
Act. After independence, the erstwhile Hyderabad State passed a compre-
hensive tenancy act named the Hyderabad Tenancy and Agricultural Lands
Act, 1951 (Mokashi 1978: 186–188).
At present, tenancy is not completely banned in Maharashtra, but the
tenant acquires the right to purchase the leased land from the owner within
a specified period of creation of tenancy (Haque n.d.). Section 43 of the
MTALA also lays restriction on the transfer of land through sale, gift,
exchange, mortgage, lease, or assignment without the prior permission of
the Collector. These restrictions were imposed to ensure that the tenants
do not sell the land for profits, as the land was intended for livelihood pur-
poses; also, to ensure that others do not take undue advantage of them and
buy the land at lower rates. This provision was later amended in 2014 under
which the need for permission of the Collector to sell the land was removed
in cases where the land had been purchased ten years before.
Implementation of tenancy reforms is indicative of concerns for tenants.
Until 2006, 4 percent of land rights were conferred on the tenants; 33 per-
cent of the tenants were evicted from the land they were tilling to prevent
them from acquiring occupancy rights, resulting in a general worsening of
their tenure security (Appu 1997, cited in Mearns 1999). NSSO data in
different rounds have indicated that land leasing has been on the decline,
and this is largely attributed to stringent tenancy laws. However, various
studies point to the fact that land leases/reverse tenancy are in fact increas-
ing (Jodha 1981; Mearns 1999); none of them are formally recorded as a
result of the stringent laws. Concealed tenancy arrangements often lead to
insecure tenures for tenants, pushing them to the margins (Mearns 1999: 6).

Maharashtra Land Leasing Bill, 2017

Following the Model Land Lease Act, Maharashtra State proposed a bill
entitled A Law Relating to Agricultural Land Leasing in the State of Maha-
rashtra on 7 April 2017 in the State Legislative Assembly. The bill echoes
the statement of object of the Model Land Lease Act, 2016, stating that the
prohibitions and restrictions under existing state tenancy laws governing
agricultural land leasing have forced landowners and tenant cultivators to
have informal agreements, thereby depriving the tenant cultivators of the
benefits which are normally due to them. The Model Act provides ration-
ale that the existing laws create insecurity among landowners to lease-out
agricultural land, thereby reducing access to land by landless poor, small,
and marginal farmers and others by way of leasing. Moreover, agricultural
land leasing would improve agricultural efficiency and equity by promoting
access to land for the landless, small, and marginal farmers. By providing
recognition to the tenants, they will be able to access institutional credit,
 Maharashtra Land Leasing Bill, 2017 107
insurance, disaster relief, and other support services provided by the govern-
ment, while also protecting fully the land rights of the owners.
The Maharashtra bill mainly subscribes to the Model Act but makes it
mandatory for a written lease agreement (section 3, sub-section 4), a depar-
ture from the Model Act. As per the bill, the written agreement should
be registered under the provisions of the Registration Act, 1908. In sub-
section 8 of section 3, it is also mentioned very explicitly that the lease
agreement will not be registered under the Record of Rights but a separate
register would be maintained by authorised officials, and the lease agree-
ment would be registered in that register maintained in a prescribed format
by related officials. Section 3, sub-section 9, clarifies that registration of
tenancy under the Registration Act will not lead to any right over land for
the tenant. The tenant will not get any of the following rights: (a) protected
tenancy, (b) occupancy right, (c) any other right against eviction, and (d)
right against lease termination except for those mentioned in the lease agree-
ment. Similarly, the entry in register or under the Registration Act cannot
be used in any court of law to establish permanent right over land. It is thus
evident that the land rights of landowners are secured. Section 3 also states
that the lease period and the lease amount in cash or kind or share is to be
decided mutually by the tenant and the owner. Sub-section 10 of section 3
underlines the automatic reversion of the land to the landowner once the
lease agreement ends.
Section 4 of the bill largely speaks of the rights and responsibilities of
the landowner which includes the right to get back the land in the event
the tenant carries out any of the default actions such as failure on the part
of the tenant to make the payment, or in case the tenant causes damage to
the soil health or if the land is used for purposes not mentioned in the lease
agreement. Similarly, landowners are entitled to the lease amount on time
and the right to automatically get the land back after the expiry of the lease
agreement, to transfer the land without disturbing the cultivation rights of
the tenant till the end of the lease period. The bill specifies that the owner
should not interfere in the use of the land until the expiry of the lease period.
The owner is responsible for paying the taxes, cess levied on the land.
Section 5 is about the rights and responsibilities of the tenant. Accord-
ing to section 5, the tenant is entitled to have undisturbed possession and
use of the agricultural land until the expiry of the lease agreement. The
tenant will only have those rights as mentioned in the lease agreement
and cannot have the right over land because of the lease agreement. The
tenant does not have the right to sub-lease the land, make changes to the
soil or land unless mentioned in the agreement, build any structures or
fixtures on the land without the permission of the landowner, and dis-
turb the boundaries of the land during the lease period. The right to get
credit or benefits of crop insurance, etc., is dependent on mutual agree-
ment either between the financial institution and tenant or the tenant and
owner. When there is need of credit facilities from banks, cooperatives,
108  Seema Kulkarni and Pallavi Harshe
or any other financial institutions, sub-section ‘e’ of section 5 stipulates
that the credit can be taken without mortgaging the land. In such cases,
the institution and tenant mutually agree that he/she can use the expected
value of production/returns from leased-in land during the lease period as
collateral for advancing the loan. Regarding the need to get the benefits of
crop insurance, disaster relief, or any other benefits or facilities provided
to farmers by the State or Central Government, sub-section ‘f’ of section 5
states that it is to be based on mutually agreed terms between the tenant
and owner.
Section 7 of the bill states that the lease can be terminated under the fol-
lowing conditions: (a) expiry of the lease period, (b) failure to pay lease
consideration after three months from the due date, (c) use of the land for
purposes other than agriculture and allied activities or as mentioned in the
lease agreement, (d) tenant sub-leases the land, (e) tenant damages the land,
(f) both parties mutually agree to terminate the lease, (g) tenant dies, and (h)
tenant voluntarily surrenders the leased-in land.
An important mechanism as laid down by the bill is the dispute redres-
sal mechanism. Section 8 of the bill mentions that there will be compe-
tent authority nominated by the State to enforce the lease terms and will
be responsible for implementation of the terms of lease and to return
back the leased-out land to the owner after completion of the lease agree-
ment. Three layers of a dispute resolution mechanism are mentioned in
the bill, including competent authority that will be specified by the State.
The second appeal point would be the District Magistrate, and the final
redressal mechanism would be the Maharashtra Revenue Tribunal. All of
them have been given the rights to pass interim orders which cannot be
challenged. For other orders, appeal can be made to higher appeal struc-
tures. Section 12 also explicitly states that, except for a decision affecting
the legal title of land of an owner, no other decisions made under this Act
by competent authorities can be challenged in a Civil Court. Similarly,
no Civil Courts have the jurisdiction to resolve disputes under this Act.
Section 13 states that no suit, prosecution, or other legal proceedings can
be used against an officer of the government for doing anything which is
done or intended to be done in good faith, thereby offering protection.

Field study on land leasing

In July 2018, field work was done in the Osmanabad District of the Mar-
athwada region of Maharashtra to study the prevalent forms and terms of
lease agreements, labour, and other input- and produce-sharing arrange-
ments to articulate the tenants’ perspective and also to understand the social
composition of those who lease-in land and whether women engage in any
group leasing activities. Based on the findings, the study attempts to explore
 Maharashtra Land Leasing Bill, 2017 109
whether there are opportunities for ensuring tenurial rights of landless fami-
lies and women’s collectives in Maharashtra State.

Methodology and sample

The study was conducted in three villages, namely, Apsinga, Kamtha, and
Katri in Tuljapur Taluka,2 of the Osmanabad District. Purposive sampling
was used for selection of villages and the respondents, such as presence of
known activists in the village3 and availability of lessee. Of a total of 72
land leases that were identified, 32 were interviewed. Three of the seven
households interviewed in Kamtha who cultivated leased land stopped sub-
sequently because of oppressive terms set forth by the landowner. During
eight interviews, the wives of the farmers were also present and contributed
to providing information.
We use the term ‘owner’ for the term ‘lessor’ referred to in the bill and
‘tenant’ for the term ‘lessee’, that is, the one who has leased-in the land as
referred to in the bill.
Of the 32 tenants interviewed, 21 are from Apsinga, five from Kamatha, and
six from Katri. The gender profile shows that 27 are men, while only five are
women. Of the five, two single women were cultivating the land themselves;
three women are married and interacted as respondents as their husbands were
not available at the time of the interview. Two married women were not aware
of the financial arrangements of the leasing-in. Of 32 tenant farmers, 26 farm-
ers are Hindu, six are Muslims. All the Muslims are from Apsinga village. The
details regarding social strata and caste of the Hindu tenants is as follows: 12
belonged to the general category (Maratha); three belonged to the OBC cat-
egory (Mali, Fulmali, and Lingayatmali); and 11 belong to the SC community
(Matangs and neo-Buddhists). Among SCs, a greater number of neo-Buddhist
families are leasing-in land and cultivating (Table 5.1).

Table 5.1 Profiles of tenant farmers interviewed in the study villages

Village No. of Gender Social strata

interviewed distribution
tenants of interviewed
tenants

Males Females General OBC4 SC5 Muslim

Apsinga 21 17 4 6 3 6 6
Kamatha 5 4 1 0 0 5 0
Katri 6 6 0 6 0 0 0
Total 32 27 5 12 3 11 6
Source: All tables in this chapter are prepared by the authors based on primary data collection,
unless specified otherwise
110  Seema Kulkarni and Pallavi Harshe
The social strata of landowners – 26 are from the open category
(Brahmin, Maratha,6 and Vani)7; eight belong to the Other Backward
Classes (OBC) category (Mali,8 Mahadev Mali, and Teli9); three belong
to either SC (dalit) or Nomadic Tribes (NT) (D)/(C) category (Chamb-
har,10 Dhangar11 and Vanjari12), and one has leased-in land from Shri
Shivaji Shikshan Prasarak Mandal registered under the Societies Reg-
istration Act, 1860. All open-category farmers are Marathas, and all
the OBC farmers have self-owned land. Of the total households from
the SC (Scheduled Castes, mentioned as ‘dalit’ henceforth) community
interviewed, only one has self-owned land. The other four SCs (all neo-
Buddhists) are also cultivating encroached grazing lands13 and hadki
hadvala14 (Dhasal 1987). One of the Muslim households was cultivating
devsthan inam land15 in exchange for service they provide in an annual
religious procession (Table 5.2).

Profile of the study villages

Marathwada is a drought-prone area of Maharashtra and comprises
eight districts. It is home to 423,203 (14 percent of the total popula-
tion) SC households, of which 337,740 (79 percent) are deprived16 with
regard to various criteria as per the socio-economic caste census (SECC)
2011. Of the SC households in Marathwada, the SECC 2011 data show
that 61,228 (15 percent) of dalit households are dependent on culti-
vation, while 244,812 (57 percent) of households are landless and are
dependent on manual casual labour. For Osmanabad District, there are
47,749 (16 percent) dalit households among whom 37,754 (79 percent)
are deprived, and 27,931 (58 percent) dalit households are landless and
are dependent on manual casual labour as their main income source.
As per Census 2011, the dalit population of the three villages under
study is greater compared with the percentage of the SC population in
Osmanabad District (16 percent) or Tuljapur Taluka (16.8 percent). Aps-
inga village has the highest SC population at 1,338 (29 percent) followed
by Katri with 321 (27.4 percent) and Kamatha with 440 (23.6 percent)
villages (Table 5.3).

Table 5.2 Caste-wise details of other kinds of land cultivated by tenants

Religion/caste Total number of Number of tenants cultivating other than

category lessees leased-in land17

General 12 12
OBC 3 3
SC 11 5
Muslim 6 2
Total 32 22
 Maharashtra Land Leasing Bill, 2017 111
Table 5.3 Area and population details in the study villages

Region Total Total Total Total SC

geographical population households population18
area (in
hectares)

Osmanabad 772,550.45 1,376,519 296,494 221,325 (16.1)

District total
Tuljapur District 156,884.79 226,527 47,223 38,051 (16.8)
total
Katri village 769 1,170 236 321 (27.4)
Apsinga village 2534 4541 920 1338 (29.4)
Kamatha village 1155 1867 386 440 (23.6)
Source: Census 2011

Table 5.4 Land ownership in the study villages

Village Katri Apsinga Kamtha

Total households 241 928 408

Households owning land 144 341 152
Percent of households owning land 59.8 36.7 37.3
Households owning 2.5 acres or more irrigated land 4.2 1.4 2.2
with at least one piece of irrigation equipment (in
percent)
Households owning 5 acres or more land irrigated for 3.7 3.2 2.2
two or more crop seasons (in percent)
Households owning 7.5 acres or more land with at 3.3 0.8 2.2
least one irrigation piece of equipment (in percent)
Landless households deriving major part of their income 29.9 37.9 44.9
from manual casual labour (in percent)
Source: SECC data 2011

Landownership and labour

As per the SECC 2011, the households owning land in Katri village num-
ber 144 (60 percent), 341 (37 percent) in Apsinga, and 152 (37 percent) in
Kamtha, indicating a high percentage of landlessness (Table 5.4).
The SECC data, 2010–11, show that in Katri village, 118 households
(49 percent) are engaged in cultivation, while 99 households (41.1 per-
cent) derive their income from manual casual labour. In Apsinga village,
338 households (36.4 percent) earn their income from cultivation and
437 households (47.1 percent) from manual casual labour. In Kamatha
village, 131 households (32.1 percent) are engaged in cultivation, while
270 (66.2 percent) are engaged in manual casual labour. Households
dependent on manual casual labour for their livelihood are more numer-
ous in Kamatha and Apsinga, while in Katri more households are depend-
ent on cultivation rather than manual casual labour (Table 5.5).
112  Seema Kulkarni and Pallavi Harshe
Table 5.5 Household sources of income in the study villages

Village Total number Main source of Main source of household

of households household income – income – manual casual
cultivation (%) labour (%)

Katri 241 49.0 41.1

Apsinga 928 36.4 47.1
Kamatha 408 32.1 66.2
Source: SECC data, 2010–11

Land use, irrigation, and cropping patterns

Land use data from Census 2011 show that out of the total geographical
area in Osmanabad,700,987.4 hectares (90.7 percent) are the net area sown
which are almost equal to Tuljapur taluka (141,828 hectares [90.4 percent]).
For the villages, the percentage of net sown area is less compared with the
district and taluka percentages. For Katri village, the net area sown is 642
hectares, or 83.5 percent); for Apsinga village, 934 hectares (36.9 percent);
while for Kamatha village, it is 873 hectares (75.6 percent). The lowest net
sown area is in Apsinga village, which has 454 hectares (17.9 percent) of
forest area, while 828 hectares (32.7 percent) is barren and uncultivable land
area. As per the District Socio-Economic Survey 2017, Osmanabad District,
irrigated area is 11.62 percent, and for Tuljapur taluka, irrigated area is
15.81 percent.
The District Socio-Economic Survey from 2006 to 2017 shows an increase
in area for crops such as soya bean, onions, fruits, total crushed grains,
fibrous crops, cotton, vegetables, pulses, tur, Bengal gram, corn, and sug-
arcane, while there is a decrease in area under cultivation for rice, Jowar,
Bajra, chillies, spices, groundnut, sunflower, etc.
In 2006, there was no area under soya bean cultivation, but in 2017 the
area growing soya bean was reported to be 208,966 hectares for Osmanabad
District. The area under onion cultivation increased from 2,805 hectares
in 2006 to 7,085 hectares in 2017 for the district. The area under Jowar
cultivation for both Osmanabad district and Tuljapur taluka was 53,365
hectares in 2006; this was reduced to 46,907 in 2017. This shows a shift
from traditional food crops to more cash crops which can provide some
cash in hand.

Key findings of the study

Leasing patterns
The 32 tenants who were interviewed under the study had leased-in land
from 45 landowners.
 Maharashtra Land Leasing Bill, 2017 113
Table 5.6  Duration of leases in the study villages

Village 1–5 years 6–10 years 11–20 years Not available

Katri 2 3 0 1
Apsinga 11 8 5 6
Kamatha 3 2 0 4
Total 16 13 5 11

Analysis regarding the leasing pattern reveals that the majority of tenants
lease in land from a single owner (22); eight tenant farmers stated that they
have leased in land from two to three owners. The total area of land leased
in by a tenant ranges from 1 acre to 10 acres. Out of 32 tenant farmers,
seven have leased in land between 1 to 2.5 acres, eight between 2.5 to 5
acres, ten between 5 to 10 acres, and seven above 10 acres.
As shown in Table 5.6, a total of 18 tenants cultivated land between six
and 20 years from one owner. Three dalit tenants complained that they were
not allowed to cultivate the land for longer periods, as the landowners feared
that the tenants might claim rights on the leased-out land. The landowners
preferred to change the tenants every alternate year. This break in contracts
prevented the tenants from making any long-term investments for improv-
ing the production as the landowners kept changing almost every year or
two. All of them were oral contracts. One local activist explained that this
trend is common among the dalit tenants, as they are not recognised as ‘tra-
ditional cultivators’, that is, being a landed caste and agriculture being the
primary occupation. They take the land on lease; if they find that cultivation
would help them make a profit in a particular year, they go for leasing in the
field; otherwise, they will leave it as soon as it becomes unaffordable. He also
shared his observation that dalits do not have enough equipment to continue
working in agriculture; hence, they cannot sustain operations for a longer
period and have to leave farms in between. Regarding leasing patterns, the
tenant farmers of Kamatha village expressed their view that leasing terms
and conditions are many times unfavourable, leading contracts with shorter
durations.

Terms and conditions prevalent under

informal arrangements

Types of contracts
Of land leased from 45 owners, the contracts were verbal in 42 cases and
written in three cases (Table 5.7). Verbal contracts are done both in the
case of sharecropping or leasing-in based on a fixed rent. But all the share-
croppers have necessarily entered into verbal contracts. In two cases, the
114  Seema Kulkarni and Pallavi Harshe
Table 5.7 Type of contract and terms of leasing-in

Type of contract Lease arrangements

Rent Sharecropping Exchange of loan/monetary help

Verbal 2 39 1
Written 1 0 2
Total 3 39 3

landowner leased out land in exchange for monetary help extended by the
tenant; in these cases, the tenant farmers were entitled to share in the whole
harvest. In the three cases in which a written agreement was produced, the
terms were recorded on a simple piece of paper; not having the contract on
stamped paper reduces its legal value to nil. These written agreements are
mainly prepared either when the owner leases out the land in exchange for
help extended by the tenant and subsequently allows the tenant to cultivate
the land for a mutually agreed-on period or when the land is leased out for
a fixed annual/more than a year rent.

Cost- and produce-sharing arrangements between tenant

and owner
Discussions regarding cost- and produce-sharing arrangements with tenants
revealed that there are many unwritten yet normative rules that are preva-
lent among tenants and owners; it is expected that both will abide by these
norms. In all verbal contracts, sharecropping arrangements were such that
the input costs were shared by the owners and tenants; these shared costs
were always unequal, with the tenant bearing the larger burden. For exam-
ple, in the case of Karim Kajhi, a tenant from Apsinga, the owner shares the
costs of land preparation if the ploughing is done by tractor, sowing as well
as other inputs such as seeds, fertilizers, insecticides, and all costs related
to the harvest and post-harvest of onions. All labour-intensive costs such
as weeding, trenching, preparing raised beds, and similar tasks are paid for
by the tenant. These together constitute about 75 percent of all the tasks
involved in onion cultivation. The owners in Kamatha rarely shared the
input costs yet made sure that the quality of inputs used – seeds, manure/
fertiliser, etc., were good. Uttam Gore, one of the tenant farmers said that:

Sharing of inputs is a very recent trend prior to which all the expenses
had to be incurred by the tenant. Until two years ago tenants were not
bargaining, but when the input costs were higher than the returns, we
started arguing with the owners and negotiated with them to share
 Maharashtra Land Leasing Bill, 2017 115
some of the input costs. This forced the owners to at least share part of
the input costs.

Crop-related arrangements are different for each crop. For example, input
costs for onion and soya bean were shared 50/50 for some tasks/inputs
between owner and tenant. Fifteen tenant farmers shared this information.
The costs of ploughing by tractor, seed, fertilisers, and pesticides were split
equally pre-harvest, and so were the harvesting and post-harvesting costs
such as grading, sorting, transportation, etc. Labour costs for sowing, weed-
ing, etc., which is largely family labour, was borne by the tenant farmer.
For food crops, such as Jowar, the cost was largely borne by the tenant
farmer. In four of the 12 cases where Jowar was grown, the costs of fertiliser
were shared evenly and in two cases seed costs and harvesting costs were
shared by the owner. Choice of crops usually remains at the owners’ discre-
tion; the tenants do not always accept the choice whole-heartedly. Popat
Rokade, an SC from Kamatha village, said that:

If we are allowed to take Jowar after the onion, we could easily produce
10–15 sacks of Jowar. We also get fodder by cultivating Jowar. It is
profitable for us but owner does not allow us to cultivate it.

The terms of contracts in each of the three villages varied. Kamtha village
had the most unfavourable sharing agreements as far as the tenant was con-
cerned. The relationship between owner and tenant was tense and according
to Vasant Rokade, former sarpanch (Gram Pradhan – elected representative
as a village head under Panchayati Raj, local governance system) of the
village, Kamtha had few people employed in cities and away from their vil-
lages compared with Katri and Apsinga villages. The requirement for leas-
ing out land for the absentee landlords was thus greater in Apsinga and
Katri. In Kamtha village, the farmers prefer to cultivate their own land and
are thus in a better bargaining position when leasing out their lands; the
reverse is true in Apsinga and Katri villages. Large landowning size and
non-availability of labour for farming determines the terms and conditions
of the contract. Terms of leasing are better when landowners have some
compelling reasons to lease out their land.
With regard to leasing-in on rent, one case had a written agreement while
the other had a verbal contract. One tenant gave an example of how the
rent on the land he had leased in was raised ad hoc when he reaped a good
profit from onions in one year. The owner increased the rent and the tenant
could then no longer afford it but still continued to lease in the same land in
the hope of realizing a profit in subsequent years. Although this study does
not build adequate evidence on the relationship between caste and the terms
of lease, dalit tenants from Kamatha village did complain of unfavourable
terms and conditions. This has also been highlighted by a study done by
116  Seema Kulkarni and Pallavi Harshe
Sukhdev Thorat in 2003 in three villages in the states of Odisha, Guja-
rat, and Maharashtra, where he shows that the 22 dalits who had taken
agricultural land on lease to cultivate faced differential treatment either in
the form of refusal to rent land by the upper castes or through renting of
land on unfavourable terms and conditions (Thorat et al. 2011). Caste thus
does impact the nature of leases and the terms and conditions of the lease
arrangements. In the current scheme of the bill, this understanding of caste
dynamics and resultant effects on mutual agreements is completely missing.

Verbal contract: insecurity of tenure

Verbal contracts were preferred by owners over written ones as they feared
that they would lose their rights under the stringent tenancy law of the State.
Tenants initially were not forthcoming about the problems they have with
oral contracts. Initially, they responded that most agreements are based on
mutual trust and long-standing relationships with the owners; on further
probing, they did discuss the problems they faced because of verbal con-
tracts. When asked why they don’t insist on a written contract, Madhukar, a
tenant farmer responded, ‘None of the owners give land to cultivate on writ-
ten contract. If we insist for written contract, they will not give their land
for cultivation’. Others said that whenever they have asked for a written
contract, the owner has rebuked them by saying, ‘If you want to cultivate,
then do it without a written contract or else leave it’. Tenants who are keen
on leasing in therefore have refrained from asking for a written contract.
This indicates that tenants do not have the bargaining power to decide on
either the terms of the contract or the nature or decision making around
crops. In this context, the Land Lease Bill in Maharashtra State would make
compulsory the registration of the written agreement, in the hope of helping
the tenants.
There were many examples of tenants leasing in from one particular
owner and that too for many years. The exceptions were the tenants from
the neo-Buddhist community – many of them complained that they were
not allowed to cultivate for longer durations, that is, more than 12 to 24
months. Other tenants said that they lease in only if the owner is trustwor-
thy. When they were asked the implications of the absence of a written
contract, they said that they themselves did not have any negative experi-
ence but had seen injustices happen to others. Tenants expressed fear of an
ad hoc termination of a lease, abandoning the agreement when the crop is
standing in the field, or the owner usurping the entire produce, cheating in
an economic transaction. They also expressed their helplessness in such situ-
ations, saying that they were left only with the option of not leasing-in land
from the owner in the subsequent year.
Uttam Gore from Apsinga village shared his experience:

If the owner keeps all the produce and doesn’t give anything to the ten-
ant, the tenant is not left with any option. I was cheated by my previous
 Maharashtra Land Leasing Bill, 2017 117
landowner. I spent from my own pocket and grew sugarcane on leased
in land. I did all the hard work and when the crop was ready for har-
vest, the owner sold the produce without consulting me. I suffered a loss
of 2–3 lakhs. I refused to lease in his land for the next cultivation year.
What else could I do? I didn’t have any documents to prove.

With no evidence in hand and no money to fight in court, Uttam had to

bear the losses. Uttam Kadam from Katri village was also cheated by the
owner, who refused to share the Jowar crop with him. When Uttam asked
him for his share, the owner asked him to show the proof that he had culti-
vated the land. He subsequently stopped cultivating that owner’s land.
In the case of crop failure resulting from various causes, it is the owner
who receives the compensation; this is not shared with the tenant. Saiyyad
said, ‘If we incur loss due to natural calamity, we can’t do anything. It’s our
bad luck. Neither the government nor the owner listens to us. No one takes
responsibility.’ Saiyyad tried to put up a fight and argued with the owner. He
even went to the bank manager to tell him that the compensation amount
had to be shared with him as a tenant. However, lack of documentation
forced Saiyyad to stay quiet and eventually withdraw.
One of the respondents had a positive experience with the owner who did
share the compensation with him; however, in the past two years the owner
has stopped doing that.
The written contract on simple paper also has its limitations. Madhukar
Vidhate from Apsinga village said that 15 years ago he had leased in land
on rent for five years through a written contract. But the very next year the
owner’s brother applied pressure and took back the land after holding a
panchayat meeting and ending the contract. The tenant was from the dalit
community. Subsequently, he preferred taking on land for short-duration
leases. He added that owners also prefer short leases over long ones.

Cropping and irrigation patterns in leased-in land

Most of the tenants prefer to take irrigated lands on lease. Of the 45 landown-
ers from whom land was leased in, 22 had partially irrigated land which had
some source of irrigation for part of the year; 16 owners had irrigation year-
round, and only three of them had non-irrigated lands. So, the majority of
tenants had leased-in land with irrigation sources, with a few who had leased
in non-irrigated land as well. Irrigated land helps them to sustain livestock
which is one of the reasons for leasing in land for cultivation. Subhash from
Apsinga said, ‘I have leased in land which has a bore-well, although it goes
dry in summers. I can provide water to my livestock and they also get fodder’.

Reasons for cultivating leased-in land

Leasing has not been very profitable for tenants, especially for those culti-
vating onions. The cost of cultivation of onion as outlined by the tenants
118  Seema Kulkarni and Pallavi Harshe
is in the range of INR15,000–135,425 per season. Of the nine farmers cul-
tivating onions, six had incurred losses. Yet, onions are cultivated partly
because the owners insist and partly also because tenants hope that at least
one year will provide them with good profits to make up for earlier losses.
One of the tenants mentioned that two to three years ago, the rate of onion
went up to INR 60 per kilogram and that allowed him to turn a decent
profit and invest it in agriculture, such as purchase of land or, more com-
monly, towards renovation of their house, daughters’ marriage, etc.
Other reasons outlined by the male tenants leasing in land included liveli-
hood for family, meaningful work for themselves and their families, avail-
ability of water and fodder for livestock for the whole year, etc. For some it
was more respectable to lease in land rather than work as wage labourers
elsewhere. Conversely, many of the women were against leasing in land.
Their argument was that by working as labourers, they were able to earn
wages, while if they worked the leased-in land, it was usually unpaid labour
for them, as the entire control of the land was with the men of their house-
holds and the landowner. Women also believed that the uncertainty of agri-
culture did not guarantee profits, and hence they often tried to convince
their husbands not to lease in land. For men, the lack of meaningful and
gainful employment outside was a compelling reason to lease in land.
Upper-caste farming families who are traditionally cultivators are fully
prepared and have all the assets for cultivation. They lease in land with the
hope that it will increase their income. The number of family members who
can work in the field also is a reason why tenants lease in land as it reduces
the burden of renting labourers and reduces the cost and provides work to
all family members.

Reasons for leasing out land

Landowners were not forthcoming about sharing information and therefore
the perspective regarding leasing out is largely that of the tenants, not of the
owners. Some of the chief reasons that owners leased out their land were:
the non-availability of labour in the villages, absentee owners who did not
want to keep their land fallow, and owners who were single women.
According to Kumar Kadam, an upper-caste tenant farmer, ‘Presently the
young generation is attracted towards cities; hence there is lack of labour
in the village. The educated youth do not prefer to work on their respective
fields. Hence, there is more demand and less supply of labourers.’ According
to Kadam, the situation is such that 20 farmers require labour at the same
time. Every farmer requires approximately 10 women agricultural labourers
but get only five. Hence, their rates increase, and sometimes they have to
pay wages up to INR 200–300 per day. In the onion season, this rate can be
as high as INR 500 per day. Similarly, to keep the labourers happy and call
them on their fields, owners need to accept other demands of the labourers,
which increases the petty expenditures of the farmer as well. On the whole,
 Maharashtra Land Leasing Bill, 2017 119
this landowner, who is also a tenant, thought that the labourers – referring
especially to the dalits – had become ungrateful and arrogant. However,
Vasant Rokde, a former sarpanch and a tenant himself belonging to the
dalit community, thought otherwise. He said that times have changed, and
the dalits are not going to take everything lying down. The young among
the community are engaged in construction work and have moved to towns
or cities. Some are educated and in jobs outside the village. This has meant
that landless labour is not available to the farmers anymore. Their women
are forced to come out and work in the fields, something that had never hap-
pened earlier. They themselves have now had to labour in the fields, and this
is what makes them speak of the dalits in such a manner.

Demands of tenants
One of the demands emphasised by tenants was the need for a minimum
support price for the produce. Markets are volatile and, despite a good
harvest, often the returns are not good because of poor price support. On
several occasions tenants have had to throw away the produce. The second
demand was related to the compensation given by the government in case
of crop failure. The owner has access to the entire amount of compensa-
tion despite the fact that the costs have been incurred by the tenant. Ten-
ants also believed that contracts should be written out, not verbal, so that
they have proof of the arrangement. They were, however, sceptical as to
whether such a change would ever come about. Another set of demands
included land for the landless (emphasised by dalit women), support for
dairy farming, access to loans, government schemes for tenant farmers,
government support for sowing, and several other inputs to make farming
a viable activity.

Discussion: Is protecting tenants or landowners

in the neoliberal era possible?
The entry point for the present study was to explore whether or not the
Land Lease Bill would protect the rights of tenants and if so, would it actu-
ally open up spaces for women’s collectives or small, marginal farmers and
landless peasants to individually or collectively take land on lease for meet-
ing livelihood needs by providing the security of tenure. However, the bill
seems to do the reverse as it pushes back the land reform agenda and brings
in economic contracts on mutually agreed terms, thereby leaving the tenant
helpless. The increasing number of farm suicides and the rise in rural unem-
ployment are, as we have seen earlier, the manifestations of such a crisis.
The verbal nature of contracts, the unfavourable terms of cost- and
produce-sharing, the lack of choice in cultivation of crops, and the lack
of access to institutional credit and insurance for crop failure are clearly
emerging as concerns for tenant farmers. These unfavourable terms have
120  Seema Kulkarni and Pallavi Harshe
often meant huge losses for them; therefore, there is little or no incentive for
them to reinvest in tenant farming.
Women from these households have preferred paid wage labour over
unpaid wage work that they must do on the leased-in farms. Can the Land
Lease Bill of 2017 address these concerns? Evidence from this study and
other secondary sources suggest that the Government of Maharashtra should
promptly address the question of land reform by settling several claims on
ceiling surplus, tenancies, gairan (pasture) lands, and forest rights, for exam-
ple; it should commission a study on the extent of land leasing in the state
and call for a wider consultation on the issue before introducing legislation.
Yet, we think that we need to find answers to provide support to increasing
instances of collective farming, especially among women’s groups who are left
to fend for themselves on their own fields or labour in the fields of others. Can
there be a model that provides them secure tenancy agreements?

Mutually agreed but unequal!

Section 3(4) of the bill mandates that lease agreements must be written and
registered under the relevant law. While this is a welcome step, it is impor-
tant to understand that the Act leaves the rest of the terms of understanding
entirely to a mutual agreement. So, while the bill states in its objects that effi-
ciency and equity are its goals, it assumes that, in a society based on social and
economic discriminations, the terms of agreement would be in the interests
of both concerned parties. Study findings clearly show how gender, class, and
caste intersect to determine the terms and nature of the contracts. Tenants are
unable to set the terms with reference to cost- and produce-sharing or even in
matters of choice of crops and the inputs to be used.
If leasing were to be formalised, the mutuality clause would have to be
removed and a clear instruction to fix a range – the upper and lower limits
for a sharing arrangement, whether in cash or kind – would have to be
stated. Floor and ceiling lease rates would have to be decided for different
states and for differently endowed regions as well. For example, rain-fed
areas may need a different set of rates compared with irrigated areas. Such
floor and ceiling rates are more likely to protect the tenants, especially as
seen in the case from the present study in which the owner increased the
land rent ad hoc in response to the profits drawn by the tenant.

Access to credit and crop insurance

The right to get credit under sub-section ‘e’ of section 5 of the bill is based
on very uncertain criteria. Here, the onus to decide whether to accept the
expected value of production of leased-in land as collateral lies on the insti-
tution. The criteria seem to be very uncertain, and hence there would only
be rare occurrences in which the tenant would benefit from provisions in
this section.
 Maharashtra Land Leasing Bill, 2017 121
The provision for crop insurance, disaster relief, or any other benefits
or facilities provided to the farmers by the State or Central Government
is mentioned in sub-section ‘f’ of section 5. However, this is based on the
mutually agreed lease agreement which does not favour the tenant. Here
the State needs to play a strong proactive role to protect the interests of the
tenant rather than an ambiguous one which favours the owner. Unfortu-
nately, the bill does not take into consideration the unequal power relations
between the owner and the tenant based on caste and class and its negative
implications on bargaining capacities of tenants in such negotiations.
The Maharashtra Bill and the Model Act did not build in clauses that
would have protected the interests of tenants, for instance, while the NITI
Aayog’s report of the Expert Committee on land leasing talks about facili-
tating all tenants to access insurance and bank credit against pledging of
expected output, the Act leaves it to the tenants’ own efforts to access these
support systems. Institutional credit and protection against crop failure
were two of the main demands that tenants have articulated. The bill does
not have a robust mechanism to include this in a definitive way. The volatil-
ity of prices and the increasing cost of production make the tenant farmer
far more vulnerable than the one with a land title.
Many farm movements have been asking for more express guidelines
from the RBI (Reserve Bank of India) to bankers regarding greater sup-
port to tenant farmers and for the government to set up a credit guarantee
fund to bolster banker confidence. Further, the Bhoomiheen Kisan Credit
(credit scheme for landless farmers) can be scaled up to cover tenant
farmers in a joint liability groups (JLG) approach but with more invest-
ments built into building up the JLG of such tenant farmers into workable
institutions.
In its current form, the entire onus of a successful lease arrangement rests
on the shoulders of the owner and the tenant, with the State only possibly
facilitating the process. The Rural Development, Agriculture, and the Rev-
enue departments do not seem to have a role in registering the leases and/or
regulating and monitoring them. The bill should have mandated these state
government departments to proactively record and register all lease agree-
ments and share the database on a seasonal or yearly basis with bankers for
credit, run special camps to enrol tenant farmers for crop insurance, ensure
that at the time of disaster relief payments, such data are accessed by the
competent authorities preparing the cheques, etc.
Undivided Andhra Pradesh introduced the Land Lease Cultivation Act,
2011, and issued loan eligibility cards to all registered lessees. However, the
implementation of the Act has not been very successful so far (Revathi 2016).

Potential for women farmers’ collectives

One of the potentials of the bill in the context of collective land leasing,
especially for women farmers, is similar to the Kudumbashree in Kerala
and SERPP model in Andhra Pradesh, as mentioned in the NITI Aayog
122  Seema Kulkarni and Pallavi Harshe
report. However, in the current context of Maharashtra, the bill in its pre-
sent form provides no hope for women farmers’ collectives for land leas-
ing. The much-cited example of Kudumbashree should be understood in the
light of the strong support of the state in ensuring equity and efficiency in
use of resources in an ecologically sound way. Convergence of rural employ-
ment schemes, agricultural credit and other inputs, and strengthening of
local self-government has created a pathway for success in Kudumbashree,
thereby underscoring the role of the welfare state rather than its withdrawal,
representing a typical feature of neoliberalism.

Land to the tiller: missing agenda

The slogan, ‘land to the tiller’, became important soon after independence,
especially with regard to recognising the occupancy rights of tillers. The
starting point of the Land Lease Bill, however, is to negate the rights of ten-
ants on the ground – the current tenancy laws constrain the landowner and
the tenant from entering into formal contracts. In a bid to protect the rights
of the owners, and make land available for the landless for cultivation, the
bill states that all existing acts related to tenancy would be overruled by
the 2017 bill. However, the pending claims of tenants under the tenancy
laws would be protected. This clause misses out on the fact that claims
are being continually filed by tenants for ownership rights. If the 2017 bill
does become a law, such new claims would then not be entertained, which
effectively means that land redistribution would not take place – this also
indicates the changing role of the State in the neoliberal era.

Concluding comments
The Maharashtra Bill represents the neoliberal state in many ways – first, it
falls short in protecting the tenants’ rights. Second, although it stresses the
registration of leases, it allows for lease agreements to be mutually decided
between the landowner and the tenant. By doing so, it undermines the role
of unequal power relations among castes, class, and genders in determining
the terms and nature of contracts. Third, the bill leaves several questions
unanswered with reference to the ‘land to the tiller’ agenda, which is still
actively being pursued by tenants in different parts of the state. Fourth, it
does not engage with the question of landless/women farmers’ collectives
that are looking at security of tenure even for the short duration leases that
they enter to. By undermining the role of the State in promoting the welfare
of landless and women farmers, the Land Lease Bill seems to be promoting
an agenda for liberalising leases and freeing up land for capitalist forms of
agriculture.
All the findings of the field study suggest that State regulation in ten-
ancy needs to be in favour of poor tenants. A withdrawal of tenancy laws
 Maharashtra Land Leasing Bill, 2017 123
as recommended by the Expert Committee on Land Leasing, 2016, would
work against the interests of the poor.

Notes
1 These are the questions that the national-level network Mahila Kisan Adhikar
Manch (MAKAAM), agriculture researchers working with women farmers,
advocates of rights of women farmers working on the question of land, water,
women, and marginalised groups, ask, in order to bring about change.
2 An administrative term, used to indicate a geographical territory – taluka (block),
tehsil (sometimes equivalent to a district)
3 One of the authors of the article has also worked in all the three study villages
for more than ten years.
4 Other Backward Classes
5 Scheduled Castes
6 Marathas are famed in history as warriors and consider themselves as a sub-
caste of kshatriya, one of the varnas of Hinduism. Their homeland is the present
state of Maharashtra. Within the Marathi-speaking region, the social designa-
tion ‘Marathas’ refers to the single dominant Maratha caste or to the group of
Maratha and Kunbi castes. Retrieved from www.britannica. com/topic/Maratha
(Accessed on 12 September 2019).
7 Vani is an occupational community of merchants, bankers, money lenders, deal-
ers in grains or in spices, and in modern times numerous commercial enterprises.
It is a sub-caste of Vaishyas, one of the varnas of Hinduism. Retrieved from
www.revolvy.com/page/Bania-%28caste%29 (Accessed on 12 September 2019).
8 Mali is an occupational caste found among the Hindus who traditionally worked
as gardeners and flourists. In the Hindu varna system, they are a sub-caste of
shudras (the varna at the bottom).
9 Traditionally, the Teli are an occupational caste of oil-pressers. Retrieved from
https://peoplegroupsindia.com/profiles/teli/ (Accessed on 12 September 2019). In
the Hindu varna system they are a sub-caste of shudras.
10 ‘Chambhar’ is the word for Chamar in Maharashtra. Their hereditary occu-
pation is tanning leather. Members of the caste are included in the officially
designated Scheduled Castes (also called ‘dalits’); because their hereditary work
obliged them to handle dead animals, the Chamars were among those formerly
called ‘untouchables’. Retrieved from www.britannica.com/topic/Chamar
(Accessed on 12 September 2019).
11 Dhangar is the shepherd caste of Maharashtra. In Maharashtra, they are classi-
fied as Nomadic Tribes.
12 Vanjaris were grain carriers and traders of commodities.
13 Grazing land or community land is a part of the common property resource of a
village. The major purpose of grazing lands is to ensure common land for graz-
ing of the cattle of the village.
14 Namdeo Dhasal has defined it in his novel ‘Hadaki Hadwala’ as the collective
inam land given to Mahars.
15 Devasthan  land means a village, portion of a village, or land  held under a
devasthan inam.
16 The SECC 2011 measures deprivation using criteria such as the number of
deprived households with deprivation criteria: Only one room with kucha walls
and kucha roof, no adult member between the ages of 16 to 59, female-headed
households with no adult male member between the ages of 16 to 59, disabled
member and no able-bodied adult member, SC/ST households, no literate adult
124  Seema Kulkarni and Pallavi Harshe
above the age of 25 years, and landless households deriving a major part of their
income from manual casual labour.
17 Self owned, hadki hadvala, encroached grazing land, devsthan land
18 The percentage of the SC population to total population of a village is shown in
brackets.

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accessed on 12 April 2019.
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from https://socialistregister.com/index.php/srv/article/view/5811 accessed on 14
December 2018.
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6 Customary rights and
traditional wisdom Sonali Ghosh and Chandra Bhushan KumarCustomary rights and traditional wisdom

Furthering land governance

in Northeast India
Sonali Ghosh and Chandra Bhushan Kumar1

The region is bountifully endowed with bio-diversity, hydro-potential, oil

and gas, coal, limestone and forest wealth. It is ideally suited to produce a
whole range of plantation crops, spices, fruit and vegetables, flowers and
herbs, much of which could be processed and exported to the rest of the
country and worldwide. Markets must be developed and problems of trans-
portation, power, infrastructure, finance and services overcome. Its natural
beauty, serenity and rich flora and fauna invite trekking and tourism.
(Planning Commission 1997: 2)

For more than two decades, the development deficit of the northeastern
region (NER) vis-à-vis mainland2 India seems to have found attention in
the governance discourse.3 The aftermath of the partition of 1947 impacted
the political and economic structure of the region to a great extent not only
because it lost out its seamless mobility, but also because it took consider-
able efforts to redraw political boundaries. The liberalisation era, from the
early 1990s, ushered in an era of re-examining the terms of engagement for
the mutual benefit of the region as well as of the country (Planning Com-
mission 1997; NEC 2017). Land, the most visible resource of the region,
occupied a significant position in designing and advocating a new type of
development regime.
The pre-1947 era witnessed a distant frontier policy being adopted in
most of the hill areas of the NER by British India. After independence, the
new State hesitantly approached the methods of governance using the instru-
ment of schedule areas.4 Verrier Elwin (1902–1964),5 an anthropologist,
was appointed as a tribal advisor to the first prime minister. Elwin, drawing
from his experiences of working in Central India, advocated a middle-path
philosophy of least interference in his celebrated book A Philosophy for
NEFA (1956).6 This was a departure from the past, yet critics found it insuf-
ficient to address the absence of modern development. In 1997, concerned
with the presence of insurgency in some pockets in NER and lack of devel-
opment, the erstwhile Planning Commission of India7 prepared a report
entitled Transforming the North East,8 which claimed the NER ‘has vast
 Customary rights and traditional wisdom 127
potential resources but little or no “plan” resources to-day’ (Planning Com-
mission 1997: 3). The report further stated that the need to tap the abundant
resources was advocated with some caution. It should be ensured that the
process of modernisation and development does not subvert the salutary fea-
tures of the social collectives operating at the grassroots in tribal areas, nor
destroy biodiversity through indiscriminate propagation of uniform varieties
for the short-term profit of the corporate sector (ibid.: 13). This change in
the approach of intervention was not sudden. The debates in the Constituent
Assembly during 1946–1949 concerning sixth-schedule governance in NER
describe these two diverse strands. In the neoliberal world, modern India
thought it necessary to unleash the locked potential of NER.
The newer approach drew its voice from emerging political elites standing
on the precincts of formation of legislative bodies in these states, based on
electoral representation. Its exposure to a modern way of life and necessity
to navigate a modern state started an era of looking at the surroundings as
a resource to be harnessed. Aspirations and competitiveness became new
drivers to guide the development process. Even as the pace of development
in the NER seemed slow, several roadmaps for the future started to appear
in the discourse. Instead of community, the State started taking the lead in
setting this discourse. However, on ground, it still required, depending upon
the power structure, considerable negotiations to facilitate the utilisation of
resources, mainly land. Neoliberal ideals had to provide manoeuvring space
in this new environment.
The State’s public purpose, ranging from schools, health centres, roads,
electricity, administrative centres (including official colonies) to large facto-
ries, hydropower projects, railways, airports, etc., became obvious grounds
for acquiring land in the new regime. Like other regions in the country, the
Land Acquisition Act, 1894, remained its instrument. But the NER, except
for the Assam plains and Manipur valley, was different – politically, socially,
and culturally.
Land in NER is dominated by forest, with pockets of shifting cultivation.
Out of this, the fact that almost 70 percent is forest cover also complicates
the question of acquisition. Ethnic diversity of the region poses another
challenge. In Arunachal Pradesh, at least 26 major tribes have practised
different patterns of land engagement since time immemorial. Evolution of
modern polity in these areas has been sudden which impacted the process of
land acquisition. Emergence of a neo-middle class (Walker 2008) in the new
digital world of the twenty-first century brought more complexities to the
overall development discourse.
Land has diverse connotations within every region. The idea of develop-
ment in the NER, it seems, never structured around the question of this
multiple meaning of land. It was always seen in abundance and available
(Dikshit and Dikshit 2014). The initial process of engagement made the
realisation of the complexities obvious. Neoliberalism has evolved as an
idea with three intertwined manifestations: (1) an ideology, (2) a mode of
128  Sonali Ghosh and Chandra Bhushan Kumar
governance, and (3) a policy package (Steger and Roy 2010). In a soci-
ety still rooted in a traditional relationship with its natural resources, the
neoliberal idea has disrupted the existing relationship and created new
arrangements, which are both successful and unsuccessful simultaneously
(Igoe and Brockington 2007). Its implications for Northeast India have
been appreciated and interpreted by various scholars. Debbarma (2018)
views land alienation as a main reason of ethnic conflict. Sitlhou (2015)
studies gender biases in Kuki landownership patterns in Manipur. In these
appreciations, the focus has been on the consequences of neoliberalism
in the transformation of inherent understanding and capacity of the local
community in shaping their relationship with the natural resources at vari-
ous levels. Advancing these arguments further, this chapter uses a specific
case concerning evolution of Balpakram National Park from a community-
protected forest in the state of Meghalaya and demonstrates that instead of
enforcement of the legal instrument of the Wildlife (Protection) Act, 1972,
the state negotiated with the local community for an arrangement of the
declaration of a national park, with a modified relationship of community
with the state.
The chapter is divided in five broad sections: first, it outlines Northeast
India as a territory; second, it describes patterns of land relationship in
various states in the Northeast; third, it opens up the question of forest,
which dominates not only the physical space but also the mental space in the
region; fourth, it suggests the need to investigate the question of relationship
with natural resources from the lens of hybrid neoliberalism; and fifth, it
documents the transition of Balpakram from the traditional to the modern
era as an example of hybrid neoliberalism.

Northeast India
The NER consists of eight states: Arunachal Pradesh, Assam, Manipur, Megha-
laya, Mizoram, Nagaland, Tripura, and Sikkim. These eight states together
have an area of 262,185 square kilometres, accounting for 7.98 percent of
India’s total land area, and have a population of 40 million which accounts
for 3.4 percent of India’s total population (Census 2011). About 70 percent
of the region is hilly, rugged, and generally inaccessible physiographic terrain.
With a cultural and ethnic diversity of tribes, the relative historical seclu-
sion and strategic location have combined to turn the region into an impor-
tant geopolitical unit of the country as well as in the world. The region has
remained overwhelmingly rural in seven out of eight states, wherein 84 per-
cent of the population live in rural areas (NIRD 2008). It shares international
boundaries with China, Myanmar, Bangladesh, Bhutan, and Nepal.
The NER is the homeland for a rich mosaic of more than 160 Sched-
uled Tribes belonging to five different ethnic groups and more than 400 dis-
tinct tribal and sub-tribal groupings speaking approximately 175 languages
along with a large, non-tribal population. Therefore, political progress in
 Customary rights and traditional wisdom 129
each state in the region has followed a different trajectory (Bhaumik 2010).
By 1987, all initial seven territories had acquired the status of independent
states; Sikkim as a state became part of the NER in 2002. However, varia-
tions in the administrative structure continued in the region (Table 6.1). In
land matters, this structure plays a critical role in facilitationg the process
of acquisition.
The abundance of land as a resource is evident based on the fact that
the lower human population density may suggest a favourable land-human
ratio compared with other parts of the country. However, a large portion of
the region is hilly, and almost 78 percent of farmers are categorised as small
or marginal (NIRD 2008). Tenurial patterns and practices are discussed in
the next section.
Natural resource conservation is necessarily linked to hills and forests in
the NER. Termed as a bio-geographical gateway for much of India’s flora
and fauna, it is also part of the eastern Himalaya biodiversity hotspot, one
of the mega-diverse areas of the world − a meeting ground of temperate
east Himalayan flora, the paleo-arctic flora of the Tibetan highland, and

Table 6.1 Constitutional status and administrative structure

States Special constitutional Administrative structure

provisions

Arunachal Pradesh Art.371H No Autonomous Councils,

the state has adopted the
Panchayati Raj
Assam Sixth Schedule read Three Autonomous Councils:
with Art. 371B (for (1) Karbi-Anglong, (2) Dima
Scheduled Areas Hasao, and (3) Bodoland
only) Territorial Areas District
Manipur Art.371C The Manipur (Village Authority
in Hill Areas) Act, 1956,
and the Manipur Hill Areas
District Council Act, 1971
Meghalaya Sixth Schedule Three Autonomous Councils:
(1) Khasi Hills, (2) Jaintia
Hills, and (3) Garo Hills
Mizoram Sixth Schedule read Three Autonomous Councils
with Art.371G of Pawi, Lakher, Chakma,
and other areas without an
Autonomous Council
Nagaland Art.371A No Autonomous District
Councils
Sikkim No Autonomous District
Councils
Tripura Sixth Schedule Tripura Tribal Area
Autonomous District
Council, Khumulwang
Source: Developed by the authors based on data from Planning Commission, 2006
130  Sonali Ghosh and Chandra Bhushan Kumar
wet evergreen flora of Southeast Asia. It contains more than one third of
the country’s total biodiversity. It represents an important part of the Indo-
Myanmar biodiversity hotspot and is one of the 25 global biodiversity hot-
spots recognised in the world (Myers et al. 2000). The Northeast has an
abundance of two key renewable resources that are significantly linked to
development and growth options – water and forests, which are connected
to each other in a variety of ways (World Bank 2007).
The NER accounts for one fourth of the country’s forest cover and inter-
twined with these forests are the livelihood, culture, and societal building
blocks of more than 400 tribal and sub-tribal groups with 175 dialects and
languages. The altitudinal variation and rainfall patterns of the southwest
and northeast monsoon play a significant role in the development of eco-
logical niches in this region of India. This reflects the importance of forest
resources for the northeastern part of the country (Poffenberger 2006).
The land and forest form an integral part of nature and society where
people interact. The land’s abundance in the NER facilitated the evolution
of a variety of traditional practices, depending on local conditions. Geo-
graphical isolation to some extent helped the hill tribes to become inheri-
tors and practitioners of these customary practices since time immemorial
(Elwin 1957).
Evolution of modern polity within the framework of the Constitution
witnessed the emergence of seven distinct states.9 Earlier, these states were
hill tracts and frontiers to be encountered from a distance only. These states
attempted to substitute the existing body politics at different layers (village
to state). The introduction of the concept of secret voting, development of
habitation based on non-farm occupation, and aspiration to acquire mod-
ern amenities and way of life collided with the traditional power structure
evolved over centuries. The state, gradually, started shaping everyday life.
Though clans remained a binding entity to charter the modern polity, there
existed an entity to facilitate the forging of new alliances among these clans.
Autonomous development councils, local bodies such as panchayats and

Table 6.2 Forest and community control in Northeast India

State Percent total recorded Percent of forest area under

forest area of state community control

Arunachal Pradesh 82 62
Assam 30 33
Manipur 78 68
Meghalaya 70 90
Mizoram 87 33
Nagaland 85 91
Sikkim* 82.31 7
Tripura 55 41
* Derived from SFR 2005. Source: Poffenberger 2006
 Customary rights and traditional wisdom 131
municipalities, and state legislative bodies became the new centres of power
to intervene and influence the way of life.
With the advent of the state, at least three factors brought a paradigm
shift in the neoliberal era, especially with reference to people’s engagement
with land and forest: (1) evolution of modern polity to pursue a common
purpose at a different scale; often it is premised on societal development
and not limited to a specific tribe; (2) spread of urbanization10; and (3)
emergence of aspirational culture (neo-middle class) in a new digital-age
environment. Before examining the implications of these factors for acquisi-
tion, it is necessary to understand the landownership and forest questions in
the region. The next two sections focus on these.

Landownership and its meaning in neoliberal NER

Two broad patterns of landownership arrangements have emerged in NER:
(1) revenue administration under the government operating in the plains
and valleys of Assam, Tripura, Manipur, and in the hilly state of Sikkim;
and (2) a customary land tenure system under village-level authority oper-
ating in the hilly states of Arunachal Pradesh, Meghalaya, Mizoram, and
Nagaland, and in the hilly parts of Assam, Manipur, and Tripura, with state
and regional variations (MoRD 2009; NIRD 2008). Important categories of
the local variants are presented as follows, summarising the existing tenure
systems in a respective state:

1 Nagaland: Traditionally and to the present, the land of most Naga tribes
is classified broadly into primary or agricultural land and reserved land.
The reserved land consists of (a) land kept for public purposes, includ-
ing forest land under the control of the village council; (b) clan or khel
land used by clan members; and (c) inherited or acquired, privately
owned land (Tamuly 1985).
2 Manipur: Among the Thadou tribe of Manipur, land is under the con-
trol of the village chief who, after consulting his ministers called Semang
Pachang,11 allocates jhum plots and ensures all families get an equal
share. Each family pays a tax for the land allotted to them (Rajkhowa
1986).
3 Mizoram: For the Mizos, land is under village council controlled by a
chief, who allocates land for jhum with the advice of experts on shift-
ing cultivation called Ramhual.12 Villagers pay taxes in terms of their
share of paddy. Previously the chief’s power with regard to land was not
touched by the British (Das 1990); however, the Government of Assam
abolished the chieftainship in 1954, through The Assam Lushai Hills
District (Acquisition of Chief’s Rights) Act, 1954, and brought land
under the control of the state. The present land tenure system in the
state of Mizoram is divided into two types: first, temporary land, mean-
ing temporary allotment and use of the land. The state issues a periodic
132  Sonali Ghosh and Chandra Bhushan Kumar
Patta (ownership document) through which land is allotted tempo-
rarily to the users. Periodic Patta means a prescribed land settlement
document settling the agricultural land periodically under these rules
whereby an individual or an organisation has entered into an agreement
with the authorities to pay land revenue, taxes, cesses, and rates legally
assessed or imposed with respect to the land so settled. Periodic Patta
holders do not have heritable and transferable rights. Second, landhold-
ers, where Patta holders of the land are given certificates after having
entered into an agreement with the authorities to pay land revenue,
taxes, cesses, and rates legally assessed or imposed in respect of the land
so settled. A Patta holder has heritable and transferable rights of use
and sub-letting, subject to payment of land revenue and taxes as stated
by the rules (Nongkynrih 2009).
4 Tripura: Tripura had a different regime with jhum land allotted by
the ruler through his collectors, who in turn were assisted by a village
Choudhury.13 Land was classified into six categories: (a) jhum land
belonging to the community and managed by the village authority and
a Choudhury: (b) nal, fertile land individually owned, inheritable, not
alienable; (c) lunga, land between hills for permanent cultivation allot-
ted to tribals with a yearly tax; (d) chera, land situated on both sides of
a river that is owned by villagers and allotted for cultivation; (e) bhiti
and bastu, individually owned and heritable but not transferable land
(Roy Burman 1986). However, very little remains because tribes are
reduced to a minority, and only individual alienable title is currently
recognised (Debbarma 2008).
5 Arunachal Pradesh: Landownership in Arunachal Pradesh varied from
tribe to tribe. For the Nyishi and Galo tribes, community land was
demarcated and managed by the village council. For the Adis, land
vested in the community was allotted by the chief to individual house-
holds (Agarwal 1991). Aka tribals had no tradition of community own-
ership, and each family cultivated as much jhum or riverbank lands as
needed (Fernandes and Bharali 2002).
6 Meghalaya: Khasis of Meghalaya have five broad categories of land:
(a) raid, community land managed by the village council and used only
by permanent residents for housing, common facilities, and agriculture;
(b) rykynti, private land; (c) clan land owned by the respective clans;
d) forest land divided into sacred forest, village community forest con-
trolled by the village darbar, protected forest for domestic use, not for
sale, and (e) individual forest used by the owner (Simon 1996; Dutta
2002). In the Garo tribe, land was traditionally under the control of
the Chief (Nokma), while homestead plots were owned by the com-
munity (Kar 1982). At present, hilly land, almost 95 percent of the
total land, is covered by customary law, while plains lands are governed
by the Assam Land and Revenue Regulation Act of 1886, adopted by
the Garo Hills Autonomous District Council in 1952 (Phira 1991). In
 Customary rights and traditional wisdom 133
the Jaintia territories of Meghalaya, community land was owned by
the Chief, Syiem,14 till the British colonial government acquired all the
rajhali (Syiem’s private land), which was subsequently given to tillers
against Pattas for ten years and subjected to land revenue (Pyal 2002).
7 Assam: The landownership pattern in Assam is vastly different. A total
of 30 percent of its land is classified as Revenue Class Land consisting
of (a) industrial lands, (b) business class lands, (c) homestead lands, and
(d) agricultural lands; another 30 percent of land is Revenue Class (Rev-
enue Department, non-private, and unclassified government lands);
and the remaining 40 percent of the state’s area consists of forests and
community-owned lands (NIRD 2008).
8 Sikkim: A large portion of land in Sikkim is owned by the locals, and
the state has prevented transfer to outsiders. The land share of the Lep-
cha and Bhutia tribe is 20 percent each, and their land revenue contri-
bution is 16 percent and 19 percent, respectively. Some members of this
community still hold more than 100 acres of land (HDR 2005).

However, these broad patterns are not static in nature. With time, the con-
cept of community ownership has given way to individual ownership in a
number of tribal communities (Bezbaruah 2007). The inbuilt concept of
cash compensation, in the process of acquisition, is one of the prime reasons
to influence this transition. In these situations, it may appear that any nego-
tiation for acquisition would be easy. It depends on the purpose for which it
is intended to be acquired. However, in theory, in the absence of a cadastral
survey in the majority of the far-flung areas, land rights are (at least infor-
mally) still entirely community owned. Also, the presence of community in
the negotiation process continues. It exists at least at two levels – first, at the
level of debating the purpose and second, at the level of stakeholders who
need to be compensated. This becomes evident in the case of acquisition for
large infrastructure projects such as hydropower projects. Also, land in the
Northeast includes forests at most of the locations. Therefore, the purpose
and negotiation exercises need to be appreciated in the background of for-
est and ecology which are intertwined with the lives of the inhabitants. The
following section discusses these.

The forest question in the NER – a case for hybrid

neoliberalism?
Few landscapes in India have attracted as much attention in terms of social
conflict or ecological enquiry as forests (Rangarajan and Sivaramakrishnan
2012). While speaking of land issues in the Northeast, one cannot alienate
oneself from the forest issues of the region. Several recent but disjointed
studies are available on the critical role of forest ecosystems as building
blocks into people’s lives, culture, and society (Fernandes and Barbora
2008; Saikia 2011; Sharma 2011; Rangarajan and Sivaramakrishnan 2012,
134  Sonali Ghosh and Chandra Bhushan Kumar
2014). The challenges in forest land acquisition are discussed in the follow-
ing three sub-sections.

Inadequate survey, records, and demarcation

Forest conflict in the NER dates back to inter-tribal disputes that have
occurred periodically at least as per the recorded history of colonial India
for the past 300 years. Tribal resistance to British colonial incursions in the
early nineteenth century resulted in special policies enacted to allow cus-
tomary systems of forest management and respect for traditional systems
of governance. This policy reflected recognition by the British colonial gov-
ernment that the hill communities could not be centrally administered and
were best allowed to function under their own governance systems. Post-
independence, the Indian Constitution also recognised the rights of indig-
enous communities and has given special rights under the Sixth Schedule of
the Constitution.
While the NER boasts of an average forest cover of 70.03 percent
(ISFR 2013) of its total geographical area as per the satellite imagery−
based assessment of 2013, there is a net loss of 627 square kilometres in
total forest cover, compared with the previous assessment done in 2011.
While this loss could be primarily attributed to shifting cultivation, com-
mercialisation, and rapid urbanisation, and acquisition of land for major
hydropower and non-forestry purposes, it would be worthwhile to analyse
the changes that occurred within community-owned forest areas and how
existing constitutional safeguards (such as Schedule Six areas) empow-
ering traditional societies to prevent further destruction or degradation
of such forests. Other financial incentives to change land use (including
corruption and cronyism), political isolation, ruggedness of terrain, and
armed conflict have also been a few factors that are likely to impact both
government- and community-owned lands. In the case of government-
owned forests, the category of Unclassed State Forests (USF; unsurveyed
or incompletely surveyed forest areas wherein the rights and concessions
allowed to local communities have not been settled) has been a major
bone of contention, and several of these areas are now highly encroached
or degraded. These USFs become a free-for-all where elite capture from
within the local community or by middlemen driven by market forces may
occur. The acquired land therefore can neither be put to any legal use
(based on local/regional planning missions), nor is it allowed to regrow
into its original forest for fear of losing it altogether to the State. Lack of
formal government recognition to other types of governance (as in the case
of community-owned forests, sacred groves, etc.) and the insistence of for-
est departments to retain community-managed forests under the category
of USF amplifies social tensions with regard to land use and acquisition
(NIRD 2008).
 Customary rights and traditional wisdom 135
Changes in land tenure
There has been marked change in land tenurial systems across Northeast
India. For example, the plethora of different systems in force in Meghalaya
has led to a complex form of forest management in the state. Although there
was little visible change until the 1970s, socio-cultural attitudes have also
gradually transformed, and less value is now attached to forests and sacred
groves. It is a well-documented fact that the move from traditional com-
munity (collective) systems to the State, a faceless entity with an inflexible
set of terms of engagement, is unlikely to strengthen communities and may
create problems in the future.
Another major issue with land tenure has to do with jhum, or shifting
cultivation, a form of organic agriculture that is practised by tribal societies
in the NER. Earlier termed as primitive and a bane for the region’s natural
resources by the colonial government (as it involved cyclical clearing and
burning of large tracts of forest and bamboo areas), sustained scientific evi-
dence suggests that a more than ten-year jhum fallow period of rest after the
crop has been harvested, so as to allow natural vegetation such as bamboo
to re-grow and the soil to regenerate) is economically and ecologically more
sustainable than converting the land for any other form of settled cultiva-
tion (Ramakrishnan and Patnaik 1992; Shankar Raman 2001).
Some social scientists confirm that jhum has a certain enduring quality
which may be interpreted as resistance to change within local communities
(Singh 2009). For example, the cultural formation of Mizo community iden-
tity is strongly intertwined with jhum cultivation. Traditional management
of the forest included various forms of regulation, such as limited access,
size restrictions, and sacred or protected areas. Such management was based
on a strong attachment to land, customary laws, norms, belief systems, and
ethical values regarding the environment (Thrupp et al. 1997). The chief-
tainship institution was also designed to establish a management system
and to formulate customary laws regarding the forest (Vanlalhruaia 2012).
It is therefore proven, that in contrast to several other areas, the reason
for jhum’s persistence is not only to be found in deeply rooted social and
cultural tradition, but also rather, in the resilience of the production sys-
tem itself. This method of agriculture performs the essential function of
feeding the rural family, whose occupational options are severely restricted.
Although time-consuming, strenuous, and subject to uncertainty, it has the
advantage of being self-contained. The shifting cultivator in a remote village
needs neither road, nor market, nor government facility to get on with his
work (Singh 1996). While jhum also leads to open and degraded forests,
especially where the fallow period has been reduced to fewer than three
years because of increased population pressure and scarcity of land, govern-
ment land-use policies and horticulture schemes aimed at eradicating jhum
are likely to cause more harm than benefit in the long run. For example,
136  Sonali Ghosh and Chandra Bhushan Kumar
the primary aim of Mizoram’s New Land Use Policy (NLUP), 2011, is to
develop and give all farmers in the state suitable, permanent, and stable
trades.15 The aims and objectives of NLUP are as follows:

1 To put an end to wasteful Shifting Cultivation.

2 To ensure that all the farmers had land of their own so that they can
each pursue a permanent means of livelihood under the Agriculture
(and allied sectors), Industry, or Animal Husbandry sectors.
3 To develop all suitable land for Wet Rice Cultivation to attain self-
sufficiency in rice and vegetables.
4 To re-afforest the land, save those allocated to the NLUP beneficiaries,
so as to regenerate the ecosystem. This will help stabilise the climatic
changes wrought by global warming, rejuvenate the flora and fauna,
and make Mizoram a better place to live in.
5 To set up a marketing infrastructure so that successful farmers and benefi-
ciaries under NLUP can have a viable commercial outlet for their products.

It is too early to comment on the benefits from the NLUP; however, there is
a need to revisit the policy directive on ending wasteful shifting cultivation
and the practices being promoted therein, as creating permanent infrastruc-
ture and settled agriculture is likely to be counterproductive in this ecologi-
cally fragile and seismologically sensitive area.
Similarly, government land-use policies and horticulture schemes aimed
at eradicating jhum have led to an increase in monoculture plantations such
as teak and oil palm in the forested landscape of Mizoram.16 The Mizo-
ram government has been aggressively promoting oil palm cultivation since
2005 under its NLUP; environmentalists are concerned that this might be a
mistake on three counts: excessive water usage, lowered food production,
and loss of wildlife diversity. Expansion of oil palm plantations is likely to
wean individual farmers away from their traditional practice of subsistence
farming, to more economically stable commercial agricultural and liveli-
hood practices. Studies indicate that oil palm plantations are substantially
worse from a conservation perspective than the jhum landscape as they may
actually lead to a greater loss of forest cover because once converted into
cultivated land, the forest will never have a chance to grow there again
(McCarthy and Cramb 2009; Shankar Raman 2014; Srinivasan 2014).
There are also socio-cultural implications as the conversion of community
land to individual holdings is likely to result in elite capture, unequal shar-
ing, and the destruction of the otherwise unique social bonding. The perma-
nence of this shift in the land tenure system will also drastically undermine
ecologically conservative traditional land-use practices.

Law and governance

The case of economic underdevelopment of the NER is the result of many fac-
tors. The ever-increasing human population is dependent on finite resources
 Customary rights and traditional wisdom 137
and, as a result, per capita uses of all resources are decreasing gradually. Par-
ticularly in the case of land resources, where there is a scarcity of arable land
in the region (Nandy 2014) following independence in 1947, the Indian Con-
stitution provided a certain degree of autonomy at either the local or regional
levels, including the management of natural resources. In reality, successive
regulations through centralised administrative mechanisms were introduced.
For example, the Chieftainship office in Mizoram was abolished in 1954, and
two new administrative categories, Autonomous District Councils and Village
Councils, emerged. All land became the property of the government; commu-
nal land in its true sense was therefore effectively eliminated.
Enactment of the Scheduled Tribes and Other Traditional Forest Dwell-
ers (Recognition of Forest Rights) Act, 2006, was considered to provide a
legal framework to recognise the rights of tribal communities. However, the
Northeast states, except Assam and Tripura, have approached it cautiously.
Arunachal Pradesh and Sikkim considers its applicability non-relevant, cit-
ing settled territorial claims among the tribes (Shrimali 2013).
Another significant legal instrument has been the Wildlife (Protection)
Act, 1972, which intended to provide for the protection of wild animals,
birds, and plants. For centuries, tribal communities have formed a symbiotic
relationship with their surroundings, primarily forest, hills, and rivers. With
the advent of the modern state, armed with codified legal instruments, the
existing relationship faced new challenges. However, with the emergence of
a new polity, which possessed tribal sensibilities, there has been evolvement
of a different kind of arrangement within this legal framework.

Pathway: hybrid neoliberalism in the context of the

Wildlife (Protection) Act, 1972
Neoliberalism and conservation both seem contradictory to each other in theory
(Igoe and Brockington 2016). Neoliberalism thrives on free market with econom-
ics as the central topic, whereas conservation thrives on the sustainable harnessing
of resources. But, in the real world, both ideas interact frequently as policy mak-
ers struggle to find a balance between prosperity and sustainability. They argue
that understanding neoliberalism as a process of restructuring the arrangement
to maximise the outcome for all stakeholders may be more appropriate. Using
the examples from Tanzania, they observed that instead of focusing on deregula-
tion of neoliberalism, one may need to focus on reregulation to tap the untapped
potential. A ‘hybrid’ idea needs to be worked out, and some states in Northeast
India have done so; this is especially visible in matters of resource management.
Some states have faced challenges too. Realising the challenges of top-down
approaches in the implementation of statutory provisions of conservation, the
state engaged with the local community to decide a possible future for the areas
to be protected. This resulted in a ‘hybrid’ framework in which both strands −
neoliberalism and tradition − find space. Acceptability of this framework
allowed the gradual assimilation of conservation laws in community practices
of conservation.
138  Sonali Ghosh and Chandra Bhushan Kumar
In the context of ‘hybrid’ governance, which includes communities in its
ambit, conservation-business partnerships are becoming increasingly com-
mon, if not the norm. This can be seen in increased corporate sponsorship
of conservation organisations; increased management of protected areas by
private for-profit companies (Levine, this issue); and increased emphasis on
ecotourism as a means of achieving economic growth, community prosper-
ity, and biodiversity conservation.
Section 35(1) of the Wildlife (Protection) Act, 1972, specifies that:

Whenever it appears to the State Government that an area, whether

within a sanctuary or not, is, by reason of its ecological, faunal, floral,
Geo-morphological, or zoological association or importance, needed to
be constituted as a National Park for the purpose of protection & prop-
agating or developing wildlife therein or its environment, it may, by
notification, declare its intention to constitute such area as a National
Park . . . all rights in respect of lands proposed to be included in the
National Park have become vested in the State Government.

It was not easy for the nascent state to put these provisions into use literally
on the ground in Northeast India. It needed to work keeping the traditional
practices and culture in view. In one such case, it gradually evolved as a
hybrid arrangement, which we prefer calling ‘hybrid neoliberalism’.

Celebrating best practices: from coercive conservation

to hybrid neoliberalism
The global conservation debate has been for a greater length of time based
on the premise that people residing within Protected Areas are a ‘problem’.
Proponents of state-led conservation have feared that the poverty of people
located near National Parks causes them to over-exploit natural resources
for subsistence and commercial purposes, threatening the ecological via-
bility of Protected Areas (Dressler and Roth 2011). Strict regulations over
resource use and/or removing them altogether from Protected Areas to cre-
ate ‘wilderness’ is still considered the most efficient and effective way to
preserve nature. Such conservation practice has involved establishing pro-
tected areas as per state-led legislations, putting constraints on people’s
activities, and enforcing a particular vision of nature on rural communities
(Agrawal and Redford 2009). In this regard, a unique case in Northeast
India, wherein local community came forward for conservation, is a matter
of further analysis under the neoliberal lens.

Community-led initiative to create Balpakram

National Park, Meghalaya
Located in the South Garo Hills District of Meghalaya State in North-
east India, Balpakram National Park is uniquely important for its rich
 Customary rights and traditional wisdom 139
biodiversity values that have been preserved by the local communities for
centuries altogether. The word ‘Balpakram’ means the ‘land of perpetual
winds’, and the region is blessed with a distinctive topographical feature of
deep gorges, lush green tropical forests, and flat table-top mountains (Wil-
liams and Johnsingh 1996).
For the local Garo communities, especially the animist Songsareks, the
gorge is worshipped as the ‘land of the spirits’ since it is believed that
the spirits of the dead live here temporarily before finally embarking on
the journey towards their final abode (de Maaker 2007). Garo traditional
faith centres on land, nature, jhum cultivation, and traditional healing,
and is understood by the term ‘Songsarek’ which encompasses principles,
rituals, celebrations, and deities. The entire Balpakram plateau and gorge
are believed to be the resting place of spirits of the Garo dead, before their
rebirth, and thus sacred to the tribe. Other sites include the Memang Anti
Cha.Ram, or the Marketplace of the Spirits; Goera Rong, Jaleng, or The
Rock Ledge of Goera, God of Thunder and Lightning; Mebit-Mebang, or
the Oracle Rock, whose stone pebbles are ‘read’ to predict harvests; and
the Dikkini Ring, or Dikki’s Canoe, a mound of earth that resembles an
upturned canoe (ibid).
Ecologically, the area forms one of the most important remaining habitats
for Asian elephants (Elephas maximus) in Northeast India (Datta-Roy et al.
2009). The earliest reliable records for elephant numbers in the entire Garo
Hills is 1,850, of which 910 were found in the South Garo Hills, although
this number has decreased to about 800–840 in the last population census
conducted in 2008 (MoEFCC website).17
Given its unique ecological importance, scientific explorations began
and around the late 1970s, wild-species survey reports were published that
highlighted the need to bring the area under the National Protected Area
network (Choudhury 2006). Before 1986, Balpakram National Park was a
land owned by the local Garo community where they practiced jhum (i.e.
slash-and-burn shifting agriculture) and lived in small settlements. What is
seen in Balpakram today is a mixed-forest type with secondary regrowth of
the jhum areas as well as primary stands (UNESCO website).18
Keeping in mind the biodiversity richness and connectivity of the land-
scape for regional biodiversity conservation, it was suggested that the area
be brought under the ‘formal’ Protected Area network by declaring it as a
National Park, the highest Protected Area category as accorded under the
Indian legal system and wildlife laws. Local Forest Department officials
worked with local communities and urged them to set aside some area for
the National Park. Since the land belonged to local communities, politi-
cal support at the highest level and compliance by local state actors (such
as the Forest Department) was an important factor. It is said, that on the
declaration of Meghalaya as a new state in 1972, its first Chief Minister
Captain Williamson Sangma, who himself belonged to the Garo tribe, vis-
ited Ganchi Soram (a series of small hillocks on the Balpakram Plateau – a
traditional cremation site) to give thanks and pay respects to ancestors.19
140  Sonali Ghosh and Chandra Bhushan Kumar
His popularity and goodwill ensured that people were motivated to accept
Sangma’s vision and set aside this area to preserve wildlife. Subsequently,
systematic documentation, surveys, and negotiations led to a ‘voluntary’
sale of community lands and settlements of jhum areas. Several of these
farming lands that were inside the boundary were relocated to locations
on the edges of the current National Park (Karlsson 2011). Finally, on
15 February 1986, Balpakram National Park, with a designated area of
220 square kilometres, was created as per the suitable provisions of the
Wildlife (Protection) Act, 1972. Compensation was paid for every square
metre of land acquired at agreed rates, making it one of the only National
Parks in India to be created in such a manner. Thirty-three years later,
debate continues on whether the money went to the rightful owners, to
instances of alleged corruption (ibid.), but scientific evidence (as obtained
through wildlife surveys) establish that since then, Balpakram has grown
from strength to strength as one of the last remaining wilderness areas for
large mammals such as elephants and hoolock gibbons, as well as lesser-
known taxa hitherto unrecorded from India (Kakati and Srikant 2014) in
an otherwise highly modified human-influenced landscape. In other areas
of the Garo Hills landscape, elephants are greatly impacted because of the
non-availability of adequate food resources in sub-optimal habitats and
the presence of human-induced developmental structures such as roads,
modern settlements; the National Park provides them much-required ref-
uge as they continue with their long migration patterns in the transbound-
ary forested landscape (Aziz et al. 2016).
At the same time, the National Park has indirectly helped preserve the
material evidence of animistic beliefs (the grassland plateaus, totem animals
among others) of the Songsarek culture where nature is worshipped through
intangible spiritual beliefs. Conversion to Christianity since the late 1800s
has resulted in 95 percent of the Garos in Meghalaya now identifying as
Christian, with the Songsareks being in a minority of 2 percent of Garos
or about 17,000 in absolute numbers (de Maaker 2007). The decline has
also been marked from 16 percent of Garos in 2001 to 2 percent remain-
ing in 2011 (ibid.). Some attempts have been made at reviving and safe­
guarding the Songsarek religion in view of its imminent extinction, and with
it many associated cultural beliefs and practices of music, dance, dialects,
and ethno-medicine.

Discussion and conclusion

This chapter situates neoliberalism as a prism to appreciate the change in
the method of governance and to understand the transformation of rela-
tionship with resources, particularly land in the setting of the NER in India.
Globally, neoliberalism gained momentum as a political response to existing
economic crisis. In India, after the hesitancy of the initial decades, the 1980s
saw the recognition of this new possibility, and the 1990s announced its
 Customary rights and traditional wisdom 141
arrival in the economy. The neoliberal question in this era has been studied
in much detail (Wolford 2007; Kapoor 2009; Desai 2012). In the context
of Northeast India, its presence and influence have been different. We argue
that this bridging of State-led conservation ideals versus community-based
conservation indeed provides a unique model for hybrid neoliberalism.
Since forested land is the most abundance resource in the region, the
close-knit tribes and sub-tribes inherited its use within a power structure,
which evolved traditionally. Emergence of the State as a super body of
politics helped in influencing, and to some extent, altering the traditional
power relationship. In the case of jhum, it positioned itself as a repository
of knowledge and overpowered the age-old practice. Science, as discussed
earlier, came to its rescue and forced the State to restore traditional wisdom.
In a secular state, neoliberalism, which values the freedom of the indi-
vidual and decries the traditional hold on aspirations, has little space for
sacredness. As discussed in the chapter, this new order expects that com-
munities must forge a new relationship with their surroundings. However,
this requires skilful negotiation respecting local sentiments. Four specific
elements help in this negotiation as shown in Figure 6.1:

1 Compensation element: How does one compensate the land owned

by community? This perennial question poses conflicting situations
in the NER. The cases indicate a rupture in the meaning of owner-
ship of a natural resource like land. As acquisition laws are structured
on the premise of individual ownership, communities devise ways to
seek compensation. The concept of fairness becomes irrelevant as the
valuation of ecosystem services does not find any space in the present
discourse.

Negotiation
(capacity debate)

Compensation
Purpose LAND
(adequacy debate)
(development ACQUISITION
debate)

Future
(sustainability debate)

Figure 6.1  Elements of the land acquisition debate in neoliberal Northeast India
Source: Prepared by the authors
142  Sonali Ghosh and Chandra Bhushan Kumar
2 Negotiation element: Negotiation for sharing natural resources is a
complex matter. Communities living with nature may lack the capacity
to value its worth, to appreciate the trade-offs. The modern state and its
apparatus are still grappling with the concept of valuation of ecosystem
services. Before coming to the negotiation table, it is imperative to have
adequate capacity on both sides to create a win-win situation.
3 Purpose element: In the matter of land acquisition, the purpose debate
occupies the central position in all settings. Focussed on the end prod-
uct, this debate creates a dilemma to select between ‘development’ and
‘environment’. The middle path seems missing or compromised. As the
capacity to engage in negotiation is limited, ‘local’ and ‘state’ have little
scope to reconcile in the ‘purpose’ debate.
4 Sustainability element: Does the existing approach of land acquisition
address the concerns of sustainability in this resource-abundance terri-
tory? As per the current method, the forest (and environment) question
remains restricted to afforestation. The bio-culture narrative of engage-
ment has a limited presence.

The complexities of the NER demand patient attention when engaging

in debate to appreciate its past, comprehend its present, and visualise its
future. The development discourse of this region has to be premised on its
one rich resource: ‘land’. However, its meaning is not uniform. Multiple
meanings of land – a variety of connotations layered with customs, prac-
tices, and inheritance shaped by stifling nature – have been the hallmark of
this region. Ignorance of these multiple meanings complicates the process of
acquisition. These meanings are not static. And thus, they also offer oppor-
tunities to create possibilities of engagement.
In these engagements, at most of the locations in the region, the bio-
cultural narrative has to be prominent for two simple reasons: first, sus-
tainability purposes (harmonisation with ‘local’), and second, acceptability
purposes (possibility of effective negotiation). It is possible to accomplish
this, but not quickly. It requires considerable effort to invest in enhancing
the capacity of the community as well as the State to engage in four ele-
ments: purpose, ownership, sustainability, and capacity.
The NER provides a unique setting to appreciate the complexities of
natural resource conservation. Most striking is how neoliberalism and
conservation have merged in policy and practice through devolved initia-
tives, otherwise known as ‘hybrid neoliberalism’. New hybrid forms of
community-based conservation are built on this discourse by expecting
the benefits of markets to ‘trickle down’ to rural communities (Dressler
and Roth 2011). Its developmental status demands the intervention of the
modern state to create new physical infrastructures to address the neces-
sary gaps. Its resource richness fuels the desire to harness its resources
beyond the local and hence the bigger-sized projects. There has been exten-
sive focus on the purpose of these. There is little debate on the process of
 Customary rights and traditional wisdom 143
this transition. Its near absence in the onslaught of modernity in Northeast
India misses an important aspect of current narrative in land acquisition –
the bio-cultural narrative.

Notes
1 Both the authors are civil servants who have lived and worked in northeast India
and feel deeply connected to the region. Views expressed in this chapter are
entirely personal.
2 ‘Mainland’ (sic) is popular terminology to distinguish it from the rest of India.
3 www.mdoner.gov.in/content/report-studies-ner lists 24 reports and studies on
the Northeast region between 1997 and 2012
4 The Schedule Areas are part of schedule V and VI of the Constitution of India.
5 A prolific writer, Elwin chiefly guided the governance in the current state of
Arunachal Pradesh in the 1950s; at that time it was called North East Fron-
tier Administration (NEFA). Ramchandra Guha’s book Civilizing the Savaged
(1999) documents the life and writings of Elwin.
6 Prime Minister Jawahar Lal Nehru, writing the foreword in the book, enunci-
ated five principles, namely, (1) people should develop along the lines of their
own genius, and we should avoid imposing anything on them. We should try to
encourage in every way their own traditional arts and culture; (2) tribal rights
in land and forests should be protected; (3) we should try to train and build up
a team of their own people to do the work of administration and development.
Some technical personnel from outside, will no doubt, be needed, especially in
the beginning. But we should avoid introducing too many outsiders into tribal
territory; (4) we should not over-administer these areas or overwhelm them with
a multiplicity of schemes. We should rather work through, and not in rivalry to,
their own social and cultural institutions; and (5) we should judge results, not by
statistics or the amount of money spent, but by the quality of human character
that is evolved.
7 The Planning Commission of India was renamed NITI Aayog in 2014. The role
and responsibilities of the Commission are redefined along with the name.
8 http://planningcommission.nic.in/reports/genrep/ne_exe.pdf (Accessed on 20
December 2018)
9 Nagaland became a state in 1962; Meghalaya, Manipur, and Tripura in 1972;
and Arunachal Pradesh and Mizoram in 1987. Sikkim became a state after its
incorporation in Indian union in 1975. Assam, being a seat of administration in
British India, did not face transitional challenges.
10 Among the Northeastern states, Mizoram is the most urbanized, with a 51.5 per-
cent urban population. Similarly, Sikkim, which was just 11.0 percent urbanised
a decade ago, became almost 25 percent urbanised in 2011. Arunachal Pradesh
witnessed proliferation of urban centres in the 1990s (Census 2001).
11 Council of Ministers of the village chief in Manipur
12 Privileged villagers in Mizoram who had the first choice of the jhum site, thereby
paying more paddy dues to the chief
13 A kind of institution that assisted the village chief in allocation of jhum land in
Tripura
14 The customary head of the Khasi tribal institution of an administrative area of
the United Khasi Jaintia Hills District in Meghalaya
15 Available at http://nlup.mizoram.gov.in/
16 Visit http://news.mongabay.com/2014/10/india-plans-huge-palm-oil-expansion-
puts-forests-at-risk/
17 See: http://envfor.nic.in/division/introduction-4 (Accessed on 20 December 2018).
144  Sonali Ghosh and Chandra Bhushan Kumar
18 See: https://whc.unesco.org/en/tentativelists/6356/ (Accessed on 20 December
2018)
19 Based on a conversation with retired forest officer J. Dutta and Dr Kashmira
Kakati, a biologist, who took up a three-year project in Balpakram National
Park to study wild carnivores in the region

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Part 2

Evolving jurisprudence
on the land question
7 Land acquisition law in
neoliberal India Rita SinhaLand acquisition law in neoliberal India

Old wine in a new bottle?

Rita Sinha

Neoliberalism is an economic system with an ideology, a mode of govern-

ance, and a policy package that emphasises deregulation of the economy,
liberalisation of trade and industry, and privatisation of State-owned enter-
prises. In India, neoliberal reforms were launched in the 1990s (Steger and
Roy 2010: 11, 14, 91).
The Achilles heel of neoliberal reforms in India proved to be its neglected,
creaking land governance system, especially land acquisition. By 2006,
countrywide protests against the colonial Land Acquisition Act, 1894 (LAA)
brought land acquisition virtually to a grinding halt, forcing the govern-
ment to rethink the entire acquisition regimen which resulted in the recently
enacted law, the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARRA).
State intervention in what should ideally be a purely private transaction
between two private parties has given rise to several quandaries and debates
in the country. This chapter discusses two issues that have risen to promi-
nence in the neoliberal era: (1) was there justification for the continuity of
the colonial land acquisition law well into the neoliberal era, and (2) is the
RFCTLARRA in tune with India’s neoliberal policies or is it a step back-
wards towards putting restraints on government from making land avail-
able to private enterprises?

Was there justification for the continuity of the colonial land

acquisition law well into the neoliberal era?
First, the historical continuity in the land acquisition law from colonial
times needs to be established.

Colonial legislative power

By 1807, all three Presidencies – Calcutta, Bombay, and Madras– under the
East India Company (EIC) were empowered to function as local legislatures
and were self-sufficient in the matter of making laws, for the mofussil and
for the Presidency Town, the latter being subject to the veto of the concerned
Supreme Court (Jain 2014: 452, 487).
152  Rita Sinha
The Charter Act, 1833, ended the system of enactment of Regulations by
the Presidency Governments and instead brought in the Legislative Council.
However, the EIC retained veto power through its Court of Directors. While
all laws made by the various governments before 1833 were called Regula-
tions, the enactments of the Legislative Council were termed Acts of the
Government of India and had the same force and effect as an Act of Parlia-
ment and were binding on all Indian courts. The veto power of the Supreme
Court was removed (ibid: 488). After the 1857 rebellion, The Government
of India Act, 1858, deprived the EIC of the Indian government. The Secre-
tary of State for India supplanted the President of the Board of Control, and
a Council of India was set up. The Governor General was added on the hon-
orific of Viceroy as the personal representative of the Crown (Smith 1958:
673, 676, 683). The Indian Councils Act, 1861, separated the legislative
and executive functions of the Governor General’s Council. However, all
legislation required the assent of the Governor General before being enacted
as law, and certain matters required his prior sanction (De 2016: 24).

Controversy regarding the status of private property

There was uncertainty regarding the legal status of immovable property
in the territorial acquisitions of the EIC. Around 1784, Warren Hastings
claimed that absolute powers of property rights to land should be vested in
the Company-State as the successor to the Mughal Empire on the grounds
that property rights existed even under Mughal despotism. One view is that
a consensus emerged in the Parliament that all lands in Bengal should be
considered the estate and inheritance of native landholders and families.
(Smith 1958: 522) argues that Pitt1 chose to leave the issue of sovereignty
over the EIC’s possessions in India an open question. The amending Act of
1793 gave statutory recognition to the personal laws of Indians regarding
inheritance and succession to lands (De 2016: 22). If the EIC had acquired
property rights in lands under its possession, the course of land appropria-
tion in India would, perhaps, have taken a different course.

Evolution of land acquisition law

Having rented land for establishing the Madras Presidency Town and bought
land for establishing the Calcutta Presidency, the EIC now opted for land
acquisition as a mode of obtaining land to create infrastructure required for
its commercial expansion. Since most of the infrastructure needed was lin-
ear, such as roads, railways, canals, and tramways, which entailed obtaining
small pieces of land in perpetuity over long distances from numerous land-
owners, many of whom may have had unclear titles to the land; acquisition
seems to have been the preferred mode to purchase and renting.
The first land acquisition law enacted in the country by the EIC was Reg-
ulation I of 1824 (Ray and Patra 2009: 41). It applied throughout the whole
 Land acquisition law in neoliberal India 153
of the provinces immediately subject to the Presidency of Fort William. It
provided rules for enabling the officers of government to obtain, at a fair
valuation, land or other immovable property required for roads, canals, or
other public purposes (Law Commission of India 1958: 1). Land acquisition
by the State for a public purpose was retained as section 4(1) of the LAA
and forms section 2(1) of the RFCTLARRA.
In Bombay Province, the Building Act XXVIII of 1839 provided the
machinery for acquisition of land for widening or altering any existing pub-
lic road, street, or other thoroughfare or drain or for making such new ones
within the islands of Bombay and Colaba. This Act was extended by the Act
XVII of 1850 to taking lands for railways within the Presidency (Law Com-
mission of India 1958: 2). The Act also provided that compensation should
be determined by a jury of 12 (Sarkar 2012: 1).
In the middle of the nineteenth century, the railway network was being
developed, and legislation was needed for acquiring lands for it. The Act
XLII of 1850 declared railways to be public works which enabled the provi-
sions of Regulation I of 1824 to be used for acquiring lands for the construc-
tion of railways. The Act I of 1850 also extended some of the provisions of
Regulation I of 1824 to Calcutta town, with the object of confirming the
title to lands in Calcutta taken for public purposes (Law Commission of
India 1958: 1).
The Madras Presidency Act XX of 1852 enabled the EIC to acquire land
in the Presidency of Fort St. George for public works in general. As per the
Act, compensation was to be settled by the Collector or if the parties dis-
puted it, by arbitration. Simultaneously, the Bengal Act XLII of 1850 was
extended to the Madras Presidency. Both these Acts were extended by Act
I of 1854 for acquisition of land in Madras Town (Sarkar 2012: 1). Set-
tlement of the compensation by the Collector was included in the LAA as
section 11 and forms section 27 of the RFCTLARRA.
After the 1857 rebellion, the British Crown took over the EIC’s Indian
possessions. All previous enactments were repealed by Act VI of 1857,
which enacted one general law for the acquisition of land for public pur-
poses in all the territories under the EIC. Under this Act, the Collector was
empowered to fix the amount of compensation by agreement, if possible;
but if there was no such agreement, the dispute had to be referred to arbitra-
tors whose decision was final and who could not be impeached, except on
the grounds of corruption or misconduct (Law Commission of India 1958:
2–3). The Act VI of 1857 was further amended by Act II of 1861, dealing
mainly with temporary occupation of land (Sarkar 2012: 1). The provisions
for temporary occupation of land were retained as section 35 in the LAA
and from section 81 of the RFCTLARRA.
Then came Act XXII of 1863, which was significant because it empow-
ered the government to acquire land for private companies but only for
works of public utility, which were defined under the Act as any bridge,
road, railroad, tram road, canal for irrigation or navigation, work for the
154  Rita Sinha
improvement of a river or harbour, dock, quay, jetty, drainage work or elec-
tric telegraph, and all works subsidiary to any such work (R.L. Aurora vs.
State of U.P. [Uttar Pradesh], dated 1.12.1961, equivalent citations: 1962
AIR 764, 1962 SCR Supl.(2)149). Acquisition of land for private compa-
nies for works of public utility, now public purpose, was retained as sec-
tion 40 (1)(a) in the LAA and has been incorporated as section 2 (2)(b) of
the RFCTLARRA.
The method of settlement of compensation by arbitrators proved to be
unsatisfactory, as they were incompetent and, sometimes, even corrupt, and
there was no provision for appeal against their award (Law Commission of
India 1958: 2–3). The Act X of 1870 repealed earlier acts; land acquisition for
public purpose and for companies were consolidated under this Act. Acquisi-
tion for companies, brought in as Chapter VII, was introduced into the Act
for the first time (R.L. Aurora vs. State of U.P., dated 1.12.1961). The LAA
retained Parts II and VII for land acquisition for public purpose and land
acquisition for companies, respectively. The RFCTLARRA has done away
with two separate Parts and brought both kinds of acquisition under section 2.
The Act of 1870 also provided for reference to a civil court for the deter-
mination of compensation if the Collector could not settle it by agreement. It
laid down a detailed procedure for the acquisition of land and also provided
definite rules for the determination of compensation (Law Commission of
India 1958: 2–3). The reference to the civil court for the determination of
compensation was retained as section 18 of the LAA. The RFCTLARRA
has substituted the Land Acquisition, Rehabilitation and Resettlement
Authority (LARRA) for the civil court and reference to it is made vide sec-
tion 64. Sections 23 and 24 of the LAA included the rules for determination
of compensation in the form of ‘Matters to be considered on determining
compensation’ and ‘Matters to be neglected in determining compensation’,
respectively. The RFCTLARRA has retained only ‘Parameters to be con-
sidered by Collector in determination of award’ as section 28 and omitted
those which are to be neglected.
The Land Acquisition Act, 1894, replaced the 1870 Act. This Act was
slowly fine-tuned by amendments in 1914, 1919, 1920, 1921, 1923, 1933,
and 1938 (Law Commission of India 1958: 3). The 1923 amendment was
significant because it introduced the provision of providing an opportunity
to persons interested in the lands proposed to be acquired to state their objec-
tions to the acquisition and to be heard by the authority concerned in sup-
port of their objections (op. cit.). This provision was retained as section 5A
of the LAA and has been included as section 15 of the RFCTLARRA.
By the amendment effected in 1933, besides works of utility, particularly
railways, acquisition was also permitted for the erection of dwelling houses
for workmen employed by the Company or for the provision of amenities
directly connected therewith (Standing Committee on Rural Development
(2011–2012): Para 3.3). This provision was retained as section 40(1)(a) in
the LAA but has been omitted in the RFCTLARRA.
 Land acquisition law in neoliberal India 155
The Government of India Act, 1935, provided, in section 299, that no
person shall be deprived of his property in British India save by authority
of law. This clause embodied the fundamental principle of the common law
that the Executive may not extinguish property rights without the author-
ity of the Legislature. The Act also provided that no land acquisition law,
either federal or provincial, could be enacted without making provision for
payment of compensation; and any bill seeking to provide for land acquisi-
tion or extinguishment or modification of rights and privileges in land or
in land revenue could be introduced only with the previous sanction of the
Governor General in his discretion or in the case of provincial legislation,
with the previous sanction of the Governor in his discretion. This provision
safeguarded vested interests, notably those of zamindars, taluqdars, inam-
dars, and jagirdars2 (Wahi 2016: 945).

Post-independence: colonial continuities in land acquisition laws

The end of colonial rule in 1947, and the Republican Constitution of 1950,
did not bring about any significant change in the land acquisition law. The
Constitution of India, by Article 372, allowed all colonial laws to remain in
force unless they were explicitly repealed (Ray and Patra 2009: 41). Vide the
Indian Independence (Adaptation of Central Acts and Ordinances) Order,
1948, The Land Acquisition Act, 1894, was amended and made applicable
to the Provinces of India instead of to ‘the whole of British India’. Under
the Adaptation Order of 1950, after the adoption of the Constitution, the
Act became applicable to ‘the whole of India except Part B States’. Under
the Adaptation of Laws No. 2 Order, 1956, which was promulgated after
the States Re-organization Act, 1956, the Act became applicable to ‘all the
territories which immediately before 1st November, 1956 were comprised in
Part B States’ (Law Commission of India 1958: 3–4).
The Land Acquisition Act, 1894, was amended in 1962, 1967, and 1984
(Standing Committee on Rural Development 2008–2009: 1). The 1962
amendment was necessitated by a judgment passed by the Apex Court in
the case R.L. Aurora vs. State of U.P., dated 1.12.1961, where in a strongly
worded judgment the Court, opposing land acquisition for companies as a
public purpose, ruled that it could not have been the intention of the Legis-
lature to make the government a general agent to acquire lands for compa-
nies in order that their owners are able to carry on their activities for private
profit (R.L. Aurora vs. State of U.P.). This judgment restricted the govern-
ment’s power to acquire land for companies as public purpose. Hence, the
government amended the law retrospectively through the Land Acquisition
(Amendment) Act, 1962 (Ray and Patra 2009: 42). There was also a fear
that past cases would be reopened, with landowners demanding restoration
of acquired lands or payment of damages (World Bank, Urban Resettlement–
Legal Report 2007: 10). This amendment was incorporated as sub-section 4A
of section 41 in the LAA and forms section 2 (2)(b) of the RFCTLARRA.
156  Rita Sinha
The 1967 amendment to the LAA
Initially, under the Act of 1894, no time limit was prescribed for making the
declaration under section 6 after the publication of the notification under
section 4(1) of the Act. This led to unreasonable delays which disadvan-
taged the owner because the market value of the land was determined on
the basis of the notification published several years earlier. This was pointed
out by the Supreme Court in State of Madhya Pradesh vs. Vishnu Prasad
Sharma AIR 1966 SC 1593. The Land Acquisition (Amendment and Vali-
dation) Ordinance, 1967, was promulgated which laid down a time frame
of three years for making the declaration from the date of publication of the
notification under section 4(1) (Law Commission of India 2002: 7).
In the same case, the Supreme Court also expressed the view that only
one declaration could be made for a notification under section 4(1) (World
Bank, Urban Resettlement–Legal Report 2007: 10). The Ordinance of 1967
provided that, if necessary, more than one declaration could be made from
time to time in respect of different parcels of land covered by the same
notification under section 4(1) of the Act. The provisions of the Ordinance
were later incorporated into the Amending Act of 1967 (Law Commission
of India 2002: 7–8). This provision was retained as section 6(1) of the LAA
and forms section 19(1) of the RFCTLARRA.

The 1984 Amendment to the LAA

The Amending Act of 1984 introduced payment of 12 percent per annum
interest for the period commencing from the date of the intention and end-
ing with the date of the Collector’s award, and payment of solatium at the
rate of 30 percent of the market value of the acquired land. It also pro-
vided for an opportunity to those who were dissatisfied with the Collec-
tor’s award to apply to him for a re-determination of the compensation
from the Reference Court (World Bank, Urban Resettlement–Legal Report
2007: 10). Payment of 12 percent per annum interest for the period from
the date of the notification till the date of the Collector’s award/possession
was retained as section 23 (1A) in the LAA and forms section 69(2) of the
RFCTLARRA. Payment of solatium at the rate of 30 percent of the market
value of the acquired land was retained as section 23(2) of the LAA. An
enhanced solatium of 100 percent of the compensation amount is included
as section 30(1) in the RFCTLARRA. The provision to apply through the
Collector to a Reference Court for re-determination of the compensation
award was incorporated as section 28A in the LAA and forms section 73(1)
of the RFCTLARRA except that LARRA has replaced the Reference Court.
The 1984 Amendment in the LAA reduced the period for making the dec-
laration under section 6 to within one year from the date of publication of
the notification under section 4(1), instead of the three years introduced by
the Amending Act of 1967, failing which the section 4(1) notification would
 Land acquisition law in neoliberal India 157
lapse. It also inserted an Explanation below section 6(1) to the effect that
if the court had granted a stay order on any action or proceeding taken in
pursuance of section 4(1) notification, the period covered by the stay order
would be excluded while computing the period of one year allowed for the
declaration to be made (Law Commission of India 2002: 9). These provi-
sions were retained in the LAA as Proviso to section 6(1) and Explanation
1 of section 6(1), respectively, and form Third Proviso to section 19(2), and
First Proviso to section 19(7), respectively, of the RFCTLARRA, with pow-
ers to extend the period in the Second Proviso.
The National Policy for Resettlement and Rehabilitation for Displaced
Persons was drafted by the Ministry of Rural Development, Government
of India, in 1998 along with a Land Acquisition (Amendment) Bill, 1998,
which came in for sharp criticism when circulated for public opinion (Pal
2017: 161). It was not tabled in Parliament. The National Policy on Reha-
bilitation and Resettlement, 2003, introduced by the Bhartiya Janta Party
(BJP), was replaced by the National Rehabilitation and Resettlement Policy,
2007, by the Congress-led Central Government; possibly influenced by the
Singur episode of 2006. This Policy, being advisory in nature, was largely
ignored by the states and Union Territories (UT), necessitating legal backing
to it. Hence, the Land Acquisition (Amendment) Bill, 2007, and the Reha-
bilitation and Resettlement Bill, 2007, were introduced in December 2007,
and, after due procedure, were re-introduced in and passed by the Lok
Sabha on 25 February 2009. Because of objections from the BJP and the
CPI (M) (Communist Party of India–Marxist), the bill could not be included
in the Agenda of the Rajya Sabha the next day and, with the lapse of the
Fourteenth Lok Sabha, both the Bills lapsed.
The Land Acquisition, Rehabilitation and Resettlement Bill, 2011, was
presented in the Parliament in September 2011, which after due procedure,
was passed as the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, (RFCTLARRA).
This Act became effective from 1 January 2014, after bringing the curtain
down on the 119-year-old Land Acquisition Act, 1894 (LAA) which stood
repealed.
The NDA government (National Democratic Alliance) attempted to
amend the nascent RFCTLARRA in 2015. The proposed amendments
included removing the consent clause and removing the mandatory social
impact assessment (SIA) in five areas, viz., defence, rural infrastructure,
housing, industrial corridor, and social infrastructure. They also would have
changed the term ‘private company’ to ‘private entity’ and the definition
of public purpose to include private hospitals and educational institutions.
They would have made using or returning acquired land within five years
flexible by replacing that with the duration of the project or within five years,
whichever was later. The proposed amendments would have made com-
pensation and R&R applicable to the 13 acts exempted under the RFCT-
LARRA (Singh 2016: 67–68). Unable to go through with the Amendments
158  Rita Sinha
in Parliament because of lack of a majority in the Rajya Sabha, the NDA left
it open to state governments to make necessary amendments utilising the
provisions of Article 254(2) of the Constitution (Ramesh and Khan 2016).
Five states, namely, Tamil Nadu, Gujarat, Telengana, Haryana, and
Jharkhand, received Presidential assent to amendments to the RFCTLARRA
till June 2018.3

Colonial continuity in land acquisition laws established

From the foregoing account, it is evident that the land acquisition law was
brought into the country by a ‘Company-State’ – the EIC – with the objec-
tive of creating infrastructure that would enhance its trade and profits. By
giving such acquisitions the label of ‘public purpose’, it skewed the defini-
tion of ‘public purpose’ in the context of a private entity.
Acquisition of land by the State for private profit-making companies has
been with India since 1863 in the form of Act XXII of 1863. In Act X of
1870, the first part, which was used for land acquisition by the ‘state’, was
drafted by a company, viz., the EIC. Part VII, which accommodated Act
XXII of 1863, was drafted for acquiring land for private companies. The
1894 Act inherited both these parts, which explains why the tenor of the
colonial land acquisition law, such as speedy acquisition, payment of low
compensation, and lack of concern for the land losers beyond monetary
compensation, echoed the mindset of traders out to make quick profits
rather than that of a welfare state acquiring land for the public good.
It is evident that several provisions in the LAA hark back to colonial
times, and the RFCTLARRA has also retained some of them. The RFCT-
LARRA has also retained a good deal of the procedural arrangement and
schematic layout4 of the LAA and has primarily added on welfare measures
to assuage irate land losers and also some features that promote the neo-
liberal policies of the State. For example, in preliminary investigation, the
RFCTLARRA includes preparation of the SIA Study and R&R Scheme;
Miscellaneous Provisions contain several new insertions for prevention of
un-utilisation and mis-utilisation of acquired land; and, public purpose
includes acquisition of land for private companies and PPP projects, fulfill-
ing the government’s neoliberal agenda.
The RFCTLARRA stands at the political fault line of a changing India,
undergoing significant transitions: political, economic, social, environmen-
tal, and spatial. A deepened democracy attempts to find room for dissenting
voices, including civil society, marginalised castes, Scheduled Tribes, as well
as for powerful regional political parties (Goswami 2016: 4).

Post-independence persistence by the State with a colonial law

Though the LAA was a colonial law, its real abuse took place in the postco-
lonial Nehruvian era when it was used to acquire vast tracts of land to jump
 Land acquisition law in neoliberal India 159
start an ambitious industrialisation agenda. The colonial state never had
such an industrial vision for India; rather, it was antithetical to it (Chakra-
vorty 2016: 50).
By 1991, a financial crisis loomed large over the country with India’s
national debt approaching 50 percent of the GDP (gross domestic product).
Dr Manmohan Singh, by then India’s finance minister, ushered in neoliberal
reforms to rescue India out of the financial crisis. As prime minister in 2004,
he carried the neoliberal reforms further and linked the Indian economy to
globalisation (Steger and Roy 2010: 92–93). The liberalisation of the Indian
economy ushered in a new phase of conflict over land acquisition, since land
was increasingly being acquired for private investors. This became a major
source of agitation for civil society and subaltern movements (Nielson and
Nilsen 2014).
Opposition to this regressive regimen of land acquisition gathered momen-
tum in the country from 2005 onwards. Major trouble spots erupted –
Govindpura in Punjab; Jaitapur and Maval in Maharashtra; Greater Noida
and Noida Extension, Tappal, Aligarh, Bajna, Dadri, and Karchana in Uttar
Pradesh; Kalinganagar, Puri, Narayanpatna, Angul, and Paradeep in Orissa;
and Nandigram and Singur in West Bengal (Editorial, The Times of India
2011). The Singur episode of 2006 became a watershed in the history of
resistance to land acquisition. It politicised the land acquisition issue which
forced governments to mull over the entire acquisition regimen (Pal 2017:
170). According to Chakravorty (2016: 57, 60), in Singur, land acquisition
was used as a ‘wedge issue’ to topple the communist government in West
Bengal which had been continuously in power for 34 years. This success
turned land acquisition into a ‘wedge issue’ in many parts of the country.
As a result, the old acquisition system began to fail. Despite so much oppo-
sition to land acquisition instead of abolishing it, the State enacted a new,
‘reformed’ law in the hope that it would revive the moribund land acquisi-
tion process.

Examining reasons for State persistence with land

acquisition in the neoliberal age
A major land governance issue which compels the State to persist with land
acquisition is lack of clear, ‘conclusive’ titles to property. The country fol-
lows the system of ‘presumptive’ titles based on land revenue records, which
are mostly outdated and unreliable, and on the Deeds system of Registra-
tion of land transfers. Till land revenue was the mainstay of the State econ-
omy, land revenue records were updated and maintained meticulously and
formed a reliable source of information about ‘presumptive’ ownership of
land, so much so that sections 32 and 35 of The Indian Evidence Act, 1872,
attached special importance of evidentiary value to them (Wadhwa 1989:
4). However, by the 1980s, when the land tax ceased to be an important
source of revenue and it became uneconomical to collect it, several states
160  Rita Sinha
abolished it. With the abolition of land revenue, the upkeep of the records
was neglected making them obsolete and unreliable as a source of determin-
ing landownership. Land acquisition, a cruel and inhuman solution, was
used to counter the deeper malady of poorly maintained land records and
weak land rights (Ramesh and Khan 2015: 133).
The State attempted to rectify the upkeep of land records in the coun-
try. The scheme of the National Land Records Modernization Programme
(NLRMP), built upon two earlier schemes – Strengthening of Revenue
Administration & Updation of Land Records (SRA&ULR), and Comput-
erization of Land Records (CLR), which were launched in 1987–88 and
1988–89, respectively – was launched in 2008, and aimed at building up
a real-time, comprehensive, and integrated land record system through use
of modern technology, with the ultimate goal of ushering in the system of
Conclusive Titles (Sinha 2010: 59–60). The NLRMP now forms part of the
‘Digital India’ programme, but progress has been so slow that land revenue
records still remain unreliable in several states. Till 2015, only four state
governments were following the programme guidelines (Ramesh and Khan
2015: 133).
The ‘Deeds’ system, following the principle of caveat emptor, or buyer
beware, part of British common law based on a maxim of Roman law, puts
the entire onus for making a legally valid purchase on the buyer (Belisle
2011). Obviously, it is unsuitable for brisk and large-scale private land
transfers which neoliberalism requires. To rectify the situation, in 2008, the
DoLR took approval of the Cabinet to introduce Conclusive Titling based
on the Torrens system as an alternative to the Deeds system and made a
draft National Titling Act, 2008. After several rounds of discussions with
state governments, stakeholders, and international experts, a draft of the
National Titling Act, 2011, was prepared in 2010 in the hope that the new
system would first be introduced in Union Territories by 2011, since the
states were unresponsive.5 In 2013, the DoLR constituted an Expert Com-
mittee to prepare a Road Map for Titling. In January 2014, this Committee
recommended a new type of titling system more suitable for India, viz., Sys-
tematic Selective Titling (Department of Land Resources 2014: 8). Finding
very little response from state governments and UTs, in 2018, according to
the then Secretary of the DoLR, the Department decided to close the chapter
of attempting to introduce Titling in the country.
Litigation from unrecorded interests in land is a grave risk for private pur-
chasers, whereas when land is acquired, all such disputes stand terminated
and the land vests in the government free from all past encumbrances. This
is one of the most compelling reasons for companies to root for acquisition
of land, especially when fairly large chunks of land are required involving
several landholders.
Rural India typically has a large number of landholders with small hold-
ings. Sarkar (2009: 6) estimated that as many as 261 families can be involved
in a land parcel of just 4.3 hectares. The private sector finds it difficult to
 Land acquisition law in neoliberal India 161
negotiate with small landholders because of the sheer numbers involved, the
lack of legal titles, and the reluctance of farmers to give up land because of a
lack of exit options from agriculture (Singh 2016: 70–71). Land acquisition,
on the other hand, puts the onus of conclusive negotiation on the Collector.
Related to the problem of large numbers of landholders is the ‘hold-out’
problem, where a few landowners whose land is located within the pro-
posed project area or near the main road refuse to sell their lands, thereby
causing fragmentation and discontinuity of the project site or disconnection
with the main transport route. The buyer is left with no option but to seek
help from the State to acquire such lands. In the case of cent percent land
acquisition there is no scope for a ‘hold-out’.
Land acquisition over-rides laws in many states, which prohibit sale
of agricultural lands to non-cultivators. Moreover, there is an automatic
change in land use obviating the need to obtain non-agricultural use clear-
ance from the government which is mandatory before agricultural land can
be diverted to other uses. Mutation in the Record of Rights after Registra-
tion, by which rights in the purchased property actually accrue to the buyer,
is often delayed in private purchases, leaving the buyers at risk to frauds.
‘Suitability’ is a factor in land acquisition; certain types of lands are ‘un-
substitutable’, as for example, lands suited for mineral extraction or for
strategic use (Morris and Pandey 2009: 14). When owners of such lands are
reluctant to sell, the State’s intervention is needed for compulsory acquisi-
tion for ‘development’ purposes. This is a major cause of land acquisition in
tribal areas which are rich in natural resources.
Another attraction of land acquisition under the LAA was the low market
value ascribed to the land by the State, making it a more economical way of
accruing land for both the State and the private sector. It allowed the State
to indulge in a patronage system to lure private industry which is not pos-
sible when the land market functions freely.
It becomes clear that the State had ‘compulsion’ to continue with the
land acquisition regime in the neoliberal era but little ‘justification’, since it
remained lackadaisical towards attempts to reform land governance.

RFCTLARRA: old wine in a new bottle?

The RFCTLARRA is an amalgamation of colonial inheritance, pacifist wel-
fare measures, and tenets of a neoliberal state. The primary ‘pacifist’ pur-
pose of enacting the RFCTLARRA is to reduce social tensions (Singh 2016:
71). It, therefore, seeks to negotiate a compromise equilibrium between sub-
altern groups, vulnerable to marginalisation and capable of mobilisation,
and dominant groups, who stand to gain from the liberalised economy. This
equilibrium is ultimately intended to facilitate India’s process of neoliberali-
sation (Nielsen and Nilsen 2014).
Two factors seem to have played a predominant role in moulding the
pacifist measures in the RFCTLARRA, namely, lessons learnt from land
162  Rita Sinha
conflicts against land acquisition – primarily the agitation in Singur – and
agitations against the government’s SEZ (special economic zone) policy and
removal of the major defects in the LAA. The moot point is whether these
pacifist reformatory measures restrain the State from acquiring land for its
neoliberal agenda.

Lessons learnt from land conflicts: Singur and SEZ policy

The major error in Singur was of acquiring highly fertile multi-crop land
instead of less fertile mono-crop agricultural land (Nielsen and Nilsen 2014).
This has probably brought the ‘special provision to safeguard food security’
into the RFCTLARRA. Acquisition in Singur was done without substan-
tial consultations with local stakeholders (Ibid 2014). The RFCTLARRA
includes the consultative process at several stages of the acquisition – at the
initial stage under section 4 sub-section (1) when the government decides
to acquire land for public purpose; in the preparation of the SIA study; in
the discussion of the draft R&R Scheme; in the preparation of the R&R
Scheme in Scheduled Areas; and for carrying out social audits when the land
acquired is, or exceeds, 100 acres.
In Singur, the outdated land records, on the basis of which compensation
was calculated, did not record the massive conversion of unirrigated sali
land to irrigated, multi-crop suna land which received higher compensation,
resulting in many landowners being grossly under paid (Nielsen and Nilsen
2014). The RFCTLARRA mandates updation of land records between the
issue of the preliminary notification and the publication of the declaration.
According to Jenkins, the triggering factor for bringing in the new Act
was the UPA (United Progressive Alliance) government’s SEZ policy (Jen-
kins 2014: 4). The SEZ regimen brought several evils with it. It initiated
large-scale acquisitions as a multi-product SEZ required as much as 1,000
hectares of land. According to the International Labour Office (2012),
acquisition of land for notified SEZs is likely to displace approximately
1.14 million people, a figure 18 times higher than the number of people
officially likely to get direct employment in these notified zones (Parwez
2016: 138, 139, 142).
The RFCTLARRA has incorporated processes to examine land require-
ments in the SIA study and in section 8 sub-section (1)(c) by the government
before issue of the preliminary notification.
The RFCTLARRA recommends the fixation of limits or ceiling for pri-
vate purchase of land beyond which R&R provisions become automatically
applicable. For acquisitions of 100 acres or more, an R&R Committee is
mandated to monitor and review the progress of the R&R and to carry out
post-implementation social audits in consultation with the relevant local
bodies. The issue of livelihoods is addressed at the time of undertaking the
SIA and when it is evaluated by the independent multi-disciplinary Expert
Group (IMEG), as well as at the time of preparation of the R&R scheme.
 Land acquisition law in neoliberal India 163
Of the total land notified for the SEZ, only 42.59 percent was utilised
and approximately 215 square kilometres were left vacant even as indus-
try complains of a shortage of land to set up factories and plants. Of the
total land notified in six major states, 14 percent was later de-notified and
diverted to other profitable purposes not related to the SEZ (Parwez 2016:
142–144). The RFCTLARRA requires the government to ascertain if there
is unutilised acquired land available and to utilise the same before proceed-
ing to acquire land afresh. The Miscellaneous Provisions provide that if
acquired land remains unutilised for a period of five years from the date of
taking over possession, the same must be returned to the original owner or
owners or their legal heirs, as the case may be, or to the Land Bank of the
concerned government. Change in the original public purpose is disallowed
and if this original public purpose cannot be achieved then the appropriate
government can utilise such land for some other public purpose.

Removal of major defects in the LAA

Factoring Singur and SEZ policy learning, major changes were introduced
to the RFCTLARRA.

Change in the compensation regimen

A major flaw in the LAA was provision of inadequate compensation for
land losers (Wahi et al. 2017: 10). The LAA provided neither ‘value of the
land’ nor ‘just compensation’, but merely ‘reasonable’ compensation (Singh
2016: 69).
Perhaps the single most impactful transformation brought about by the
RFCTLARRA is the change in the compensation regimen. Compensation
has been enhanced manifold in monetary terms, as the market value arrived
at is to be multiplied by a factor of one to two in rural areas, based on the
distance of the project from urban areas, and a factor of one in urban areas.
Solatium has been enhanced to 100 percent of the compensation amount
from 30 percent of market value. State governments are empowered to
enact laws to further enhance the entitlements. The Act has curtailed the
power of the Central Government to reduce the compensation and R&R
benefits when amending the Schedules to the Act.
In many areas, agriculture is no longer remunerative, and farmers were
basically not averse to land acquisition but held back because of the
abysmally low compensation paid under the LAA. For example, in Uttar
Pradesh, where land acquisition was opposed virulently, viz., the Greater
Noida and Noida Extension, Tappal, Aligarh, Bajna, Dadri, and Karchana
areas, 80 percent of farmers owned one hectare or less of land and 40 per-
cent of farmers wanted to give up farming as it was not sustainable (Edito-
rial, The Times of India, 2011). The jump in the compensation package is
likely to bring them on board with parting with their lands. The experience
164  Rita Sinha
of Powergrid, a central PSU (public sector undertaking), shows that land-
owners in the Rajahaat area of Calcutta, in Agra, Uttar Pradesh, and in
Jharkhand state, who were contesting the Collector’s awards under the
LAA, are now willing to sell their lands to Powergrid as per compensation
provisions made in the RFCTLARRA (Srivastava 2014: 2).
However, negative reactions to the enhanced compensation have also
come in. Singh (2016: 68) mentions that the cost of acquisition will become
prohibitive for the government. The larger the area acquired, the higher
will be the cost per acre because of R&R for a higher number of landown-
ers. Chakravorty (2016: 57) maintains that the new compensation regime
reverses the distributional impact of acquisition from a deeply regressive
one that frequently devastated land and livelihood losers to one that creates
a windfall for land losers (not livelihood losers) and generates a tax on the
rest of the population. Chakravorty’s conclusions about the unsustainability
of the compensation provisions have been refuted by Wahi et al. (2017: 12)
on the grounds that, because of evasion of registration fees, most lands are
undervalued, so that government usually pays less compensation than the
market value of the land. Hence, the compensation provisions in the RFCT-
LARRA are not only sustainable but also realistic.
Overall, higher compensation is likely to remove the current major road-
block in land acquisition in most areas and revive the neoliberal agenda.

Introduction of R&R for affected families

The LAA regimen lacked concern regarding the fate of land losers beyond
providing low monetary compensation and provided no R&R at all for
landless families who were critically dependent on the acquired land for
their survival but were not entitled to any compensation for loss of live-
lihoods. Consequently, both land losers and the affected landless families
often made common cause to oppose land acquisition, as happened in Sin-
gur, as stark impoverishment stared them in the face in the aftermath of the
acquisition.
Sections 16–18, along with The Second Schedule of the RFCTLARRA not
only provide R&R for all ‘affected families’, both land owning and landless,
but also make R&R a justiciable right. R&R has also been made applicable
in the case of private purchases, and partial private purchase and partial
acquisition of land for private companies beyond the prescribed area. In
the latter case, R&R becomes applicable for the entire area, including that
which has been purchased through private negotiations.
However, there is a dichotomy about the preparation of the R&R Scheme
in the Act. While section 16 makes it appear as if the preparation of the
R&R Scheme is a consultative process since the draft R&R Scheme is
required to be discussed with the relevant local bodies and also discussed
in a public hearing, section 43 sub-section (3) states that the Administrator
is responsible for the formulation, execution, and monitoring of the R&R
 Land acquisition law in neoliberal India 165
Scheme ‘subject to the superintendence, directions and control of the appro-
priate Government’. The R&R Scheme would have had greater credibility
had its preparation been left in the hands of expert, independent agencies
rather than those of governments known for their penchant for displace-
ment rather than for rehabilitation.
Moreover, the land size when R&R becomes applicable will also be
decided by the appropriate government, most likely to be the state govern-
ments (Goswami 2016: 13). This leaves scope for ‘adjustments’ to accom-
modate private companies.
The RFCTLARRA, like the LAA, does not debar large-scale acquisitions
and consequential large-scale displacements. It merely provides R&R for
the affected families. The neoliberal agenda, thus, remains undisturbed,
although larger acquisitions will now come at much higher costs.

Curtailment of activities under public purpose

The vague definition of public purpose under the LAA and liberal interpre-
tation given to it by the courts enabled the justification of virtually every
land acquisition as serving a public purpose. Moreover, once land acquisi-
tion for a company was declared to be a public purpose, the State could
misuse its urgency powers for the acquisition.
Although the RFCTLARRA, too, does not define public purpose, it has
abridged the list of activities considered as public purpose and curtailed
powers of state governments to add to public purposes at will, through cen-
tralisation of activities hitherto more decentralised under the LAA, such as
restricting land acquisition for infrastructure projects to items listed in the
Central Government notification of the Department of Economic Affairs
dated 27 March, 2012, and restricting acquisition of land for industrialisa-
tion to provisions made in the Central Government’s National Manufactur-
ing Policy. Any addition to infrastructure facilities requires notification by
the Central Government after tabling such notification in Parliament. The
RFCTLARRA restricts use of urgency powers to the minimum area required
for the defence of India or national security or for any emergencies aris-
ing out of natural calamities or any other emergency with the approval of
Parliament.
Under the LAA there was opacity regarding the issue of notification and
declaration, which led not only to asymmetry of knowledge between requir-
ers and land losers, but also enabled the government to abuse its power by
changing the purpose of the acquisition from public purpose to acquisition
for private industry after the issue of the notification/declaration. A clas-
sic example is the case involving the Greater Noida Industrial Develop-
ment Authority (GNIDA), located in District Gautam Buddh Nagar of U.P.,
where after the issue of the notification, on 10.6.2009, and the declara-
tion, on 9.11.2009, for acquisition of land for GNIDA in village Shahberi
for the public purpose of integrated planned industrial development as per
166  Rita Sinha
the approved Development Plan, the state government, in connivance with
GNIDA, illegally changed the land use in March 2010 and handed over the
acquired land to private builders for constructing a multi-storied residential
complex. The Supreme Court held this to be a colourable exercise of power
by the state (Greater Noida Industrial Development Authority vs. Devendra
Kumar & Ors.).6 Under the RFCTLARRA the government is required to
state clearly in the notification the nature of the public purpose involved,
reasons necessitating the displacement of affected persons, summary of the
SIA Report, and particulars of the Administrator appointed for R&R. Simi-
larly, in the declaration, the state is required to give information about the
resettlement area and a summary of the R&R Scheme. There is, thus, less
opacity and better symmetry of information about the acquisition and R&R
and a curb on abuse of state power.
The new Act restricts land acquisition to the government’s own usage, for
PSUs, for PPP (public-private partnership) projects, and private companies
which fulfil the public purposes listed under the Act. As a result of lessons
learnt from past protests against land acquisition for private companies,
the RFCTLARRA has added the rider of consensual acquisition of land
for private companies and PPP projects. Prior consent of 80 percent and
70 percent of affected families is mandatory for acquisition of land for PPP
projects and private companies, respectively.
The restricted list of public purposes in the RFCTLARRA includes indus-
trialisation and creation of infrastructure which form the cornerstone of
neoliberalism. By offering the carrot of land acquisition, the government
can channel the resources of all eligible agencies to fulfil its neoliberal
agenda and the curtailment of activities under public purpose may actually
help to focus resources on it since land will not be diverted to other pub-
lic purposes. One view of this consent clause is that it has been included
merely to circumvent the hold-out problem faced by private companies
(Pal 2017: 163).
The process for carrying out the consensus for acquisition of land for PPP
projects and private companies is the sole responsibility of the government.
It is a well-known fact that in the past when consent has not been forthcom-
ing, the legal owners have been forced out of their lands and compensation
denied to them (ibid:162). There is evidence that fake documents purport-
ing to show consent of the Gram Sabha were produced to get clearance
from the government (Bhattacharya et al. 2017: 190). Hence, leaving the
consensus process entirely in government hands causes a sense of unease.

Social impact assessment

The LAA was criticised for lacking provisions for people’s participation in
the government decision to take over their land (Wahi et al. 2017: 10).
The consultative processes introduced in the new Act have already been
 Land acquisition law in neoliberal India 167
enumerated. The RFCTLARRA has also introduced an SIA Study for the
first time in the land acquisition law to:

Establish clearly the public purpose of proposed acquisition, to pre-

vent diversion of acquired land from stated public purpose from taking
place, not acquiring land in excess of actual requirement, no acquisition
of multi-crop irrigated land unless as a last resort and identification of
losers of livelihood and others entitled to compensation.
(Singh 2016: 71)

On the one hand, the SIA is slated to be prepared in a consultative and

participatory manner through a public hearing. On the other hand, the gov-
ernment has been assigned an over-arching role in the preparation of the
SIA – deciding the procedure for carrying out the SIA, arranging the consul-
tative process with the local bodies, getting the Social Impact Management
Plan (SIMP) prepared, organising the public hearing with affected families,
and giving publicity to the SIA and the SIMP. This is likely to cast a shadow
over the neutrality of the SIA Study and the SIMP.
Although an IMEG is empowered to veto the SIA Study on the grounds
that the project does not serve any public purpose or that the social costs
and adverse social impacts of the project outweigh the potential benefits, the
government retains the right to over-rule it and go ahead with the project
despite the veto. Thus, while giving voice to the demand for greater public
participation in the decision-making process of land acquisition, the RFCT-
LARRA leaves enough muscle with the State to ensure that the neoliberal
agenda is not derailed.

Special provisions for Scheduled Tribes

Unlike the LAA, the RFCTLARRA pays special attention to the Scheduled
Tribes (tribals or Adivasis), considering that the tribal belt has erupted in
violent protests against land acquisition. More than 80 districts in the heart-
land of India, most of them with a concentrated Adivasi population, have
been declared Left Wing Extremism–affected areas by the Government of
India (Bhattacharya et al. 2017: 192). A major triggering factor for frequent
use of eminent domain powers in the Scheduled Areas (SAs) is the presence
of rich natural resources for which there is a humungous appetite in both
the public and private sectors. The SAs are rich in coal, iron ore, bauxite,
and chromite (op. cit.). Further, 38 percent of all dams lie within the SAs,
and 27 out of the 50 major mining districts are part of SA districts, yielding
almost 90 percent of the royalty accruals to the central and state govern-
ments (Wahi and Bhatia 2018: 36–37). The tribals have a non-commodity
view of land so that the land market in SAs are not just imperfect but non-
existent as there are virtually no ‘willing sellers’ of Adivasi lands (Pal 2017:
168  Rita Sinha
162). This necessitates frequent use of land acquisition to access the natural
resources.
Sections 41 and 42 of the RFCTLARRAA make a wide range of provi-
sions to address various concerns of the Adivasis, especially that, as far as
possible, no land should be acquired in SAs, and even where it is acquired it
should be done only as a demonstrable last resort and that no land should
be transferred by way of acquisition in the SAs in contravention of any
prevailing law or final judgment of a court relating to land transfer, thereby
restricting transfer of land to ‘outsider’ private companies.
These provisions are mere placebos because the rich natural resources of
these areas make them ‘unsubstitutable’ lands, and the neoliberal state is
likely to continue acquiring tribal lands to access these resources. It remains
to be seen whether the Adivasis consider the major sops of the RFCT-
LARRA – higher compensation and R&R – adequate recompense for what
they lose culturally when they lose their land.

In conclusion
It may be said that the State had ‘compulsions’ rather than ‘justification’ to
continue with colonial land acquisition laws in the neoliberal era, because
of its indifference towards land governance reforms. The RFCTLARRA
has retained some colonial features and the schematic layout of the LAA
but has added new reformatory features so that it is more of a blended
wine in the old bottle of land acquisition. Overall, the RFCTLARRA has
imbued the State with overwhelming powers to control virtually every stage
of the acquisition process, so that, despite the reformative processes which
empower affected people and restrict abuse of State power, it retains the
vitality to compulsorily amass land, the basic raw material for neoliberal-
ism, and is an effective tool to accomplish the neoliberal agenda of the State.

Notes
1 William Pitt the Younger was the youngest British prime minister. The Pitt’s India
Act, 1784, established the dual system of control by the British government and
the EIC. The EIC’s political functions were differentiated from its commercial
activities.
2 All of them were aristocrats – large landholders.
3 This information was obtained from the DoLR.
4 They are as follows: Definitions, Preliminary Investigation (which included the
preliminary notification, hearing of objections, making of declaration, marking
out of land, enquiry by Collector, Report by Collector); Reference to the Court
(which included Award of Court, calculating costs of acquisition, and redetermi-
nation of compensation); Apportionment of Compensation; Payment of Compen-
sation or deposit of it in court followed by investment of the sum deposited in the
court; and Miscellaneous Provisions.
5 Based on first-hand information as Secretary of the DoLR 2008–2010
6 Special Leave to Appeal (Civil) No(s). 16366/2011, dated 6 July 2011, along with
batch of 36 SLPs
 Land acquisition law in neoliberal India 169
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Standing Committee on Rural Development. 2008–2009. ‘Fourteenth Lok Sabha,
Thirty-Ninth report. 2008’, The Land Acquisition (amendment) Bill, 2007, pre-
pared by Department of Land Resources, Ministry of Rural Development, Gov-
ernment of India. New Delhi: Lok Sabha Secretariat.
Standing Committee on Rural Development. 2011–2012. ‘Fifteenth Lok Sabha,
Thirty-First report, May 2012’, The Land Acquisition, Rehabilitation and Resettle-
ment Bill, 2011, Ministry of Rural Development (Department of Land Resources).
New Delhi: Lok Sabha Secretariat. Retrieved from www.indiaenvironmentportal.
org.in/files/file/31st%20Report%20Complete.pdf accessed on 3 September 2019.
State of Madhya Pradesh vs Vishnu Prasad Sharma, AIR 1966 SC 1593.
Steger, Manfred B. and Ravi K. Roy. 2010. Neoliberalism, a very short introduction.
New York: Oxford University Press.
Wadhwa, D.C. 1989. Records-of rights-guaranteeing title to land-a preliminary
study. New Delhi: Planning Commission, Government of India.
Wahi, Namita. 2016. ‘Property’, in Sujit Choudhry, Madhav Khosla and Pratap
Bhanu Mehta (eds.), The oxford handbook of the Indian constitution (pp. 943–
963). New Delhi: Oxford University Press.
Wahi, Namita and Ankit Bhatia. 2018. The legal regime and political economy of
land rights of scheduled tribes in the scheduled areas of India. New Delhi: Centre
for Policy Research.
Wahi, Namita, Ankit Bhatia, Dhruva Gandhi, Shubham Jain, Pallav Shukla and
Upasana Chauhan. 2017. Land acquisition in India: a review of supreme court
 Land acquisition law in neoliberal India 171
cases from 1950 to 2016. New Delhi: Centre for Policy Research. Retrieved from
http://cprindia.org/news/5978 accessed on 23 December 2018.
World Bank, Urban Resettlement – Legal Report. 2007, January. Urban resettlement
and law-land acquisition, R&R and slum improvement – case studies of Maha-
rashtra (Mumbai), Tamil Nadu (Chennai) and Andhra Pradesh (Hyderabad)-
A report submitted to the World Bank for the Urban Resettlement Workshop,
Bangkok, Thailand, 10–13 September 2006.
8 Land acquisition for
economic development Malabika PalLand acquisition for economic development

A comparative analysis of some

landmark court judgments of
the United States of America
and India
Malabika Pal

The use of eminent domain for the acquisition of land has been very con-
troversial in the two largest democracies of the world, the United States of
America (USA) and India. In India, the issue has come in for greater scrutiny
in the context of the neoliberal design of development. The power to acquire
land and property was vested in governments with two major limitations:
that the power be used only for public use and that just compensation must
be paid. In the USA, the Fifth Amendment to the federal Constitution gives
the takings clause which states: ‘(N)or shall private property be taken for
public use without just compensation’. It is through the interpretation of the
terms that the scope of the power has expanded over the years. One major
contentious issue is acquisition of land and property on behalf of the pri-
vate sector for economic development or what has been termed ‘economic
development takings’. This has come into focus after the landmark case of
Kelo vs. City of New London1 (Kelo) decided by the US Supreme Court. In
India, the Land Ordinance promulgated on 31 December 2014 was seen as
a determined attempt to alter the land acquisition legislation to legitimise
the large-scale acquisition of land for ‘private entities’ for the ‘public pur-
pose’ of economic development.
There has been no guidance in the Constitution regarding the specific
meanings of the two terms ‘public purpose’ and ‘just compensation’ both in
India and the USA. Courts and legal scholars have spent enormous efforts in
the USA to interpret the two terms. In India, the terms have been used to suit
the development paradigm of the time. In the Nehruvian period, State-led
industrialisation was the public purpose for which large tracts of land were
acquired using the Land Acquisition Act, 1894 (LAA). The dispossession
that resulted was termed ‘development – induced-displacement’. In recent
decades, using the neoliberal economic model, land acquisition takes place
for purposes which may involve just transfer of land from one private party
to another under the garb of development.
The scrutiny of the issue is important since development is a legitimate
goal of the State. In a detailed book on Kelo, Somin (2015) has gone into the
 Land acquisition for economic development 173
historical and constitutional background of the use of eminent domain and
concluded that there should be a ban on economic development takings. In
this context, it is important to analyse what interpretation the courts have
employed. While there have been thorough analyses of the reasoning of
landmark decisions regarding economic development takings in the USA,
there has hardly been any examination of the reasoning in Indian court
judgments.2 While in the USA the justification of public use is subject to
judicial review, in India after the 44th Constitutional Amendment, the only
restraint that remained was Article 6 (3) of the LAA whereby any declara-
tion of the government that the land was required for public purpose is
conclusive evidence unless shown to be a colourable exercise of power.
This chapter begins with some important developments in India and the
USA to provide a background to the interpretation of ‘public purpose’ as
economic development. This is followed by a section which goes deeper into
the nature of the neoliberal economic development paradigm adopted in
India which has focussed mainly on efficiency and ignored equity, inclusive-
ness, and sustainability. The next section gives the influential standard in
takings discourse by Frank Michelman (1967) which has the unique feature
of incorporating ‘justice’ along with efficiency. The next section examines a
few landmark judgments from the two countries to see how the reasoning
regarding economic development takings has evolved. In the United States,
Berman vs. Parker3 (Berman) is said to have opened the ‘floodgates of eco-
nomic development takings’.4 In India, the successive constitutional amend-
ments and landmark judgments such as Somavanti and Others vs. State of
Punjab and Others (And connected Petitions)5 (Somavanti) have created
conditions favourable for large-scale acquisitions for economic develop-
ment. The more recent judgment in Kedar Nath Yadav vs. State of West
Bengal and Ors6 (hereafter Singur Case) merits a separate section to high-
light the significant position taken with regard to the question of public
purpose. This is followed by a comparative analysis and the relevance of
Michelman’s framework. A final section gives the concluding remarks.

Judicial and legislative views on compulsory acquisition for

economic development
The decision in Kelo upholding the use of eminent domain for the pur-
pose of economic development was important because just a year earlier
in the landmark ruling in County of Wayne vs. Edward Hathcock7 (Hath-
cock), the Supreme Court of Michigan had reversed the oft-cited case of
Poletown Neighborhood Council vs. City of Detroit8 (Poletown) on the
ground that the economic development justification does not serve a valid
public purpose. The majority opinion in Kelo was milder, with suggestions
for ‘a national debate’ or ‘state legislation’ coming from Justice John Paul
Stevens. Sharp dissents were put forward by two of the judges, Justice San-
dra Day O’Connor and Justice Clarence Thomas. The reasoning employed
174  Malabika Pal
in the judgment was scrutinised, and there was huge ‘political backlash’.
According to Somin (2015: 60): ‘In the ten years prior to Kelo, four state
Supreme Courts – Illinois, Michigan, Montana, and South Carolina (which
reaffirmed its earlier stance) – held that their state constitutions forbade eco-
nomic development takings that transfer property to private parties’. The
post-Kelo legislations vary in their effectiveness in restricting the power of
eminent domain. Somin concludes that ‘the Kelo decision was a major error
that the Court should eventually overrule’ (Somin 2015: 4). There have been
calls for a constitutional amendment to ban economic development takings
altogether (Cohen 2006).
In India, there was large-scale acquisition under the Special Economic
Zones Act, 2005, which allowed compulsory acquisition of land for the
setting up of industries in enclaves. However, this was stalled because of
fierce opposition by farmers’ organizations, civil society, and particularly
the electoral debacle of the left-front government in West Bengal. Thereaf-
ter, the focus shifted to equity or fairness, with policies being drafted at the
national level to make rehabilitation legally enforceable. Just a few months
before the general elections in 2014, new legislation entitled the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (RFCTLARR) was notified. It is interesting to
note that during the process of consultations, the Standing Committee of
Parliament in its Report on Rural Development dated 17 May 2012 had
recommended that the government should refuse to acquire land for pri-
vate parties (Ramesh and Khan 2015: 4). The Act brought in many new
provisions, notable among which were the consent clause by which 70 per-
cent consent was required for purely public projects and 80 percent for
public-private partnership (PPP) projects. An elaborate process of social
impact assessment (SIA) was specified which included consultation with the
affected land losers. It was explicitly incorporated that Urgency Clause was
to be used only for national defence and in cases of natural calamities (sec-
tion 40 (1) of the RFCTLARR). The compensation amount was increased
to four times the market value in rural areas and twice the market value in
urban areas along with enhanced solatium taking into account the compul-
sory nature of the acquisition.
On 31 December 2014, the Land Ordinance was promulgated which
included four broad categories – industrial corridors, infrastructure, rural
infrastructure, and affordable housing along with national defence for
which consent and SIA would not be needed, effectively putting them under
the category of the Urgency Clause. The unwritten justification was that
the urgency route was imperative for economic development to occur.
The broader ‘private entity’ was substituted in place of ‘private company’
throughout the Act.9 Although the bill incorporating these and other changes
was passed in the Lok Sabha in the budget session in February 2015, it
failed to gather the requisite numbers in the Rajya Sabha. Thereafter, the
Ordinance was re-promulgated twice, and a second bill with some further
 Land acquisition for economic development 175
changes was introduced in Parliament again in the monsoon session and
sent to a Joint Parliamentary Committee. When it became difficult to get
political muster to pass the bill, most of the contentious provisions were
deleted and the bill deferred to the winter session of Parliament. There was
a call to the states to incorporate provisions of the Land Ordinance, which
later led to competitive dilution in state land acquisition laws.10
This entire sequence of events has raised important issues: the attempt to
expand the scope of eminent domain beyond recognition through legislation
in the name of economic development; facilitate the urgency route for large-
scale acquisition without consent, SIA, and consultation; and expand the
use of the coercive power of compulsory acquisition on behalf of the private
sector. The process of economic development involves changes in land use,
and conditions need to be made such that a land market develops which will
channel the resource to its highest valued use.

Neoliberal context of land acquisition for

economic development
Since the mid-1980s, India has adopted what has been termed ‘neoliberal-
ism’ which broadly refers to an economic model built upon the classical lib-
eral ideal of the self-regulating market. The public policies that characterise
this paradigm include deregulation of the market, liberalisation of trade and
industry, and privatisation of State-owned enterprises.11 Although there is
a shared belief across the globe on the power of self-regulating markets to
create a better world, neoliberalism has been adapted in different countries
according to their particular social contexts.
The nature of neoliberal economic development adopted in India has been
described in a lucid way by Bhaduri (2009). He emphatically points out that
economic growth must be seen as an outcome of employment growth. In
contrast, three features, among many, militate against this. One, the State
has abdicated its role as a key player in industrialisation. Federal and state
governments, of all political hues, have been extending various privileges to
large corporations, mostly private, as incentives for promoting corporate-
led development. The composition of output produced is oriented towards
the rich minority. Two, the increasing openness of the Indian economy to
international finance and capital flows rather than to trade in goods and
services has the effect that the foreign exchange reserves are mostly due to
accumulated portfolio investments and short-term capital inflows from var-
ious financial institutions. Finally, the fiscal restraint adopted by the State
to comply with the interests of financial markets has adverse consequences
for expanding public expenditures in basic health, education, and public
distribution. This, coupled with the low capacity of industries to generate
employment, leads to widening inequality.
The most visible aspect of this process of industrialisation is land acquisi-
tion by the State for the ‘public purpose’ under the major heads of mining,
176  Malabika Pal
industry, and special economic zones (SEZs). Most of those displaced by
force are Adivasis or tribals, who constitute 40 percent of those displaced
in the name of development, although they comprise only 8 percent of the
population. Bhaduri (2009: 37) writes: ‘The public purpose such violence
serves is handing over to private corporations the possession of the iron-
rich land in Chhattisgarh, Jharkhand and Madhya Pradesh, the bauxite-rich
land of Orissa, the diamond mines in Bastar and so forth’. The State also
provides supporting infrastructure to these corporations at public cost by
providing cheap sources of water, transport, and tax concessions. This leads
to rapid growth of corporate profit and wealth. Even the common lands
that traditionally provided supplementary income to the poor are systemati-
cally encroached upon. Bhaduri contends that this forcible acquisition of
land and dispossession leads to internal colonisation of the poor. The poor-
est face the terror that is ‘development’.

Incorporating both efficiency and equity considerations

The costs of the neoliberal strategy of development have led to coercive
redistribution which needs to be reversed. The dispossession that has
resulted in this phase of India’s economic growth has been far less devel-
opmental since they are mostly for real estate compared with the earlier
Nehruvian state which acquired land for public-sector industrial projects
that generated high-quality employment and had ancillary linkages and gen-
erated revenue for the State.12
One framework that can be useful in this context is the standard provided
by Michelman (1967). To bring in justice into the cost-benefit calculation of
projects, he introduced ‘demoralization costs’ – property ownership gives a
sense of security and people can then invest for future enjoyment of product.
Any uncertainty involving redistributions destroys this sense of security and
causes demoralisation. These are costs which are psychological in nature
and distinct from the usual economic costs incorporated in the cost-benefit
calculation. Michelman distinguishes among three factors: efficiency gains,
demoralising costs, and settlement costs. Efficiency gains (B − C) are:

The excess of benefits produced by a measure over losses inflicted by it,

where benefits are measured by the total number of dollars which pro-
spective gainers would be willing to pay to secure adoption, and losses
are measured by the total number of dollars which prospective losers
would insist on as the price of agreeing to adoption.

Demoralisation costs (D) consist of:

The total of (1) the dollar value necessary to offset disutilities which
accrue to losers and their sympathizers specifically from the realization
that no compensation is offered, and (2) the present capitalized value
 Land acquisition for economic development 177
of lost future production (reflecting either impaired incentives or social
unrest) caused by demoralization of uncompensated losers, their sym-
pathizers, and other observers disturbed by the thought that they them-
selves may be subjected to similar treatment on some other occasion.
(Michelman 1967: 1214)

Settlement costs (S) are ‘measured by the dollar value of time, effort, and
resources which would be required in order to reach compensation settle-
ments adequate to avoid demoralization costs’. According to Michelman,
positive efficiency gains (B − C > 0) are not enough to go forward with a
project; settlement costs and demoralisation costs also need to be taken into
account. The standard helps to answer two questions: one, which projects
should go forward and two, when should compensation be paid to losers.
A project for which the dollar benefits exceed costs should not be adopted
if the net efficiency gains are less than both demoralisation costs (D) and
settlement costs (S). Symbolically, a project should not be undertaken if
(B − C) < min (D, S). Regarding compensation, we first consider those pro-
jects which pass the test, that is, for which (B − C) > min (D − S). For these,
the lower of the two, D or S, should be incurred. That is, if D > S, then
compensation should be paid but if S > D, then compensation should not
be paid.

USA and Indian court judgments in economic development

takings cases
The objective of this section is to examine the reasoning employed in some
landmark judgments to bring out certain common threads such as justifica-
tion of public purpose when the actual interest involved is a private one,
the end justifies the means, justification of bolstering the economy either
through an increase in employment or tax revenue, and distribution of the
burden of development. Since the verdict in Kelo, the discourse in the two
countries has been very different, but in both countries, judicial deference to
legislative determination has meant that it is only through legislation that a
more equitable framework can be reached.13
In Berman, the US Supreme Court in a unanimous decision, delivered
by Justice William O. Douglas, upheld the use of eminent domain for a
comprehensive redevelopment plan covering a large area of the District of
Columbia in the 1950s. It was held to satisfy public purpose since there was
widespread blight which was injurious to public health, safety, morals, and
welfare. The appellant had argued that his property was not blighted by
any standards to which the Court reasoned: ‘community development pro-
grams need not, by force of the Constitution, be on a piecemeal basis – lot
by lot, building by building’. It was within the authority of the Congress to
decide what values it thinks are in the public interest and could authorise
the lease or resale to private parties. As for the justice part, the Court stated:
178  Malabika Pal
‘The rights of these property owners are satisfied when they receive the just
compensation which the Fifth Amendment exacts as the price of the taking’.
In the 5–2 decision in Poletown, many of the important principles enunci-
ated in Berman came in for close scrutiny. The Detroit Economic Develop-
ment Corporation proposed to acquire a large tract of land to be given to
General Motors Corporation (GMC) for the establishment of an assem-
bly plant. Under the Economic Development Corporation Act, the state of
Michigan was empowered to assist industries and commercial enterprises to
strengthen and revitalise the economy in the early 1980s. The plaintiffs, who
consisted of a neighbourhood organisation that would lose 4,200 homes,
challenged ‘the constitutionality of using the power of eminent domain to
condemn one person’s property to convey it to another private person in
order to bolster the economy’. They argued that whatever incidental ben-
efits may accrue to the public, the primary benefit from assembling land for
GMC would be as profits to the corporation and thus did not constitute a
public use.
The Supreme Court of Michigan upheld the acquisition by relying on the
Berman reasoning that when a legislature speaks, the public interest has
been declared as ‘well-nigh conclusive’ and that the right of an individual
was secondary to general benefit. The benefit to be received by the munici-
pality was a ‘clear and significant one’ in terms of alleviating unemployment
and revitalising the economic base of the community. Justice Fitzgerald in
his dissent highlighted that Michigan cases show a ‘limited construction’ of
the term ‘public use’ for condemnation purposes and reasoned that it cannot
be such that the evolution has ‘eroded our historic protection against the
taking of private property for private use to the degree sanctioned by this
Court’s decision today’. He argued:

The decision that the prospect of increased employment, tax revenue,

and general economic stimulation makes a taking of private property
for transfer to another private party sufficiently ‘public’ to authorize the
use of eminent domain means that there is virtually no limit to the use
of condemnation to aid private businesses.

Further, the condemnation placed the ‘burden of aiding industry on the few,
who are likely to have limited power to protect themselves from the excesses
of legislative enthusiasm for the promotion of industry’. Justice Ryan in his
dissent attested to this by stating that the decision disregarded the rights
of the few in pursuit of the ‘disastrous philosophy that the end justifies
the means’. The ‘quick take’ statute of Michigan was used because of the
deadline of 1 May 1981 imposed by GMC, and this did not ‘afford ade-
quate time for sufficient consideration of the complex constitutional issues’.
Although the projected public cost of preparing the site for GMC was more
than $200 million, the site was sold to GMC for $8 million along with a
12-year tax abatement clause. In his opinion, ‘the unintended jurisprudential
 Land acquisition for economic development 179
mischief’ which had been done, if not rectified, would have ‘echoing effects’
far beyond the case at hand. The unwavering rule of the state for over a
century was that the power of eminent domain could be used for private
corporations only in cases falling within ‘the instrumentality of commerce
exception’. These were: (1) public necessity of the extreme sort – those pri-
vate enterprises generating public benefits whose very existence depends on
the assembly of land by government coordination. The production of auto-
mobiles does generate public benefits, but it cannot be argued that the exist-
ence of a new assembly plant for GMC requires the use of eminent domain;
(2) continuing accountability to the public; and (3) when the land is selected
using criteria not in the interest of the private corporation but in public
interest. In the case of GMC, the factors that determined the location were
matters of private significance. He thus concluded that with this case ‘the
Court has subordinated a constitutional right to private corporate interests’.
In the oft-cited case of Hawaii Housing Authority vs. Midkiff14 (Mid-
kiff), the US Supreme Court unanimously upheld the acquisition in the mid-
1980s, relying heavily on Berman. In Midkiff, the attempt was to reduce the
perceived social and economic evils of land oligopoly and thus was taken
as a valid public use. To the question using eminent domain for transfer of
property for private use, it was argued that the Court had long ago rejected
the literal requirement that property should be put for use by the general
public.
After 23 years, the Supreme Court of Michigan reversed its verdict in
Poletown, the case that had been regarded as a ‘visible symbol of the abuse
of eminent domain’ (Somin 2004) and quashed the acquisition in Hathcock.
Reversing the judgment in Poletown, the majority held: ‘In this case, Wayne
County intends to transfer the condemned properties to private parties in
a manner wholly inconsistent with the common understanding of “public
use” at the time our Constitution was ratified’. The majority reasoned that
the three distinguishing factors that Justice Ryan had highlighted in Pole-
town described the understanding that prevailed in Michigan’s pre-1963
eminent domain jurisprudence, and that must have been the meaning when
the Constitution was ratified. Apart from Poletown, Wayne County could
not find a single case in which it was held that a vague economic benefit
accruing from a private-profit maximizing enterprise is a ‘public use’. It
added: ‘To justify the exercise of eminent domain solely on the basis of the
fact that the use of that property by a private entity seeking its own profit
might contribute to the economy’s health is to render impotent our constitu-
tional limitations on the government’s power of eminent domain’.
Although the reversal of Poletown was hailed as the landmark, shortly
after, the US Supreme Court held in Kelo that the use of eminent domain for
the acquisition of private property to increase tax revenue and to revitalise
an economically distressed city constitutes ‘public use’ within the takings
clause. The Supreme Court of Connecticut, which relied heavily on Ber-
man and Midkiff had ruled in favour of the city of New London’s economic
180  Malabika Pal
development plan which included a $300 million plant by the pharmaceu-
tical giant Pfizer. Nine of the 15 privately owned condemned properties
brought an action claiming that the taking violated the Fifth Amendment’s
public use restraint. The majority held that the city had invoked a state
statute that specifically authorised the use of eminent domain to promote
economic development; that the city was trying to coordinate various com-
mercial, residential, and recreational uses of land with the aim of creating
greater value; and that the carefully formulated plan carried out in a com-
prehensive manner would provide appreciable benefits to the community.
They also held that promoting economic development was a traditional
and long-accepted function of the government, and there was no way of dis-
tinguishing economic development from other public purposes. Even though
conditions of blight were not present, the area was ‘sufficiently distressed’
to justify a programme of economic rejuvenation. The US Supreme Court
did not require a ‘reasonable certainty’ that public benefits would actually
materialise and refused to ‘second-guess’ as to which particular lands were
required for plan implementation. Finally, it argued that the Fifth Amend-
ment did not constrain the states from placing further restrictions on the
exercise of takings power. It relied on Berman in its ruling that the chal-
lenges of individual owners must be resolved not on an individual basis but
in light of the entire plan.
Justice Sandra Day O’Connor, who was joined in her dissent by Justice
Antonin Scalia, the Chief Justice, and Justice Clarence Thomas, gave a ster-
ling dissent which became the basis of an enormous amount of debate.15 She
began by quoting Justice Chase who in Calder v Bull16 decided just after the
Bill of Rights was ratified, stated:

[A] law that takes property from A and gives it to B; It is against all rea-
son and justice, for a people to entrust a Legislature with such powers;
and, therefore, it cannot be presumed that they have done it.

She went on to argue that the Court has abandoned this long-held limitation
and under the banner of economic development made all private property
vulnerable to a taking provided they can be shown to yield greater benefits.
If the incidental public benefits are considered enough, it effectively means
that the ‘for public use’ part of the takings clause no longer exists. The
petitioners’ contention was one of principle: that the property can be taken
for building roads or railroads but not for private use and profit making.
She argued that the case at hand presents a fundamental question: ‘Are eco-
nomic development takings constitutional?’ Her conclusion was that they
are not. She argued that the takings in Berman and Midkiff removed harm
and thereby directly benefitted the public even though they were turned over
to private parties. She argued:

The trouble with economic development takings is that private benefit

and incidental public benefit are, by definition, merged and mutually
 Land acquisition for economic development 181
reinforcing. In this case, for example, any boon for Pfizer or the plan’s
developer is difficult to disaggregate from the promised public gains in
taxes and jobs.

Implicit in the Court’s decision is that eminent domain may be used to

upgrade property which means that the ‘specter of condemnation hangs
over all property’.
Justice Clarence Thomas in his dissent argued that the change in phra-
seology has occurred so that ‘a costly urban renewal project whose stated
purpose is a vague promise of new jobs and increased tax revenue’ and
which is agreeable to the private corporation Pfizer is approved as ‘public
use’. This erases the Public Use Clause from the Constitution, and that is
something the Court cannot do given that these were originally ratified lib-
erties. After going through a series of cases, he argued that the questionable
application of Berman and Midkiff shows that the ‘public purpose’ standard
is ‘not susceptible to principled application’. He concluded: ‘Allowing the
government to take property solely for public purposes is bad enough, but
extending the concept of public purpose to encompass any economically
beneficial goal guarantees that these losses will fall disproportionately on
poor communities’.
This dissent of Justice Thomas is very significant for India since the neolib-
eral design of development has meant that costs have fallen disproportion-
ately on the poor. One important reason is the valuation method arising out
of the colonial LAA followed for 119 years, with two amendments in 1962
and 1984, to suit successive models of development. It is no wonder that
the relevant sections 23 and 24 have been the most contentious. Section 23
stated that, in determining the amount of compensation to be awarded for
land acquired under the LAA, the Court must take into consideration the
market value of the land on the date of publication of notification under
section 4(1), the damages sustained on account of standing crops or trees
on the land, and severance of the land from the land loser’s other lands or
because the acquisition injuriously affects the land loser’s other property at
the time of the Collector’s taking possession of the land. Section 24 specified
that the Court shall not take into account the degree of urgency which led to
the acquisition, any disinclination of the land loser, and any post-acquisition
increase in the value of the land likely caused by changed land use.

The Indian scenario between the 1930s and 1980s

The interpretation of these clauses by the courts has been crucial for determin-
ing the final value of land.17 One landmark case decided in pre-independent
India (in 1939) in which the reasoning has been discussed in detail is Sri
Raja Vyricherla Narayana vs. The Revenue Divisional Officer.18 We discuss
this case in detail to highlight that the interpretations in colonial times of
various aspects of sections 23 and 24 adopted without much change in post-
independent India. This case concerned an appeal regarding the appropriate
182  Malabika Pal
quantum of compensation for the acquisition by the Vizagapatnam Har-
bour Authority of his land known as Lova Gardens adjoining the harbour.
These gardens were formed by a valley, the upper portion of which consisted
of a shallow basin in the hills which formed a catchment area of a spring
of water yielding even in the dry season an average flow of 50,000 gallons
a day of excellent drinking water. Started in 1920, the construction of the
Vizagapatnam Harbour had made considerable progress by 1926, with the
possibility of it being ready for opening in 1929. The Harbour Authority
allocated the harbour site to oil companies and other industrial concerns.
On 5 January 1929, the appellant filed his compensation claim, saying that
the potentiality of Lova Gardens as a building site would be destroyed if he
were deprived of the spring. He claimed Rs. 2,50,000 on account of ‘dam-
ages sustained by severance’, Rs. 1,200 per acre for the land, and Rs. 16,050
as the value of the masonry structures, roads, and trees on the land; the total
claim amounted to Rs. 3,96,730. The Land Acquisition Officer on 18 Janu-
ary 1929 awarded Rs. 17,745–1–3, including 15 percent solatium as pre-
scribed by section 23(2) of the LAA. For the spring, he awarded Rs.5,000;
for the trees and buildings, Rs. 4,493; and the land at partly Rs.50 per acre
and partly at Rs.300 per acre.
The appellant argued before the subordinate judge of Vizagapatnam that
the matter should be referred to the Court for determination under section 18
of the LAA, claiming that the spring could be used by the appellant or as a
source of water supply for the Harbour Authority or the oil companies and
others carrying on their business in the harbour area. The judge found that,
as of 13 February 1928, the value to the vendor of the potentiality of his land
could be assessed even though there were no other potential purchasers other
than the Harbour Authority. The contingent possibility of the user had to be
taken into account and not the realised possibility as the basis of valuation,
and the use to which the acquiring authority has actually put the property
would be strong evidence to show that property acquired could be put to
such use by the owner on the date of acquisition. He accordingly made a
total award of Rs. 120,750, including solatium and interest. The respondent
Harbour Authority appealed to the Madras High Court. Wadsworth and
Stodart JJ allowed the appeal on 4 May 1937 on the grounds that the owner
on his own could not have made profitable use of the land and carry out a
water supply scheme in the malaria-infested area, and the acquisition was
meant to make the area fit for development. There could not be any value
for the special adaptability of the land to supply drinking water to the Har-
bour Authority or anyone else, and the value of the spring arose entirely
because of the anti-malarial scheme carried out by the Harbour Authority.
The award of the Land Acquisition officer was restored.
The landowner then appealed to His Majesty in–Council. Justice Romer
stated:

The general principles for determining compensation that are specified

in these sections differ in no material respect from those upon which
 Land acquisition for economic development 183
compensation was awarded in this country under the Land Clauses
Act, 1845, before the coming into operation of the Acquisition of Land
(Assessment of Compensation) Act of 1919. . . compensation must be
determined, therefore, by reference to the price which a willing vendor
might reasonably expect to obtain from a willing purchaser.

Any sentimental value far in excess of its ‘market value’ should not be taken
into account to increase the compensation.
Justice Romer, in his detailed discussion of what constitutes ‘the market
price’ in section 23 of the LAA, argued that unlike commodities, there is no
market for land and therefore the prices of similar plots cannot be ascer-
tained. Thus, prices quoted in past deals for land of similar quality and posi-
tion could be taken as the ‘market value’. If the land possesses some unusual
or unique features, then there will be no market value to guide them and it
will have to be determined as best as possible from the materials before the
Court. He cautioned:

[I]t is equally plain, however, that the land must not be valued as though
it had already been built upon, a proposition that is embodied in Sec-
tion 24 (5) of the Act and is sometimes expressed by saying that it is
the possibilities of the land and not its realised possibilities that must be
taken into consideration.

The total price on 13 February 1928 would be Rs. 40,000, which along with
solatium amounts to Rs.46,000.
The determination of the value of land is fraught with contention because
of the variation in valuation which can be the case even when the same
method is used throughout in a single case of successive litigation. In the
case of Prithiviraj Taneja vs. State of Madhya Pradesh and Others,19 the
Land Acquisition officer awarded Rs.7,616, including solatium; the District
Judge enhanced it to Rs.32,285 plus 6 percent interest. The owner peti-
tioned the land should be valued at Rs.10 per square yard before the Mad-
hya Pradesh High Court which valued it at Rs.1 per square yard and, adding
loss of earnings, solatium, and interest, the award amounted to Rs.88,381.
In the Supreme Court of India, the owner’s counsel argued that the small
plots adjoining the land had been sold for Rs.8 and Rs.9 per square yard.
The Supreme Court, however, held that Rs.1 represented a ‘fair market
value’ for the land in dispute and stated: ‘We agree with the High Court
that the price paid for small plots of land cannot provide a safe criterion for
determining the amount of compensation for a vast area of land’. Dismiss-
ing the appeal, it concluded:

There is an element of guess-work inherent in most cases involving

determination of market value of the acquired land. But this in the very
nature of things cannot be helped. The essential thing is to keep in view
the relevant factors prescribed by the Act. If the judgment of the High
184  Malabika Pal
Court reveals that it has taken into consideration the relevant factors,
the assessment of the market value of the acquired land should not be
disturbed.
[Italics added]

We note that it is also because of the guess work involved that the compen-
sation awarded can be fixed at a level far below what the land loser would
be happy to accept.
Although the valuation of land has been the most contentious issue, there
have been other points of contention. In R L Arora vs. The State of Uttar
Pradesh,20 the petitioner owned land in the village of Nauraiya Khera in the
district of Kanpur, Uttar Pradesh, out of which nine acres were sought to be
acquired through eminent domain for an industrialist. Later, the Supreme
Court quashed the acquisition21 on the grounds of inadequate consideration
of how the product would be sufficiently useful to the public to justify the
acquisition for a company. In 1962, by amending sections 40, 41, and 7 of
the LAA, impediments were removed which had come in the way of the
earlier acquisition, and the validity of the acquisition was upheld.
The stage for large-scale acquisition without much judicial scrutiny was
set when the Supreme Court of India stated in Somavanti:

Now whether in a particular case the purpose for which land is needed
is a public purpose or not is for the State Government to be satisfied
about. If the purpose for which the land is being acquired by the State is
within the legislative competence of the State the declaration of the Gov-
ernment will be final subject, however, to one exception. That exception
is that if there is a colourable exercise of power the declaration will be
open to challenge at the instance of the aggrieved party.

The majority opinion was that the declaration made by the government
under the Land Acquisition Act, 1894, was conclusive evidence of pub-
lic purpose and open for judicial scrutiny. The allegation of contravening
Art.14 was also dismissed on this ground. It was further argued by the
majority that the expression ‘partly out of public revenues’ in the proviso
section 6(1) of the Act did not necessarily mean that the State’s contribu-
tion must be substantial and would depend upon the facts of the case and
therefore was not a colourable exercise of power. Justice Subba Rao, in his
dissent argued that the interpretation ‘wholly or partly’ could only mean
substantial part of the estimated compensation and Rs. 100 in this case can-
not be taken as a substantial part.
In Indrajit C Parekh of Ahmedabad . . . vs. State of Gujarat And Ors,22 the
acquisition of 5,632 square yards of private land for setting up dispensaries
for the Employees State Insurance Scheme, Ahmedabad was upheld by the
Supreme Court of India and the contribution of Rs. 1 by the state of Guja-
rat fulfilled the public purpose requirement. The allegation of colourable
 Land acquisition for economic development 185
exercise of power was quashed on the grounds that a nominal contribution
was sufficient.

Continuity of judicial precedents in the neoliberal era

Two trend-setting cases – of 2003 and 2008 – are discussed here to show the
continuity of reasoning from the 1960s and 1980s.
In Pratibha Nema & Ors vs. State of M.P. & Ors,23 the acquisition of
73.3 hectares of dry land located in Rangwasa village of the Indore Dis-
trict to establish a diamond park became the contentious issue. The Indus-
tries Department and/or Madhya Pradesh Audyogik Kendra Vikas Nigam
Ltd. would add another 44.8 hectares of government land and would then
allot the same to private industrial units for setting up diamond-cutting and
polishing units with modern technology. It was expected that ‘prestigious
exporters from India as well as foreign countries were likely to establish
their units in this park which would generate good deal of foreign exchange
and create employment potential’. The petitioners argued that the acquisi-
tion of land was for ‘the Company and not for public purpose’ and hence
was a colourable exercise of power. This was quashed by the Supreme Court
on the grounds that ‘the acquisition was thought of with the earnest objec-
tive to achieve industrial growth of the state in public interest’.
Another landmark case for acquisition for economic development was
Sooraram24 in which the allegation was that the Government of Andhra
Pradesh sought to acquire land to develop a ‘Financial District and Allied
Projects’ ‘with mala fide intention and oblique motive to transfer valua-
ble land of small farmers to a foreign company and few selected persons
with vested interest’. It was, therefore, a colourable exercise of power. The
attempt to use the Urgency Clause was quashed by the High Court of Andhra
Pradesh as being ‘illegal, unlawful and unwarranted’. The appellants argued
that in the era of globalisation, if foreign companies wanted to set up busi-
ness, eminent domain must not be used to facilitate their establishment.
In the Supreme Court, some American cases, including Berman, Midkiff,
and Kelo, were cited as precedents. Pointing out that the present case was
similar to Kelo, the Supreme Court relied on the majority reasoning and
argued that when the ‘legislature’s purpose is legitimate and the means not
irrational’ the courts cannot debate about the ‘wisdom of socio-economic
legislation’. Also, the public ends can be better served ‘through an agency
of private enterprise’. A series of Indian cases25 were referred to, to finally
conclude that what is important is whether the acquisition is for the gen-
eral interest of the community as opposed to the private interest of an
individual. It held: ‘If the project taken as a whole is an attempt in the
direction of bringing foreign exchange, generating employment opportuni-
ties and securing economic benefits to the State and the public at large, it
will serve public purpose’. However, it added that not all cases are above
judicial scrutiny.
186  Malabika Pal
The landmark interpretation of public purpose
in the Singur judgment
In a significant development, the Supreme Court of India quashed the acqui-
sition of land in Singur decided on 31 August 2016. Tata Motors Ltd. (TML)
had proposed to build a factory on 1,000 acres of land which was acquired
by the West Bengal Industrial Development Corporation and would employ
1,800 people through direct employment and 4,700 employees through ven-
dors and service providers, thus serving the public purpose of alleviating the
unemployment problem in the state.26 However, this argument did not hold
up to judicial scrutiny because it was held that after the 1984 Amendment to
the LAA, acquisition of land for a company is no longer covered under ‘pub-
lic purpose’ under section 3(f)(viii) but would have to be done under Part
VII. Also, it was held by Justice Gowda that many objections were filed by
the owners under section 4 of the LAA. These should have been considered
under section 5-A (2) of the Act. That was not done by the Land Acquisition
collector. Thus, the acquisition was quashed on grounds of procedure, and
the Supreme Court of India ordered that the land be returned to the original
owners within ten weeks of the judgment.
Regarding whether the acquisition satisfied the grounds of public pur-
pose, Justice Mishra relied heavily on Sooraram to justify that the acquisi-
tion served the public purpose of economic development. However, Justice
Gowda argued against the conclusion reached by the Calcutta High Court
that it was for a public purpose. Apart from the unanimous verdict of
quashing the acquisition, this challenge to the justification of public purpose
should constitute a landmark judicial intervention even though the final
verdict was not based on it.

A comparative analysis
A comparison of the two sets of cases show that while in the United States
we find a weakening of the stand expressed in Berman, in India judicial
support for acquisition for economic development has been as strong as
it was in Somavanti. The Singur judgment seems to have turned the trend
somewhat but has gone largely unnoticed, perhaps because it remains one of
the lone voices27 against the neoliberal trend of expansively defining public
purpose.
While the decision was unanimous in Berman and none of the principles
enunciated were explained in detail, in Kelo it was a close 5–4 verdict arrived
at after detailed reasoning by both the majority and the dissenters. Further,
even within the majority, Justice Kennedy stated that a ‘demanding level of
scrutiny’ was required to guard against ‘the risk of undetected impermissible
favouritism of private parties’. In India, however, the judgments have been
unequivocally in favour of acquisition for economic development, and even
transfer to private parties had been made easy with the interpretation of the
 Land acquisition for economic development 187
1984 Amendment to the LAA that even a paltry sum of one rupee would
suffice the ‘public use’ requirement. The foregoing analysis attests to the
argument that the Indian courts have applied a more liberal interpretation
than their American counterparts (Ramesh and Khan 2015: 26).
The purported efficiency rationale often given by the State and held in
deference by the judiciary is that the act of acquisition often involves trans-
fer to a higher valued use. In this case, the ‘value’ involved was determined
by the neoliberal paradigm of development. Since the land losers are being
paid the market price and economic development will ultimately benefit all,
the transfer is said to be justified on equity grounds as well. It is sometimes
emphasised that the economic benefits are ‘clear and significant’ (Poletown)
or that the area was ‘sufficiently distressed’ (Kelo) without providing any
definitive benchmark. In Berman, evidence was presented that 64.3 per-
cent of the buildings in Area B were beyond repair. To the allegation that
the public benefit mentioned in Kelo was ‘vague’, the US Supreme Court
held that as long as the legislature had made the determination of benefits,
it was out of judicial scrutiny. The costs of acquisition have been ignored
by courts in both countries. Somin (2015: 78–79) notes how the economic
harm imposed by the General Motors plant in Detroit far outweighed the
economic benefits.
We find that Berman and Midkiff were taken as precedents in Kelo as
well as in Sooraram, although the contexts were very different. There was
similarity between Hathcock and Sooraram, since in both an effort was
being made to attract domestic and international investors to the region to
enhance employment and tax revenue. However, the outcomes in both the
cases were different. While in Hathcock the majority quashed the acquisi-
tion, in Sooraram the acquisition was upheld. In fact, in Sooraram, there
was no mention of Hathcock, but the majority opinion in Kelo was quoted.
Also, Justice Stevens had argued in Kelo that the risk of favouritism in
economic development takings is minimized so long as it is part of an inte-
grated plan. By this logic, the petitioners’ allegation of discrimination in
Somavanti would hold more weight than what the Supreme Court of India
was willing to concede. In Berman, the court had held that although the
plaintiff’s property was not blighted, economic development projects could
not be implemented on a piecemeal basis but would have to be conceived of
as a whole. This reasoning, which was relied upon in Kelo and Sooraram,
would effectively preclude any owner from raising objections if his land falls
within a designated comprehensive plan even if his land did not obstruct its
execution. In both the countries one finds that those who have to part with
their lands are often those with less political and economic strength.
Among the cases analysed, it was only in Hathcock that the majority held
that economic development takings do not pass constitutional muster. In
India, at the time of ratification of the Constitution, the right to property
was a fundamental right. Successive Constitutional Amendments took away
the status and eventually only Article 300A protects it by the provision that
188  Malabika Pal
property cannot be taken away without the sanction of law. In the USA,
the ‘original intent’ and ‘original meaning’ of the takings clause have been
differentiated; the former refers to the interpretation of the Constitution in
accordance with the intentions of the framers, and the latter relates to inter-
pretation according to public understanding at the time of framing (Somin
2015: 63–65). In India, there is almost complete silence on the need to bring
in constitutional limitations on economic development acquisitions. Excep-
tionally, Agarwal (2014) draws attention to the ‘original will’ of ‘India’s
founding fathers’ by putting together the constitutional debates that pre-
ceded the ratification of the Constitution.

Incorporation of Michelman’s framework

Neoliberal design of economic development enhances demoralisation
through the six sources outlined by Michelman, namely: (1) when the effi-
ciency gains are doubtful and indicate unprincipled redistribution; (2) when
losers feel they are having to take a disproportionate share of the burden;
(3) when settlement costs are low but compensation is not forthcoming;
(4) when the loss is unlikely to be recouped by benefits linked to the project;
(5) when the losers cannot expect to gain in the future from similar projects;
and (6) when they lack the political influence to do so (Michelman 1967:
1217–1218).
An examination of the reasoning employed by the majority in the cases
reveals that, except in Hathcock and Singur, all concentrated on the effi-
ciency aspect only. The concept of economic development is much broader
than just increase in tax revenue, generating employment, or incidental
economic benefits which are captured by the narrower term of economic
growth. Since the public purpose of economic development mostly has been
left to legislative discretion, it becomes imperative for the legislature to
incorporate a stricter welfare standard for economic development takings
to be perceived as legitimate. Under the Michelman standard, first, those
acquisitions which are undertaken on behalf of private enterprises poten-
tially generating incidental public benefits would get ruled out because of
the huge demoralisation costs they would generate.
Second, it is important to distinguish strategic holdouts and those who
genuinely do not want to part with their property at any price. Small suc-
cessful businesses may find relocation unprofitable. Often some parcels are
left out of the purview of acquisition because of the influential nature of
the owners as with the Italian Dramatic Club in Fort Trumball (Kelo) and
actress Smt. Vijay Nirmala (Sooraram), while the land belonging to weaker
sections is attached for acquisition, creating demoralisation because of the
feeling that economic development disproportionately harms those less
influential.
Third, the calculation of settlement costs would ensure that those are fac-
tored in while considering the viability of any enterprise. Estimates of displaced
 Land acquisition for economic development 189
people who were not rehabilitated in India in the post-independence period
(1947–2000) are around 50 million (Fernandes 2004), for the USA (1953–
1980) about three million (Somin 2015). The broad interpretation given by
both Berman and Somavanti have made it easy to disregard the settlement
costs that are so crucial for any equitable resource reallocation.
Fourth, demoralisation could be reduced if eminent domain were used
only in those cases falling within ‘the instrumentality of commerce excep-
tion’ emphasised by Justice Ryan in his dissent in Poletown. There are
instances in which a consultative process yielded results so that the com-
munity was convinced that they were giving up their land for the larger
public purpose of development. The case of farmers in 100 villages in Kar-
nataka who agreed to give up their land willingly is a case in point (Aji 16
August 2015).
Fifth and finally, it is important to incorporate these demoralisation costs
in the cost-benefit analysis like SIA laid down in the RFCTLARR. There
must be transparency to ensure that the comprehensive process is carried
out in a manner so that even the less politically influential get fair com-
pensation. Fischel (1995) has rightly emphasised that Michelman’s frame-
work provides ‘an indispensable vocabulary for analysing the takings issue’.
Ignoring these costs can lead to political instability and jeopardise the very
purpose of economic development for which the land was acquired in the
first place.

Conclusion
The comparative analysis points towards balancing both efficiency and
equity for achieving holistic development. In India, it is important to look at
the nature of the development process itself. Industrial development needs
to be in consonance with agricultural development and modernisation. This
is important to reduce instances of acquisition on the grounds that agricul-
ture is no longer remunerative and that the transfer will increase value. Pro-
ductive assets need to be created which will help generate employment on a
long-term basis rather than give rise to some one-time profits for real estate
developers. It would indeed be regrettable if millions more are displaced
and private interest groups continue to dictate the acquisition process for
decades to come. India could draw lessons from the tribute Robert Post, the
dean of Yale Law School, paid Michelman for being a champion of socio-
economic rights: ‘If we had listened to Frank, we would be a kinder, gentler
nation now’ (quoted from Rice 2012).28

Notes
1 545 US 469 (2005)
2 Gonzalves (2010) and Singh (2012) are two exceptions.
3 348 US 26, 32–34 (1954)
190  Malabika Pal
4 Justice Sandra Day O’Connor in her dissenting opinion in Kelo
5 AIR 1963 SC 151
6 2016 SCC SC 885
7 684 Mich NW2d 765 (2004)
8 410 Mich 616; 304 NW2d 455 (1981)
9 The term ‘private entity’ was defined as ‘any entity other than a Government
entity or undertaking and includes a proprietorship, partnership, company, cor-
poration, non-profit organization or other entity under any law for the time
being in force’.
10 Many states have adopted the provisions of Land Ordinance, 2014. Gujarat and
Telengana have adopted it almost verbatim.
11 For a concise introduction to neoliberalism, see Steger and Roy (2010).
12 See Levien (2011).
13 Agarwal (2014: xii) warns: ‘Violation of a basic human right on a large scale
may lead to unrest that can only put a spoke in the giant wheel of India, slowing
it down, or even bringing it to a grinding halt’.
14 467 US 229 (1984)
15 Somin (2015: 135) argues: ‘The Kelo backlash led to more new state legislation
than that generated by any other Supreme Court decision in history’.
16 3 Dall. 386 1 L Ed. 648 (1978)
17 Pal (2013) has discussed these sections and the interpretation by the courts in
independent India in order to determine the compensation award in the final
verdict.
18 (1939) 41 BOMLR 725
19 1977AIR 1560, 1977 SCR (2) 633
20 AIR 1962 SC 764
21 AIR 1964 1230
22 AIR 1975 SC
23 AIR 2003 SC 7133
24 [1] Sooraram Pratap Reddy and Others; [2] Suraram Krishna Reddy and
Another; [3] V. Krishna Prasad; [4] A.L. Sadanand; [5] Malla Reddy And
Others; [2] District Collector, Land Acquisition and Others; [3] Government
of Andhra Pradesh and Others; [4] District Collector and Others 2008 (9)
SCC 552
25 Among the many landmark cases cited, two important cases which dealt with the
issue under discussion were Pandit Jhandulal & Ors vs. State of Punjab & Ors.
(1961) 2 SCR 459 and Aflatoon & Ors vs. Lieutenant Governor of Delhi & Ors
(1975) 4 SCC 285.
26 This acquisition and the protests that followed generated many academic writ-
ings. A summary is provided in Pal (2017).
27 It is important to note that there were three Supreme Court judgments in 2011
in which land acquisition was quashed on procedural grounds. They are Dev
Sharan and Others vs. State of Uttar Pradesh and Others [(2011) 4 SCC 769],
Radhey Shyam vs. State of Uttar Pradesh [(2011) 5-SCC-533], and Greater
Noida Industrial Development Authority vs. Devendrakumar and Others[(2011)
12- SCC-375].
28 Quoted from Rice, Lewis (2012), A Career of ‘Reflective Equilibrium’: Celebrat-
ing Frank Michelman. Harvard Law School Posts.

References
Agarwal, S. 2014. The Indian federalist: the original will of India’s founding fathers.
Chennai: Notion Press.
 Land acquisition for economic development 191
Aji, Sowmya. 2015, 16 August. ‘Does Karnataka’s Narasupara industrial town
offers lessons in land acquisition? Not quite’, The Economic Times, ET Bureau.
Retrieved from http://economictimes.indiatimes.com/news/politics-and-nation/
does-karnatakas-narasapura-industrial-town-offer-lessons-in-land-acquisition-
from-farmers-not-quite/articleshow/48497030.cms accessed on 10 October 2015.
Bhaduri, A. 2009. The face you were afraid to see: essays on the Indian economy.
New Delhi: Penguin Books India Limited.
Cohen, C.E. 2006. ‘Eminent domain after Kelo v city of new London: an argument
for banning economic development takings’, Harvard Journal of Law and Public
Policy, 29(2): 491–568.
Fernandes, W. 2004. ‘Rehabilitation policy for the displaced’, Economic and Politi-
cal Weekly, XXXIX(12): 1191–1193.
Fischel, W. 1995. Regulatory takings: law, economics and politics. Cambridge: Har-
vard University Press.
Gonzalves, C. 2010. ‘Judicial failure and land acquisition for corporates’, Economic
and Political Weekly, XLV(52): 37–42.
Levien, M. 2011. ‘Rationalising dispossession: the land acquisition and resettlement
bills’, Economic and Political Weekly, XLVI(11): 66–71.
Michelman, F.I. 1967. ‘Property, utility, and fairness: comments on the ethical foun-
dations of “Just Compensation” law’, Harvard Law Review, 80: 1165–1258.
Pal, M. 2013. ‘Rehabilitation of the “project affected”: eminent domain and just
compensation’, in S. Gangopadhyay and V. Santhakumar (eds.), Law and eco-
nomics, volume 2: practice (pp. 1–18). New Delhi: Sage Publications India
Pvt. Ltd.
Pal, M. 2017. ‘Land acquisition and “Fair Compensation” of the “Project Affected”-
scrutiny of the law and its interpretation’, in Anthony P. D’Costa and Achin
Chakraborty (eds.), The land question in India: state, dispossession, livelihoods
and contestation in India’s capitalist transition. Oxford: Oxford University Press.
Ramesh, J. and M.A. Khan. 2015. Legislating for justice: the making of the 2013
land acquisition law. New Delhi: Oxford University Press.
Rice, Lewis. 2012. A career of ‘reflective equilibrium’: celebrating frank Michel-
man. Harvard Law School Posts. Retrieved from https://today.law.harvard.edu/a-
career-of-reflective-equilibrium-celebrating-frank-michelman/ accessed on 28
March 2020.
Singh, Ram. 2012, 12 May. ‘Inefficiency and abuse of compulsory land acquisition:
an enquiry into the way forward’, Economic and Political Weekly, XLVII(19):
46–53.
Somin, I. 2004. ‘Overcoming Poletown: county of Wayne v. Hathcock, economic
development, takings and the future of public use’, Michigan State Law Review,
(4): 1005–1039.
Somin, I. 2009. ‘The limits of backlash: assessing the political response to Kelo’,
Minnesota Law Review, 93(6): 2100–2178.
Somin, I. 2015. The grasping hand: Kelo v city of New London and the limits of
eminent domain. Chicago: Chicago University Press.
Steger, M.B and R.K. Roy. 2010. Neoliberalism: a very short introduction. New
York: Oxford University Press.
9 Neoliberalism, environmental
protection, and regulation
of land Shiju MazhuvancheryEnvironmental protection and regulation

Shiju Mazhuvanchery

India has been a frontrunner among developing countries in the enactment

of environmental laws. From the 1970s onwards, several laws intended at
curbing pollution, conserving natural resources, and regulating technology
have been adopted. One major reason for such an interest in environmental
issues has been the commitment by top political leadership to the cause. It
was during the prime ministership of Indira Gandhi that many of these laws
were enacted. Her biographers like Frank (2001) and Ramesh (2017) have
noted her affinity towards nature and the steps that she had taken, includ-
ing the launching of Project Tiger, towards this end. Her participation in
the United Nations Conference on Human Environment in 1972 held at
Stockholm (she was one of two heads of states who attended the event) had
a ripple effect on the legislative field back home.
The legislative path that India took was not a blind imitation of the West.
From the beginning, it was made clear that environmental protection and
development had to go hand in hand. There was a clear understanding that
technological progress is necessary for alleviation of poverty and protec-
tion of the environment. In her speech at the Stockholm Conference, Indira
Gandhi was stressing this point when she said, ‘The environment cannot be
improved in conditions of poverty. Nor can poverty be eradicated without
the use of science and technology’. Though this may sound close to a neolib-
eral attitude towards environmental regulation, it is far from the truth. The
development and technological progress that she mentioned was not the one
that neoliberal ideologues propagated. In the same speech, she makes that
distinction very clear: ‘The inherent conflict is not between conservation and
development, but between environment and reckless exploitation of man
and earth in the name of efficiency’.
Judicial activism is yet another feature of Indian environmental laws,
wherein land-related concerns are selectively addressed. The head start
given by the Legislature and the Executive was carried forward by an active
judiciary. It employed many concepts like the ‘precautionary principle’, ‘pol-
luter pays principle’, ‘public trust doctrine’, etc., to ensure that the laws
were enforced in their letter and spirit. This was achieved by an expansionist
interpretation of Article 21 of the Indian Constitution that guaranteed right
 Environmental protection and regulation 193
to life and personal liberty. Holding that it was human life with dignity that
was protected under Article 21, the courts in India interpreted Article 21 to
include the right to a healthy environment. Dam and Tewary (2005) iden-
tify three distinct phases in the development of environmental jurisprudence
by the Indian judiciary. In the first phase – the creative phase – the courts
were involved in expanding the scope of fundamental rights by reading new
rights into Article 21, including the right to a clean environment. In the
second phase – the law-making phase – the courts were busy framing norms
and evolving principles for the protection of the environment. The third
phase saw the Judiciary entering the domain of the Executive and being
involved in the policy-making arena. It may be also noted here that the
Executive seems to be lacking in effective implementation of concepts men-
tioned earlier in the context of the land question. Judiciary responded to the
inaction by the Executive by devising its own implementation mechanisms
like the creation of monitoring committees (Sahu 2014). But judicial activ-
ism in the field of environmental law has been subjected to critical scrutiny
by many (Chowdhury 2014; Rosencranz and Lele 2008).
Environmental laws can be broadly divided into two categories, viz., laws
that protect the environmental media and laws that regulate activities that
may have an adverse impact on the environment. Laws that protect wet-
lands, lakes, forests, etc., are examples of the first category, whereas laws
that regulate genetically modified organisms, the nuclear industry, hazard-
ous substances, etc., are examples of the latter. Environmental laws that
regulate land fall under the first category. Indian laws view regulation of
land as an important tool for environmental protection, and many of them
contain prescriptions on land use. In developed countries, land regulation is
considered as the weakest link in environmental protection (Tarlock 2007).
This is due to the constitutional protection of private property in those juris-
dictions. But India is not constrained by these limitations as right to prop-
erty is no longer a fundamental right under the Indian Constitution. A later
part of this chapter looks at some of these laws.
The 1980s saw fundamental changes in global economic policy. US Presi-
dent Ronald Reagan and UK Prime Minister Margaret Thatcher changed
the fundamentals of the world economy by giving more importance to mar-
ket forces. This had a distinct impact on the field of regulation, especially
environmental regulation. Environmental regulation till that time was based
on a ‘command and control’ approach and contained prescriptions as to
what could be done and what could not be. This type of regulation is gradu-
ally giving way to regulations based on market instruments like cap and
trade and information-based instruments like labelling.
In this larger context, this chapter is an attempt to look at the Indian
environmental laws that affect land use, including land pollution, and how
these laws are faring in the neoliberal era of regulation. The second part of
the chapter looks at some of the laws that impose restrictions on land use
for environmental protection directly or indirectly. The third part chronicles
194  Shiju Mazhuvanchery
the change in regulatory approach towards the environment from a pre-
scriptive one to one that uses neoliberal instruments. An attempt is also
made to examine whether Indian laws are also undergoing a similar shift in
their regulatory approach. The fourth part examines the role of judiciary in
environmental regulation and sustainable development, and whether land-
related concerns are addressed, such as valuation, land use, land acquisition,
and so on. Two cases decided by two High Courts are analysed to find out
whether the judiciary is influenced by neoliberal principles like cost-benefit
analysis (CBA) and whether ‘cost’ related to land has been addressed or not.
The fifth part concludes.

Land use and environmental protection

Air, water, and soil are the three basic inter-related natural resources of the
planet. All these basic resources must be protected for the survival of life on
the planet. For the success of environmental protection initiatives, sustain-
able use of land is crucial (Tarlock 2007). Regulating land use can have a
significant impact on human health and environment. However, land-use
regulation is considered to be the weakest link in environmental law (ibid).
This is mainly due to the private ownership of land as opposed to air and
water, both of which are considered to be common property. Right to prop-
erty is considered to be an important constitutional right in many jurisdic-
tions, including the USA. But it remains a fact that State control over private
land is increasing. Zonal and planning regulations were the first to impose
restrictions on exclusive use of land by the owners (Morris 1973). The finite
nature of land and the increasing need of land both for economic develop-
ment and conservation are causing immense pressure on it. This in turn has
resulted in a three-cornered conflict. First, the owner of the land views it
as a commodity from which maximum profit must be extracted. Second,
the neighbours do not want their environment threatened by activities on
the land, thereby reducing the value of their land. Third, the community at
large has a stake in the land, in the sense that such land can be put to more
productive use such as low-income housing or open space (ibid). It is in this
contested terrain that land-use regulations must operate for the protection
of the environment.
Though constitutional protection of private property poses challenges
to the use of land regulation for environmental protection in most of the
developed world, that was not a major hindrance in the case of India. Two
reasons explain this contradiction. First, colonialism in India ensured that
there was no fundamental constitutional guarantee for the private owner-
ship of land. The State had the ultimate say in land use. The doctrine of
eminent domain enforced through various land acquisition laws gave ulti-
mate authority over land to the State. Second, even though the Constitution
adopted after independence guaranteed right to property as a fundamen-
tal right under Article 31, successive constitutional amendments diluted it.
 Environmental protection and regulation 195
These amendments ensured that private property rights were subservient to
public interest. Starting with the First Constitutional Amendment in 1951,
limits were imposed on the enjoyment of this right. The 44th Constitutional
Amendment in 1977 finally took away this fundamental right. It meant that
by the time Indian environmental laws started evolving in the 1970s, the
State did not have constitutional hurdles to overcome for imposing restric-
tions on land use. It remains a fact that Article 300A grants a constitutional
right to property. But as right to environment is recognised as a fundamental
right through judicial interpretation, any challenge on the ground of viola-
tion of right to property is bound to fail.
When one goes through the Indian laws, both environmental and oth-
erwise, several of them impose restrictions on land use for environmental
protection. Some of these laws are analysed here.

The Indian Forest Act, 1927

Environmental protection through land-use regulation has been a feature
of Indian law from British colonial time onwards. The Indian Forest Act,
1927, was undoubtedly drafted as a draconian legislation imposing absolute
State control over forests to further the commercial interests of the British
Empire. The impact of the 1927 legislation and the Acts that preceded it
on the local communities has been aptly summarised by Gadgil and Guha
(1992: 134): ‘By one stroke of the executive pen (the Act) attempted to oblit-
erate centuries of customary use by rural populations all over India’. The
1927 Act categorised forests into four types, viz., reserved forest, protected
forest, village forest, and other forests; State control gradually reducing with
each type. ‘Other forests’ were in private hands, and the Act gave power to
the State to regulate the activities in them in certain cases. Section 35 of the
Act authorised the State to regulate and prohibit certain activities such as
breaking up or clearing of land for cultivation, pasturing of cattle, and the
firing or clearing of vegetation, even in private forest land. However, this
was not a blanket power vested on the State. These prohibitions could be
imposed only if they were necessary for certain purposes mentioned in the
said section. A perusal of these purposes reveals that many of them are in
one way or the other connected with environmental protection. Protection
against storms, winds, rolling stones, floods, and avalanches; preservation
of the soil in the ridges and slopes and in the valleys or hilly tracts; preven-
tion of landslips; maintenance of water supply in springs, rivers, and tanks;
and preservation of public health are purposes that have a direct bearing on
the protection of the environment. This law considers landslides and effect
on soil, but not land aspects per se.
With the enactment of The Forest (Conservation) Act, 1980, that
imposed restrictions on the use of forest land for non-forest purposes and
‘de-notification’ of reserved forests by state governments without the prior
approval of the Central Government, has converted the 1927 Act into an
196  Shiju Mazhuvanchery
environmental protection legislation. The spate of directions given by the
Supreme Court in Godavarman Tirumulpad vs. Union of India (1997) over
a period of two decades have further consolidated the nature of this Act as
a conservation law. Seen in that light, The Indian Forest Act, 1927, and the
various other state laws that operate in many states in its place are powerful
tools available with the state governments to regulate land use for conserva-
tion purposes.

The Wildlife (Protection) Act, 1972

The Wildlife (Protection) Act, 1972, can rightly be described as independent
India’s first legislative attempt at conservation. The legislative approach to
protect wildlife adopted in this Act is twofold. By imposing a complete ban
on hunting, the Act ensures that wildlife is protected wherever it is found
(section 9). In addition to this, the Act adopts an ecosystem approach and
designates a series of protected areas where human activity is restricted. The
protected area network as provided in the Act consists of the following:
National Parks, Sanctuaries, Conservation Reserves, Community Reserves,
and Tiger Reserves. Restrictions on land use are imposed by the provisions
of the Act in these protected areas. When one goes through the provisions of
the Act, it is clear that except for Community Reserves, all other protected
areas comprise government land and as such do not affect private prop-
erty rights. However, the Indian reality is something different from what is
portrayed in the statutory provisions. Millions of people live in protected
areas and areas designated as reserved forests and protected forests under
the forest laws. Most of these people have been living there for generations,
and their continued stay in these areas is technically illegal; consequently,
their land rights are not recognised. To correct this The Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006, was enacted. This Act grants limited land rights (manage and con-
serve forest land) to the people who have been staying in these areas.

The Environment (Protection) Act, 1986

The Environment (Protection) Act, 1986 (EPA) was enacted in the wake of
the Bhopal Gas Disaster. The Act gives immense power to the Central Gov-
ernment to take any measure to protect the environment. Exercising this
power, the Central Government has issued notifications declaring certain
areas as Ecologically Sensitive Areas (ESA) or Ecologically Fragile Areas.
These notifications are issued to protect certain areas because of their envi-
ronmental importance and impose restrictions on land use such as the pro-
hibition on setting up polluting industries, use of pesticides in agriculture,
etc. Murud-Janjira1 was the first instance when the EPA route was used to
impose restrictions on land use. The Notification was issued in the back-
drop of the state government’s consideration of a proposal to set up a ship
 Environmental protection and regulation 197
repair yard in the region that could have destroyed the mangroves (Kapoor
et al. 2009). The Notification issued by the Ministry of Environment and
Forests in 1989 prohibited the location of industries in the region except
those connected with tourism. Doon Valley2 (1989), Dahanu3 (1991), Ara-
valli4 (1992), etc., are examples of such notifications imposing restrictions
on land use.
Eco-Sensitive Zones are declared by the Central Government using the
same powers under the Environment (Protection) Act, 1986. These areas
are located around the protected areas declared under the Wildlife (Protec-
tion) Act, 1972. The extent of the area varies from place to place, extending
up to a 10-kilometre radius in certain cases. These notifications typically
impose land-use restrictions in alignment with conservation objectives.
A list of prohibited and regulated activities is normally given in the Noti-
fication. Prohibited activities include mining, establishment of hazardous
industries, wood-based industries, etc. Construction activities, setting up of
hotels, etc., are regulated. In addition, state governments are required to
prepare a Zonal Master Plan for the area. Most master plans allow infra-
structure projects and change in land use that augment economic growth,
such as setting up hotels as part of eco-tourism.
Coastal Regulation Zone Notification, 2019, is another step taken under
the Environment (Protection) Act, 1986, that imposes restrictions on land
use in coastal areas. India, being one of the major coastal states, realised
the importance of protecting its coastlines from an environmental angle and
introduced this Notification as early as 1991. The Notification has been
amended many times and is one of the major tools of land-use restriction for
environmental protection. It imposes restrictions on land use on 500 metres
from the coastline (coastal regulation zone). Some of the activities prohib-
ited in the ‘coastal regulation zone’ are setting up of industries, handling of
hazardous substances, land reclamation, bunding, and disturbing the natu-
ral course of water. Coastal areas are categorised into different zones for
conservation and protection.

Master plans under town and country planning laws

Master plans are prepared for the organised and structured growth of
the cities. The Town and Country Planning Laws and the Development
Authority Laws give the statutory base for master plans. In that way these
plans impose restrictions on land use. One can see that recent master plans
give importance to environmental protection and conservation of natural
resources. The Revised Master Plan 2015 of the City of Bangalore is one
such example. Concerned about rampant construction taking place around
the lakes and surrounding areas, the master plan imposes severe restric-
tions on building activities. These restrictions are imposed in areas falling
within 30 metres around the lakes, 50 metres from the middle of the pri-
mary rajkaluves, 25 metres from the middle of secondary rajkaluves, and 15
198  Shiju Mazhuvanchery
metres in tertiary rajkaluves. Rajakaluves are stormwater drains that carry
water to the lakes. Similar restrictions can be seen in the master plan for
Hyderabad City.
The foregoing analysis shows that there are a number of environmen-
tal and other laws that impose restrictions on land use for the purpose of
environmental protection. These laws are prescriptive in nature, imposing
restrictions and prohibitions, and controlling land use. With the advent of
globalisation and liberalisation, doubts have been expressed about the util-
ity of prescriptive laws for environmental protection in general in the dis-
course on sustainable development. One can observe changes taking place
in the nature and approach of environmental regulations as a response to
these concerns. The next section is an attempt to analyse this shift in the
nature of environmental regulation from one that adopts prescription to one
that adopts market-based tools.

Neoliberalism and environmental regulation

Environmental movements and environmentalism in general have been
viewed as a counter-hegemonic struggle and as a critique of the expansionist
logic of capitalism (Tulloch and Neilson 2014). Environmental movements
in the 1970s attacked the capitalist mode of production and the culture
of consumption that fuelled it. Carson’s Silent Spring (Carson 1962) and
Club of Rome’s influential report Limits to Growth (Meadows et al. 1972)
are examples of how environmentalists viewed capitalism as posing a seri-
ous threat to the natural environment. This is true even of Indian envi-
ronmental movements. The much written-about struggle by the Narmada
Bachao Andolan is a prime example. TWAIL5 (Third World Approaches to
International Law) scholar Balakrishnan Rajagopal presents the fight by the
indigenous people in the Narmada valley as a counter-hegemonic struggle
against globalisation (Rajagopal 2005). Booker Prize winner-writer and a
familiar face of the Narmada struggle, Arundathi Roy has also presented it
as one against capitalism and the agenda of ‘development’ presented by it
(Roy 1999). Similarly, the Niyamgiri struggle by the Kondh tribals is also
seen as an opposition to the ‘neoliberal economy rut by globalization and
promoted by the state’. Many see Niyamagiri as ‘a site of resistance of forces
unleashed by capitalist neoliberal economy and the state run by upper caste
elites’ (Pandey 2017: 47). These struggles are studied by many scholars from
the perspective of land rights.6
However, a dramatic shift in this attitude happened at the global level
with the Rio Conference and its most influential concept, sustainable devel-
opment, which focuses on environment concerns that would make devel-
opment ‘sustainable’. It is argued that sustainable development neutralised
the critique of capitalism as posing a threat to ecology and effectively gave
a clean chit to it (Tulloch and Neilson 2014). This was achieved by put-
ting economic growth, eradication of poverty, and ecological integrity on
 Environmental protection and regulation 199
an equal footing and emphasising the viability of markets in environmental
protection (ibid). Thus, capitalism has become green (Colombo 2014). This
change in attitude towards capitalism and markets had its influence on envi-
ronmental policy and regulation as well. The central tenet of this new regu-
lation was assigning value to nature. Commodification of carbon through
the Kyoto Protocol was the first instance of such an approach at the inter-
national level (Swyngedouw 2010). Assigning economic value to ecosystem
services is another example of the neoliberal shift in environmental policy.
When it comes to environmental law and policy, a distinction is made
between traditional and neoliberal regulation. The traditional regulation, pre-
scriptive in nature, adopted a command and control approach. It prescribed
what could be done and what could not be done (Salzman 2013). Environ-
mental regulations of this genre set standards and imposed bans. Neoliberal
regulations, on the other hand, adopted market- and information-based
instruments to achieve environmental protection (Czarnezki and Fiedler
2016). These instruments are broadly defined as ‘instruments or regulations
that encourage behaviour through market signals rather than through explicit
directives’ (Stavins 2000: 1). In this context, it is noteworthy that capitalism
(including multinational corporations) considers ‘land’ as a factor of produc-
tion, which reinforces the argument of using land as a commodity in neolib-
eral India. Moreover, air and water pollution as a by-product of increasing
industrialisation are dealt with by pollution laws, but India has yet to enact
land pollution regulations/law.
Reagan’s presidency is credited with having heralded the neoliberal era
in environmental regulation (Czarnezki and Fiedler 2016). The mandatory
‘Regulatory Impact Assessment’ before introduction of a new regulation
was a major step towards market-based approaches. The successive Repub-
lican and Democratic presidents have followed neoliberal approaches. The
neoliberal approach to environmental regulation mainly takes two different
forms (ibid). The first one relies on market-based instruments such as cap
and trade, subsidies, taxes, etc. It is for the industry to act with these types
of instruments/options available to them. The second set of instruments is
based on information. Labelling, environmental audit reports by the indus-
try, etc., fall in this category, and it is for the society/consumer to take neces-
sary action through their purchasing decisions (Sullivan 2013).
Cost-benefit analysis (CBA) is a major policy tool in the neoliberal environ-
mental regime (Czarnezki and Fiedler 2016). In its simplest formulation, CBA
mandates that agencies should adopt regulations only when the likely benefits
exceed the likely costs, and if there are many regulatory options satisfying this
test, the one that maximises benefit should be adopted (Sunstein 2005). CBA
is projected as a model of rationality (OECD 2018) as opposed to the pre-
cautionary principle (Sunstein 2005). However, emphasising the importance
of valuation of natural resources and availability of reliable data in this type
of regulation, Czarneski and Fiedler argue that prescriptive regulation is still
required and cannot be completely ruled out (Czarnezki and Fiedler 2016).
200  Shiju Mazhuvanchery
But neoliberal regulation at any point does not mean that everything is
left to market forces and the State is completely absent from the scene. The
State must play an active role to create a ‘market’ that will facilitate envi-
ronmental protection. For this, neoliberal states are required to come out
with rules both for the institutional and for individual behavioural change
(Nikula 2017). This can be in the form of incentives and burdens. In this
way of functioning, there is negligible scope for land issues in the measures
for environment protection; neither the Judiciary nor the Executive consider
land aspects as a co-factor of environment protection, despite land being the
most valuable resource/asset.
Even at the international level, environmental governance has become
more pluralistic and transnational as a result of globalisation (Kutting
2004). Multinational corporations play an important role in this context.
The internal rules of many of these corporations deal with environmental
concerns. These internal rules force the corporations to adopt environmen-
tal standards that may be higher than what is provided for in the national
laws of the host country. There can be many reasons for inclusion of envi-
ronmentally friendly measures in their internal conduct. Global image of the
corporation can be one of them.
When it comes to Indian environmental law and policy, one is yet to
notice a definitive shift towards the neoliberal approach. But there are
signals of such a change in some of the laws and policies. The Water
(Prevention and Control of Pollution) Cess Act, 1977, introduced for the
first time incentives and deterrence as a means for controlling pollution.
The Act imposed a cess on the utilization of water by the industry, and
huge rebates were provided for those industrial establishments that took
measures for pollution control in the form of setting up treatment plants.
On the other hand, those industries that polluted water sources paid an
enhanced cess. There are many incentives in the form of subsidies that are
provided by the government for environmentally friendly products such
as installation of solar panels, etc. The mandatory rating and labelling of
certain products like air conditioners and refrigerators based on energy
efficiency under the Energy Conservation Act, 2001, is an example of
information-based instruments directed at environmental protection.
The Clean Energy Cess imposed on coal was another example of using
taxation as a means for environmental protection.7 However, no such
step is taken when it comes to land regulation. But an analysis of some
of the judicial decisions reveal that neoliberal regulatory instruments
like CBA are frequently used by the judiciary in adjudicating disputes
involving land regulations intended at protection of natural resources.
The concept of ‘sustainable development’ has become the most used tool
by the Indian judiciary when confronted with the question of environ-
ment versus development. The next section attempts to analyse two such
judgments where such an approach has been adopted.
 Environmental protection and regulation 201
Indian judiciary and neoliberal environmental regulation:
two case studies in land regulation
This part looks at whether the Indian judiciary is influenced by neoliberal
notions of environmental regulation when presented with issues relating to
restrictions on land use, including land pollution. Indian judiciary is famed
for its zeal for environmental activism. Concepts like the precautionary
principle have been invoked by the Indian Supreme Court in several cases.
For this analysis, cases wherein the issues of ‘development’ and environ-
mental protection have come in direct conflict have been taken. In both
these decisions, the question revolved around whether violations of land-use
restrictions intended at environmental protection were justified or not. Two
High Court decisions have been chosen for this analysis. The choice of High
Court decisions has been done intentionally. In the Indian context, most of
the environmental conflicts are decided (as opposed to resolved) at the local
level. The High Courts exercising writ jurisdiction and supervisory powers
under Articles 226 and 227 of the Constitution becomes the venue for the
adjudication of these disputes. This is true in many of the cases even after the
establishment of the National Green Tribunal and its regional benches. Two
decisions, one by the Goa bench of the Bombay High Court and another
by the then Andhra Pradesh High Court, are analysed here. In both these
disputes, Public Interest Litigations have been filed against mega develop-
mental projects on the grounds of adverse impact on the environment and
violation of environmental protection laws. In both these cases, objections
on the environmental front were raised on the grounds of violations of laws
that imposed land-use restrictions. These objections were rejected, and the
decisions were based on what can be described as cost-benefit analysis. The
rationale behind both these judgments was that the benefits of these projects
far outweighed the adverse impact on the environment.

Goa Foundation vs. Konkan Railway corporation

In Goa Foundation vs. Union of India (1992), the Goa Bench of the Bombay
High Court was approached to determine the apparent violations of environ-
mental protection laws in the Konkan Railway project. This 741-kilometre
rail line connects the coastal regions of the states of Maharashtra, Goa,
Karnataka, and Kerala with Mumbai. With 1,880 bridges and 91 tunnels,
the rail line passes through the Western Ghats and the coastal regions of
Goa. The Goa Foundation, an environmental action group dedicated to the
conservation of Goa’s natural environment, filed the writ petition on many
grounds. The major legal challenges were the following: an Environmental
Impact Assessment had not been conducted and environmental clearance
had not been obtained, forest clearance under the Forest (Conservation)
Act, 1980, had not been obtained, and the provisions of the Coastal Regula-
tion Zone Notification, 1991, had been violated. It may be noticed here that
202  Shiju Mazhuvanchery
the last two contentions were based on violations of land-use restrictions
imposed by environmental laws. In a short judgment, the Court rejected all
of these arguments and cleared the project. The opening lines of the judg-
ment itself reveal the attitude of the judges towards environmental protec-
tion involving mega developmental projects:

Very few people are fortunate to see their dreams fulfilled and people
residing on the west coast saw fulfilment of their dreams when the Cen-
tral Government decided to provide a broad-gauge railway line from
Bombay to Mangalore and thereafter to extend to the State of Kerala.
It was a long-standing demand of the people to improve the economic
conditions and to make accessible the hinterlands in the State of Maha-
rashtra, State of Goa and State of Karnataka.

These opening lines remind one of evangelist Matthew’s presentation of

Jesus as the long-awaited redeemer of the Israelites.8 The only difference
here is that ‘development’ is seen as the redeemer, and ‘land’ is not valued
despite being a highly valued resource. One can notice that these are the
major premises behind this judgment.
The first objection to the project was that necessary clearances had not
been obtained under the Forest (Conservation) Act, 1980. This short piece
of legislation is intended to curb the utilisation of forest land for non-forest
purposes. As per section 3 of this Act, prior approval of the Central Govern-
ment is necessary for such conversion of forest land. Popularly called ‘forest
clearance’, this permission is given by the Ministry of Environment, Forest
and Climate Change after satisfying many conditions, including compen-
satory afforestation. The court brushed aside this objection by observing
that it was the Central Government which had cleared the project, and the
Railway ministry which was executing the project was part of the Central
Government. Anyone familiar with the workings of the various ministries
in the Central Government and their functions clearly knows that project
clearance does not mean that forest clearance is also automatically given.
It may also be noted here that forests were originally in the State List of
the Constitution, thereby vesting the legislative and executive powers over
forests to the state governments. It was through the 42nd Constitutional
Amendment Act, 1976, that the item ‘forest’ was shifted from the state list
to the concurrent list, thereby conferring concurrent power to the Central
Government.
Another objection raised was based on the alleged violation of the
Coastal Regulation Zone Notification, 1991. Petitioners contended that
construction of rail lines on the ecologically fragile Khazan land violated
the Notification. Khazan lands are ‘reclaimed wetlands, salt marshes and
mangrove areas, where tidal influence is regulated by the construction of
embankments and sluice gates’ (Sonak 2014: v). These areas are now fac-
ing environmental degradation mainly because of saline intrusion, and it
 Environmental protection and regulation 203
is attributed to the socio-economic changes brought out by the process of
globalisation (Rubinoff 2011). The Court rejected the argument on the
grounds that what were prohibited under the Notification were industrial
activities and all the restrictions in the Notification had to be read in that
context. Approaching the Notification that way, construction of a railway
line was not a prohibited activity.
However, the main reasoning given by the Court for rejecting all the
objections on the environmental front was one based on a CBA. The Court
was swayed by the apparent benefits of the project to turn a blind eye to the
ecological damage of a project of such magnitude. The Court held:

(E)ven otherwise, the extent of damage is extremely negligible and a

public project of such a magnitude which is undertaken for meeting the
aspirations of the people on the west coast cannot be defeated on such
considerations. It is not open to frustrate the project of public impor-
tance to safeguard the interest of few persons. It cannot be overlooked
that while examining the grievance about adverse impact upon a small
area of 30 hectares of Khazan lands, the benefit which will be derived
by large number of people by construction of rail line cannot be brushed
aside. The Courts are bound to take into consideration the compara-
tive hardship which the people in the region will suffer by stalling the
project of great public utility. The cost of the project escalates from day
to day. . . . No development is possible without some adverse effect on
the ecology and environment, but the projects of public utility cannot
be abandoned and it is necessary to adjust the interest of the people as
well as the necessity to maintain the environment.

The underlying rationale expressed in the foregoing paragraph brings out

certain points worthy of consideration. First, in mega infrastructure projects
the decision should always be based on a CBA, which does not include valu-
ation of land as an important component. This is because a project of such
magnitude inevitably would adversely affect the environment. Second, when
one calculates the environmental costs, it is treated as the interest of a ‘few’
and the impact is negligible from the point of view of the geographical area/
land affected. Third, the Court assumes that the interest of the people lies in
‘developmental’ projects, and it must be balanced against the interest of the
few, that is, the environment. The concluding paragraph aptly summarises
this sentiment:

We hope and trust that unnecessary obstructions are not raised to the
project of such huge public utility and which will herald the prosper-
ity for the poor people on the western coast. It should be remembered
that the project of such gigantic magnitude has become available after
the people fought for over a century and the petty interest of a local
area should not defeat the project in respect of which the Central
204  Shiju Mazhuvanchery
Government has already spent a huge amount. We decline to exercise
our writ jurisdiction in such cases because the writ jurisdiction is meant
to advance the cause of justice and not to defeat exercises undertaken
by the Government for the public benefit. The machinery of the Court
should not be used for subserving the private interest or the interest of
a local area to the detriment of the public at large.

This judgment is not an isolated one. Divan and Rosencranz (2002) chroni-
cle a couple of such cases decided by the Supreme Court in which a similar
approach was adopted. The Supreme Court in those cases, including the
Narmada (2000), effectively uses the concept of ‘sustainable development’
as a balancing principle to give a go-ahead for the project. Here too, con-
sideration of the land is absent, the much discussed ‘public purpose’ and
‘eminent domain’ is linked closely to value, and limited availability of land
as a resource and consequent displacement costs are completely ignored by
the Court.

Forum for a better Hyderabad vs. Government

of Andhra Pradesh
Forum for a Better Hyderabad vs. Government of Andhra Pradesh (2003)
is a decision rendered by the High Court of undivided Andhra Pradesh.
Petitioners in this case challenged the permission granted for the construc-
tion of a new airport at Hyderabad. The challenge was on the grounds that
it was proposed to be set up in the catchment area of Himayatsagar Lake.
A Government Order issued in 1996 had prohibited the setting up of pollut-
ing industries, major hotels, residential colonies, etc., within a 10-kilometre
radius of Himayatsagar and Osmansagar lakes in the city of Hyderabad.
Petitioners argued that many parts of the new airport, including one run-
way, fell within the prohibited zone.
Discussions on the environmental laws of India often revolve around leg-
islation passed by the Union Parliament and decisions by the Supreme Court
of India. A closer look at the Constitution reveals that most of the subjects
that directly deal with the environment, such as land, water, etc., are in
the domain of states. Various state governments have adopted laws and
other regulations intended to protect the environment. Government Order
(G.O.Ms.No.111 MA dated 08.03.1996) is one such measure adopted by
the Andhra Pradesh State Government.
Himayatsagar and Osmansagar lakes are two major sources of drinking
water for the twin cities of Hyderabad and Secunderabad. These lakes had
been meeting the drinking water needs of the twin cities since the 1930s
onwards, and protection of these water sources was a priority for successive
governments. G.O. No. 50 issued in 1989 was the first attempt at regulat-
ing land use around these lakes. It was issued to protect the hydrological
regime of the catchment areas. The main restrictions imposed by this G.O.
 Environmental protection and regulation 205
were: prohibition of the interception of any inflows of water into the lakes,
removal of unauthorized check dams, prohibition of unauthorised tapping
of ground water in the catchment areas, prohibition of the construction of
anicuts, and prevention of unauthorised occupation of the land. G.O. No.
192 issued in 1994 replaced the 1989 G.O. and imposed further restrictions.
G.O. No. 192 was issued based on the Interim Report submitted by the
Expert Committee constituted by the Hyderabad Metropolitan Water Sup-
ply and Sewerage Board (HMWSSB) to monitor the quality of water in these
two lakes. The significance of this G.O. lies in the introduction of an area-
wide prohibition. The said G.O. prohibited the establishment of any pollut-
ing industries, major hotels, and residential colonies within a radius of 10
kilometres from full tank level (FTL) of the two lakes. It further mandated
that, to carry out developmental activities beyond 10 kilometres within the
catchment area, a no objection certificate (NOC) should be secured from
different agencies. G.O.Ms. No. 111.M.A. dt. 8–03–1996 was issued based
on the second report submitted by the Expert Committee. It prohibited pol-
luting industries within a radius of 10 kilometres both upstream and down-
stream. In addition, it imposed a complete ban on the setting up of any
industry within the prohibited zone.
The validity of this G.O. was examined by the Supreme Court in two A.P.
Pollution Control Board cases (1999 and 2000). After referring to vari-
ous studies by different agencies, the Court upheld the validity of the G.O.
The Court employed the precautionary principle in reaching its decision.
Further, the Court cautioned against granting any exemption to polluting
industries within the prohibited zone. It is in this context that permission
was granted by both the Central and State governments for the construc-
tion of a new airport, parts of which, including one runway, fell within the
prohibited zone. The court upheld the decision of the government, holding
that ‘Airport’ is not a ‘polluting industry’ and hence did not come within
the prohibition of the G.O. It completely ducked the issue relating to the
prohibition of setting up any industry within the prohibited zone. The Court
adopted a hands-off approach and observed that:

It is well-settled that this court in exercise of the jurisdiction under Arti-

cle 226 cannot sit in appeal over expert bodies as appellate authority
and give opinion unless authorities failed to discharge statutory duty
cast upon them under the relevant statutes.

Even though this judgment does not explicitly refer to the cost-benefit analy-
sis as in the Konkan Railway case, scrutiny reveals that the rationale for
both the decisions is the same. The Court mentions the need for a new
airport at Hyderabad and notes with approval the decision of the Govern-
ment to set one up: ‘It is to be noted that the Government of A.P. decided
to develop a new International Airport due to various constraints faced in
the existing Begumpet Airport and cater to the growing needs of air traffic’.
206  Shiju Mazhuvanchery
The Court also mentions the development of new airports in other cities like
Bangalore. The Court refers to the balancing principle (the same principle
adopted by the Goa Bench in the Konkan Railway case) in finally disposing
off the petition. The Court concludes:

In the circumstances, and particularly keeping in view the need to strike

a balance between the process of technological development of the soci-
ety and the Environment, we are of the view that the matter does not
warrant interference of this court in exercise of the discretionary juris-
diction under Article 226 of the Constitution of India.

An analysis of this judgment shows that the Courts are employing cost-
benefit analysis, balance test, concept of sustainable development, etc.,
when confronted with explicit prohibition contained in regulations regard-
ing land use. The underlying rationale behind such an approach is the
belief that ‘development’, the ultimate redeemer to lift millions out of pov-
erty, cannot be sacrificed at the altar of the environment. Neoliberal tools
become handy in that process. What is to be noted here is that the Courts
are deciding cases against clear prohibitions contained in the regulations.
These two judgments are not isolated examples of the judiciary swayed
by the ‘benefits’ of large infrastructure projects. As mentioned earlier, Divan
and Rosencranz (2002) analyse a couple of such cases that adopted a similar
approach. The difference in judicial approach towards large infrastructure
projects and individual pollution-related cases is noted (Upadhyay 2000). In
the former type of cases, the courts take a ‘hands-off’ approach and do not
interfere in executive actions. Worli Koliwada Nakhwa Matsya Vyavasay
Sahkari Society Ltd vs. Municipal Corporation of Greater Mumbai (2019)
recently decided by the Bombay High Court may be an exception to this
trend. In this case, a coastal road project in the city of Mumbai had to be
stopped because of illegalities in the granting of environmental clearance
and clearance under the Coastal Regulation Zone (CRZ) Notification.

Conclusion
Land-use regulation is an important component of environmental law.
Unlike air and water, the other two basic natural resources that are subject
to common ownership, land held under private ownership presents legal
hurdles in regulation. This has been particularly evident in many developed
countries because of the constitutional protection of private property. How-
ever, in India this is not the case because of the subjection of right to property
to public interest in the constitutional framework. Thus, there are several
laws both at the national and local levels which impose restrictions on land
use with an aim to protect the environment. These laws protect coastal areas
to the hilly regions and forests from the pressures of development.
Neoliberal tenets have influenced the way in which regulations are
shaped in the past two to three decades in all realms of life. The field of
 Environmental protection and regulation 207
environmental regulation has not been an exception. Prescriptive regulation
in the form of prohibitions and standards is giving way to market-based
instruments such as cost-benefit analysis and cap and trade. Information-
based instruments like labelling and audit reports are also used as regula-
tory tools. This in a way is putting the onus of environmental protection on
individuals by forcing them to alter their purchase decisions. In the larger
framework, concepts like sustainable development have helped capital-
ism to co-opt environmental protection, thus making it in turn ethical and
green, which undermines the importance of land. As such, land is an essen-
tial, limitedly available resource, but capitalism considers it as a factor of
production, that is, merely a commodity.
A unique feature of Indian environmental jurisprudence is the active
involvement of the judiciary in environmental protection. The Indian judici-
ary has adorned many mantles in its zeal for environmental protection. Pub-
lic educator, policy maker, super administrator, etc., are some of the roles
that judiciary plays in environmental matters. But a very different picture
emerges when one analyses the role of the Courts in ‘developmental’ pro-
jects. As demonstrated in the two judgments discussed previously, neoliberal
instruments like CBA comes to the rescue of the Court in condoning viola-
tion of land-use regulations, including land pollution, valuation of land,
and absence of a land governance mechanism. Thus, it can be concluded
that neoliberal precepts are yet to find a foothold in environmental and
land laws in India. Especially, land-use regulations are still couched in a
prescriptive language of prohibitions and restrictions. It is through judicial
decisions that these concepts are entering into environmental jurisprudence;
the Legislature and the Executive have yet to comprehend the need for land
protection through effective land governance.
But even when the courts are using neoliberal tools like cost-benefit analy-
sis and sustainable development, the value of the environment and particu-
larly that of land is not adequately appreciated. The environmental value
of land depends on several parameters. The ecosystem services provided
by wetlands and forests are not taken into consideration in the cost-benefit
analysis employed by the judiciary. On the other hand, as was demonstrated
in the Konkan Railway case, the environmental value of land was reduced to
that of the interest of a few environmentalists and the benefit derived from
the project as that of the entire population. Even cases decided in recent
years such as the Kudankulam9 judgment demonstrate a similar approach.
Such an approach by the judiciary raises serious questions about the viabil-
ity of neoliberal tools in the adjudication of environmental disputes, espe-
cially those involving land-use regulation.

Notes
1 Murud–Janjira is a coastal village in Maharashtra famous for its seventeenth-
century fort. The proposal to set up a ship repair yard was met with stiff opposition
by environmentalists. They objected to the large-scale destruction of mangroves
208  Shiju Mazhuvanchery
around the island. The Central Government decided to protect the area by impos-
ing restrictions on land use, including setting up of industries.
2 Located in the state of Uttarakhand, Doon Valley’s ecological significance is very
high, with Rajaji National Park being part of it. Rampant limestone mining rang
alarm bells for the valley that led to a series of protests finally culminating in the
issuance of the Notification. The 1989 Notification imposed restrictions on loca-
tion of industries, mining, tourism, grazing, and land use.
3 The proposal to set up a thermal power plant in this coastal city of Maharashtra
led to protests and issuance of the Ecologically Sensitive Area notification. Restric-
tions were imposed on change in land use and setting up of hazardous industries
by the Notification.
4 The Aravallis is a range of mountains that runs through the western states of
Rajasthan and Haryana. Developmental activities taking place in the mountain
ranges led to the issuance of the Ecologically Sensitive Area notification.
5 TWAIL can be broadly defined as a methodology to understand the history, pro-
cesses, and institutions of international law from a Third World perspective. For
more, see: Chimni (2006).
6 See: Bhagat-Ganguly (2016) for details.
7 Both these taxes, water cess and clean energy cess, have been abolished by the
introduction of the Goods and Service Tax in 2007.
8 ‘The people living in darkness have seen a great light; on those living in the land
of the shadow of death a light has dawned’ (New Revised Standard Version, Mat-
thew 4: 16). Those who are interested in eco-theology may note that these verses
were written by the evangelist as a fulfilment of the prophesy of Isaiah. And the
irony lies in the fact that Isaiah is often seen as a prophet who spoke about the
environment and the need to protect it (Leal 2006: 128–133).
9 Sundarrajan vs. Union of India (2013)

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Index

Note: page numbers in bold indicate a table.

absentee landlordism 77 143n5, 143nn9 – 10; Aka tribals 132;

accumulation by dispossession 78, 101 Nyishi and Galo tribes 132
Adivasi 2, 5, 75 – 76, 92 – 93, 167 – 168, Asami-Shikmi 39 – 43, 53 – 55, 57 – 58,
176; see also scheduled, Scheduled 60 – 61, 65 – 68, 93n6, 93nn16 – 17,
Tribes (STs) 143n9, 179 – 180, 204, 206, 208
affordable housing 57, 174 Assam 79, 93n6, 93nn16 – 17, 127 – 128,
afforestation 1, 4, 80, 82, 86, 88, 129 – 130, 131 – 133, 137, 143n9;
90 – 91, 142, 202 agricultural land 133; business land
agricultural land 2, 4, 9, 44, 133; industrial land 133
19nn24 – 25, 46n8, 94n19, 100, Assam Land and Revenue Regulation
106 – 107, 116, 131 – 133, 161 – 162 Act of 1886 132
agriculture question 17n1; capital 17n1; Atal Mission for Rejuvenation and
labour 17n1 Urban Transformation (AMRUT) 53,
Amaravati 55, 67 60, 70n26
AMRUT see Atal Mission for
Rejuvenation and Urban benefits of crop insurance 107 – 108
Transformation (AMRUT) Bhaduri, Amit 175 – 176
Andhra Pradesh Capital Region Bhoomi Rashi 15, 21n37
Development Authority Act, 2014 biodiversity 84 – 85, 90, 127, 129 – 130,
(APCRDA Act) 55, 57, 67 138 – 139
Andhra Pradesh Capital Region Bombay Small Holders Relief Act, 1938
Development Authority (APCRDA) 55 105
APCRDA Act see Andhra Pradesh Bombay Vidarbha Region Agricultural
Capital Region Development Tenants (Protection from Eviction
Authority Act, 2014 (APCRDA Act) and Amendment of Tenancy Laws)
Apsinga village 109, 110, 111 – 113, Ordinance, 1957 105
114 – 117 BRTS see Transit-oriented development
areas 33, 76 – 77, 90, 93 – 94, 129, 138, (TOD), bus rapid transit system
143, 162, 167, 196; rural 2, 36, (BRTS)
39 – 40, 42 – 43, 45, 52, 104, 128, bus rapid transit system (BRTS) 57
163, 174; urban 10, 13, 27, 31 – 37,
39 – 43, 46, 47n13, 52 – 53, 58, CAFA see Compensatory Afforestation
65 – 66, 68n2, 163, 174 Fund Act, 2016 (CAFA)
Arunachal Pradesh 92n5, 93n17, capitalism 16, 198, 199, 207
127 – 128, 130, 131 – 132, 137, CBA see Cost-benefit analysis (CBA)
212 Index
CCI see The Competition Act, 2002 181 – 184, 188 – 189, 190n17; just
(Competition Act) compensation 16, 163, 172, 178
Chakravorty, Sanjoy 10, 18, 159, 164; compensatory afforestation 80, 86,
giving state 10; land market 10; land 90 – 91, 202
value 164; taking state 10 Compensatory Afforestation Fund Act,
Chatterjee, Partha 7 – 8, 19n21; civil 2016 (CAFA) 4, 82, 90 – 91
society 8; passive revolution 7; Competition Act, 2002 (Competition
political society 8 Act) 65 – 66
city 10, 35, 39, 53, 55, 60, 68, 70, 115, Competition Commission of India
118 – 119, 172 – 173, 197 – 198, 204, (CCI) 65, 72n42, 72n44
206; extension 61; infrastructure 5, concealed tenancy 103, 106
53 – 55, 57 – 58, 60, 66, 71n27; master conclusive land title 36
plan 41, 57 – 58; reclassifying zone consent 52, 57, 67, 84 – 85, 87 – 89, 157,
57; Smart City Mission 53, 60 166, 174 – 175
city renewal 61, 67 – 68 conservation 1, 4, 14 – 15, 21, 77,
Civil Court 28, 38, 62, 108, 154 80 – 81, 83 – 84, 88 – 91, 94 – 96, 129,
Coastal Regulation Zone Notification, 136 – 139, 141 – 142, 192, 194 – 197,
1991 201 – 202 200 – 202; conservationist 82, 91, 96;
coercive conservation 138 natural resource 14 – 15, 129, 142
coercive redistribution 176 wildlife 80 – 81, 86, 96n59, 128,
collective action 6, 7, 20n34; see also 137 – 138, 140, 196 – 197
Protests, Resistance Constitutional Federalism 13
colonial laws 15, 155, 158; Act II of constitutional right 3, 179, 194 – 195
1861 153; Act VI of 1857 153; Act Constitution of India/Indian
X of 1870 154, 158; Act XXII of Constitution 2 – 3, 37, 46n8, 134,
1863 153, 158; Asami-Shikmi Act, 137, 143n4, 155, 192 – 193, 206;
1354 F 106; Bombay Small Holders 44th amendment 3, 173, 195; Article
Relief Act, 1938 105; Central 31 2, 18, 194; Article 300A 187,
Provinces Tenancy Act, 1883 105; 195; First Amendment 2, 195
Government of India Act, 1935 76, Consumer Protection Act, 1986 62,
155; Indian Councils Act, 1861 152; 72n44
Land Acquisition Act, 1894 15, 80, control 13, 18, 75 – 79, 82, 84, 92,
127, 151, 154 – 155, 157, 172, 184; 118, 130, 131 – 132, 152, 165,
Land Acquisition Amendments / 168, 193 – 195, 199 – 200, 205;
LAA amendments 3, 15 – 16, 52, collectivising 75; colonial 76, 77
151, 153 – 158, 161 – 168, 172 – 173, corporate farming 101
181 – 184, 186 – 187; Regulation I of cost-benefit analysis (CBA) 13, 16, 189,
1824 152 – 153 194, 199 – 201, 203, 205 – 207
colonisation of forest 76, 79 costs 11, 13, 15 – 16, 43, 52, 54, 57,
colourable exercise of power 166, 173, 59, 63, 66, 68, 83, 91, 101 – 102,
184 – 185 114 – 121, 164 – 165, 167 – 168,
common good/public good 8 – 9, 12, 176 – 178, 181, 187 – 189, 194, 199,
19n21, 158 201, 203 – 207; input costs 114 – 115
common property resource 123n13 credit facility 5, 40, 103, 106 – 107,
community forest resource 84 – 85 119 – 121; credit scheme for landless
community forest rights 84, 90 farmers 121; joint liability groups
community resources 77, 84 (JLG) 121
compensation 2 – 5, 13, 15 – 16, 20n31, Critical Wildlife Habitat 85, 86
47n15, 52, 56, 63, 66 – 67, 68n3, crops 11, 27, 45, 67, 103, 107 – 108, 111,
85, 94, 117, 119, 133, 140, 141, 112, 115 – 117, 119 – 121, 126, 135, 162,
151, 153 – 158, 162 – 164, 166 – 167, 167, 181; cash crops 112; cropping
168n4, 172, 174, 176 – 178, patterns 112; food crops 112, 115
 Index  213
cultivation rights of tenant 107 eminent domain 2, 15, 16, 80, 167,
culture 11, 71, 130 – 131, 133, 138, 172 – 175, 177 – 181, 184 – 185, 189,
140, 142, 143n6, 198; aspirational/ 194, 204
neo-middle class 131 Energy Conservation Act, 2001 200
entrepreneurial: ethos 19n22; identity
DDA see Delhi Development Authority 9 – 10; values 8
(DDA) environmental protection 16, 192 – 202,
deeds-based registration 28 207
Delhi 31, 33, 36, 39, 41 – 43, 46 – 47, environmental regulation 16, 192 – 194,
54 – 55, 58, 66 – 69, 190 198 – 199, 201, 207; market-based
Delhi Development Authority (DDA) 199, 207; neoliberal 16, 192, 199,
54 – 55, 67, 69n6 201; prescriptive 199, 207
democratisation 81, 92 Environment (Protection) Act, 1986
demoralization costs 176 – 177 196 – 197
Department of Land Resources (DoLR) EPA see Environment (Protection) Act,
16, 29 – 32, 36, 41, 43 – 44, 46 – 47, 1986
160, 168 equity 5, 19n25, 59, 61, 70nn16 – 17,
deprivation 12 – 13, 20n33, 78, 123 100, 103, 106, 120, 122, 173 – 174,
developmentalism 8 – 10, 13; politics of 176, 187, 189
8, 10, 13 estate 4, 6, 10 – 13, 15, 27, 32, 36 – 37,
development projects/works 3, 10, 13, 44 – 45, 51 – 54, 57 – 66, 68, 70 – 72,
15, 17, 77, 20n34, 21n31, 69n13, 94, 152, 176, 189
101, 187, 208; see also nation EWS see Economically weaker section
building project (EWS)
Digitisation/Digital India 3, 6, 32 – 33, executive 3 – 4, 9, 13, 17, 152, 155,
41, 46, 160 192 – 193, 195, 200, 202, 206 – 207
DILRMP see Land Modernisation
Record Programme (DILRMP) FCA see Forest (Conservation) Act,
displacement 15 – 16, 20nn32 – 33, 53, 1980 (FCA)
67, 77 – 78, 165 – 166, 172, 204 FDI see Foreign direct investment (FDI)
dispossession 12, 53, 66 – 68, 76, 78, Five Year Plans 10
101, 172, 176 foreign direct investment (FDI) 58 – 60
dispute redressal mechanism 103, 108 forest 2, 4 – 5, 7, 9, 13 – 14, 18,
District Magistrate 108 20 – 21, 69, 75 – 85, 86 – 89, 90 – 97,
diverse land use 76, 127 112, 120, 126 – 129, 130, 131 – 137,
DLF case 65, 72n44 139, 142 – 144, 193, 195 – 197,
DoLR see Department of Land 201 – 202, 206 – 207; bureaucracy
Resources (DoLR) 80, 82, 84, 90; clearance 69, 76,
Draft National Land Reforms Policy, 81, 86, 87 – 88, 96n52, 201 – 202;
2013 10 cover 80, 90 – 91, 127, 130, 134,
136; Forest Conservation Act,
East India Company (EIC) 151 – 153, 1980 (FCA) 4, 80 – 81, 85 – 87,
158, 168n1 88, 90 – 91, 95, 195, 201 – 202;
economically weaker section (EWS) 10, protected 85, 95, 196; reserved 85,
55, 67 93n7, 195 – 196; Unclassed State
economic development takings 134; village 90, 195
172 – 174, 177, 180, 187 – 188 Forest (Conservation) Act, 1980 (FCA)
eco-tourism 197 4, 80 – 81, 85 – 87, 88, 90 – 91, 95,
efficiency 9 – 10, 16, 19n25, 27, 195, 201 – 202
100 – 101, 103, 106, 120, 122, 173, forest dwellers 4, 7, 75 – 76, 80 – 82, 84,
176 – 177, 187 – 189, 192, 200 88, 90 – 92, 95n37
EIC see East India Company (EIC) forest governance 14, 81 – 82, 92
214 Index
forest land 7, 13, 80 – 82, 84 – 86, 87, Indian Forest Act, 1927 80, 89,
90, 94n22, 95n33, 95n45, 96n50, 195 – 196
131 – 132, 134, 195 – 196, 202 Indian Registration Act, 1908 (IRA) 28,
forest policy, 1988 81 46n9
forest policy, 1894 80 Indian Stamp Act, 1899 28, 34 – 35,
forest rights 4, 75, 77, 83 – 86, 87 – 89, 46n8
90 – 91, 120; community rights industrialisation 159, 165 – 166, 172,
83 – 84; individual rights 75 175, 199
Forest Rights Act (FRA) 4, 14, informal tenants 103
82 – 86, 87 – 89, 90 – 91, 93, 95, Information Technology Act, 2000 35,
96n59, 97n63; Conservation 42
4, 80; developmental rights 84; insecure tenures 106
management 86; see also Schedule Insolvency and Bankruptcy Code, 2016
Tribes and Other Traditional Forest (IBC) 64, 66, 72n36
Dwellers (Recognition of Forest IRA see Indian Registration Act, 1908
Rights) Act, 2006 (IRA)
fundamental right 2 – 3, 18n5, 187,
193 – 195 judiciary 2 – 4, 7, 10, 12 – 13, 15 – 16,
38, 44, 187, 192 – 194, 200 – 201,
Gandhi, Indira 192 206 – 207; judicial activism 2, 12,
GNIDA see Greater Noida Industrial 192 – 193; judicial adventurism 2, 12;
Development Authority (GNIDA) judicial interpretation 1 – 4, 7, 12, 17,
governance 1 – 3, 5 – 9, 12, 14, 195; tussle with Legislative 2 – 3
18n178, 33, 39, 51 – 52, 58, 70, jurisprudence 11, 15, 179, 193, 207
75 – 79, 81 – 84, 92, 115, 126 – 128,
134, 136, 138, 140, 143, 151, 159, Kamatha 109, 110, 111 – 113, 114 – 115
161, 168, 200, 207; frontiers of 75, Kashang hydroelectric project 56n50
76; good 6, 8, 18n17; hybrid 138 Kathputli colony 67 – 68
governmentality 8, 18n18 Katri 109, 110, 111 – 113, 115, 117
Gram Sabha 2, 4, 77 – 78, 84 – 86, Kelo case 16, 172 – 174, 177, 179,
87 – 89, 90, 166 185 – 188, 190n4, 190n15
Greater Noida Industrial Development Konkan Railway 201, 205 – 207
Authority (GNIDA) 165 – 166, Kudumbashree programme 100, 105,
190n27 121 – 122

Haque, Dr Tajamul 80, 102, 106 labour/labourers 4, 11, 17n2, 20n29,

Hathcock case 173, 179, 187 – 188 101, 104, 108, 110, 111 – 112,
High Courts 3, 13, 21n41, 47n10, 63, 114 – 115, 118 – 120, 124n16,
82, 91, 182 – 183, 185 – 186, 194, 162; agricultural 118; shortage of
201, 204, 206 agricultural labourers 115, 118
historical injustice 82, 84, 91, 95n37 land: acquisition 1 – 7, 10, 14 – 16,
HRIDAY 53, 60, 71n27; see also 18n16, 21n37, 27, 42, 52, 54 – 55,
National Heritage City Development 56, 57, 77 – 78, 80, 85, 100 – 101,
and Augmentation Yojana (HRIDAY) 127, 134, 141, 142 – 143, 151 – 155,
hybrid neoliberalism 14, 128, 133, 158 – 168, 172, 175, 190n27, 194;
137 – 138, 141 – 142 administration 5 – 6, 10, 16, 27, 38,
IBC see Insolvency and Bankruptcy 46; asset 1, 4, 6, 13, 200; barren and
Code, 2016 (IBC) uncultivable 112; conflicts 7, 21,
ideology 1, 8, 12, 101, 127, 151, 192; 162; developmentalism 8 – 10, 13;
economic growth 1, 7, 9 – 11, 14 – 16, different types of 5, 13, 18n16, 101;
30, 40, 51 – 53, 65, 68, 101, 138, economic growth 1, 11, 16 – 17, 40;
175 – 176, 188, 197 – 198; neoliberal economics 1, 13; estate 2, 4, 6, 10,
12, 192 15, 27, 32, 36 – 37, 44 – 45, 51 – 54,
indemnity 29 – 30, 35, 37 57 – 66, 68 – 72, 152, 176, 189; forest
 Index  215
2, 7, 13, 77, 80 – 82, 84 – 86, 87 – 88, land diversion 77 – 78, 80, 86, 87,
90 – 91, 94 – 96, 131 – 132, 134, 95n45, 167
195 – 196, 202; governance relate land governance 1, 3, 5, 7 – 8, 12, 33,
to land/ belonging 1, 3, 5, 7 – 8, 12, 39, 126, 151, 159, 161, 168, 207
33, 39, 126, 151, 159, 161, 168, Land Governance Assessment
207; identity 1, 4, 7, 43; judicial Framework (LGAF) 5 – 6
interpretation 1 – 3, 7, 12, 17, 195; land grab 5, 7, 15, 18n9, 20n31, 21n38
laws 5, 12, 18n4, 103, 207; legal land lease 14, 100 – 103, 105 – 106,
cases 13, 15; market 1, 3 – 6, 10, 13, 109, 116, 119 – 122; Land Lease
15, 18n16, 20n30, 30, 161, 167, 175; Cultivation Act, 2011 121
pasture 2, 120; Patta 56, 132; policy landless 7, 14, 52, 56, 83, 100, 102,
perspective 11; policy/policies 1, 7, 104, 106, 109 – 111, 119, 121 – 122,
10 – 12; property 6, 12; record 1, 3 – 6, 124n16, 164; farmers 104, 121
9, 12 – 13, 20n31, 27 – 33, 35 – 46, land management 2, 5, 86
100, 160, 162; record modernisation Land Modernisation Record
29 – 31, 35 – 36, 40; reform 3 – 7, Programme (DILRMP) 32, 36, 44, 47
10 – 11, 17n4, 18n4, 20, 37, 40, 101, land owner 103; gender bias in land
119 – 120; resource 21, 137; revenue ownership 128; ownership rights 45,
18, 27 – 28, 34, 37, 132 – 133, 155, 55, 62, 88, 103, 122; property card
159 – 160; rights 1, 10, 17, 31, 38, 65
47, 80, 106 – 107, 133, 160, 196, landownership and labour 111
198; socio-legal perspective 11 – 12; land pooling 5, 11, 15, 54 – 55, 61, 67,
source of livelihood 13, 76; status 10, 69n6; Andhra Pradesh 54 – 55; Delhi
13, 29 – 30, 41, 44, 46; sustainable 54; policy 54; scheme 55, 67
development 1, 16, 194; titling 1, 6, land pooling policy (LPP) 54 – 55,
11 – 12, 20, 31 – 32, 34, 36, 38 – 39, 66 – 67, 69
43; value 13, 15; wealth 1, 10, 68 land pooling scheme (LPS) 55, 57, 67
land acquisition 1 – 7, 10, 14 – 16, land question 1, 3 – 9, 11 – 12, 15 – 17,
18n16, 21n37, 27, 42, 52, 54 – 55, 17n1, 18n16, 193
56, 57, 77 – 78, 80, 85, 100 – 101, land records modernisation 29 – 32,
127, 134, 141, 142 – 143, 151 – 155, 35 – 36, 40
158 – 168, 172, 175, 190n27, land reforms 3 – 7, 10 – 11, 17n4, 18n4,
194; compulsory acquisition 67, 20n30, 37, 40, 101, 119 – 120
161, 173 – 175; Land Acquisition, land regulatory framework 53;
Rehabilitation and Resettlement Bill, regulatory reforms 51, 61, 66, 68
2011 157 land sale deed 29, 65; deeds-based 13,
Land Acquisition Act, 1894 15, 80, 27 – 28, 30; title-based 13, 27, 30,
127, 151, 154 – 155, 157, 172, 184 46n9
Land Acquisition (Amendment) Act, land titling 1, 6, 9, 11 – 12, 20,
1962 155 31 – 36, 38 – 39, 43, 46 – 47, 65;
Land Acquisition (Amendment and Andhra Pradesh (AP) Land Titling
Validation) Ordinance, 1967 156 Bill, 2019 20nn30 – 31, 34, 38,
land acquisition laws 3, 16, 100, 43, 46; Bill, 2008 9; Bill, 2011
151 – 152, 155, 158, 167 – 168, 175, 9, 33, 38, 43, 46 – 47; Rajasthan
194; evolution of 152; history of 16, Act/Rajasthan Urban Land
151 (Certification of Titles) Act, 2016
land administration 5 – 6, 10, 16, 27, 34 – 43, 47; see also Rajasthan
38, 46; United Nations Economic Urban Land (Certification of Titles)
Commission for Europe (UNECE) 5; Act, 2016
World Bank 5 – 6, 18, 31, 51, 83, 130, Land Titling Authority 33 – 35, 39
155 – 156 land titling legislation 31, 39
land aggregation 52, 54 – 55, 58 land titling system 6, 20n30, 31; curtain
land dependents 3, 6, 11 – 12, 20n29 principle 32; land title certificates
65; mirror principle 32; Torrens 13,
216 Index
27 – 29, 34 – 35, 37, 40, 44 – 45, 47, 123n6, 123nn10 – 11, 159, 201 – 202,
160 207n1, 208n3; Maharashtra
land to the tiller 4, 101, 122 Apartment Ownership Act 62;
land use 1, 3, 5 – 7, 10 – 11, 15, 18n9, Maharashtra Land Leasing Bill,
41, 45 – 46, 54, 57 – 58, 61, 69, 2017 106; Maharashtra Legislative
100, 112, 134, 161, 166, 175, 181, Assembly 100; Maharashtra Revenue
193 – 198, 201, 204, 206, 208nn1 – 3; Tribunal 108; Maharashtra Tenancy
mixed 57, 61; pattern 112, 127; and Agricultural Lands Act, 1948
statistics 100 (MTALA) 105 – 106
land use in transition 27 Maldhari (Pastoral) Community 7, 85
laws of social control 12 MALLA see Model Agricultural Land
lease arrangements 114, 116, 121; type Leasing Act, 2016 (MALLA)
of lease arrangements 114 Manipur 79, 92n5, 93n16, 94n17,
leasing in/leasing-in 102, 105 – 106, 96n50, 127 – 128, 129 – 130, 131,
109, 113, 114, 115 – 118, 120 143n9, 14311; jhum plots 131
leasing patterns 112, 113; informal Marathwada 106, 108, 110
arrangements 113 marginalisation 2, 12, 20n32, 53, 67,
Left Wing Extremism 78, 167 104, 161
legal cases 13 – 15; Berman case 173, market economy 52 – 53
177 – 181, 185 – 187, 189; DLF case market forces 12, 53, 68, 134, 193, 200
65, 72n44; Hathcock case 173, 179, mass rapid transit system (MRTS) 57
187 – 188; Kelo case 16, 172 – 174, Meghalaya 93n6, 94n17, 128, 129 – 130,
177, 179, 185 – 188, 190n4, 190n15; 131 – 133, 135, 138 – 140, 143n9,
R.L. Arora case 184; Sooraram case 143n14; Balpakram National Park 128,
185 – 188, 190n24; T.N. Godavarman 138 – 140, 144n19; raid/community
case 82, 86 land 132; rajhali (Syiem’s private land)
legal certainty 53, 62, 65 – 66 133; rykynti/private land 132
legislative 2 – 4, 7, 9 – 10, 13, 16, 31, metro rail corridors 57
33 – 34, 100, 106, 152; public policy Michelman, Frank 16, 173, 176 – 177,
4, 19n20; tussle between Judiciary 188 – 189, 190n28
and 2 – 3 Ministry of Environment, Forest and
lessee 109, 110, 121 Climate Change (MoEFCC) 83, 85,
lessor 109 86 – 89, 90, 95n31, 95n37, 95n53,
Levien, Michael 17n1, 52, 66, 68, 190n12 139, 202
LGAF see Land Governance Assessment Ministry of Rural Development 36, 157
Framework (LGAF) Ministry of Tribal Affairs (MoTA)
livelihood 4, 7, 13, 20n29, 20n33, 82 – 85, 87 – 89, 92, 93n13
66 – 68, 76 – 77, 80, 83 – 85, 100, minor forest produce 77, 84, 88,
106, 111, 118 – 119, 130, 136, 162, 95n27, 95n42
164, 167; cropping patterns 112; Mizoram 77, 79, 92n5, 93n6, 93n15,
irrigation 45, 77, 95n44, 111, 112, 94n17, 96n47, 128, 129 – 130, 131,
117, 153 136 – 137, 143nn9 – 10; chieftainship
Look East Policy of the Government of office 137; New Land Use Policy
India, 1991 79 136; Periodic Patta 132; temporary
low-density residential country homes 58 land/Patta 131
low-density residential plots 58, 69n12 Mizoram’s New Land Use Policy
LPP see land pooling policy (LPP) (NLUP) 136
LPS see land pooling scheme (LPS) Model Agricultural Land Leasing Act,
2016 (MALLA) 11
Mahalwari 80, 19nn24 – 25 modern polity 127, 130 – 131
Maharashtra 14 – 15, 33 – 34, 39, 42 – 45, MoEFCC see Ministry of Environment,
46n9, 47n13, 62 – 63, 65, 89, 96n59, Forest and Climate Change
100, 103, 105 – 110, 116, 120 – 122, (MoEFCC)
 Index  217
MoTA see Ministry of Tribal Affairs Records Modernization Programme
(MoTA) (NLRMP)
MRTS see Mass rapid transit system NLUP see Mizoram’s New Land Use
(MRTS) Policy (NLUP)
MTALA see Maharashtra, Maharashtra non-availability of labour 115, 118
Tenancy and Agricultural Lands Act, Northeast region (NER)/Northeast
1948 (MTALA) India 14, 56, 78, 92n4, 126 – 129,
mutation 9, 29, 31, 161 130, 131, 133 – 140, 141, 142, 143n3
mutual agreement 107, 116, 120
oral contracts 113, 116
Nagaland 77, 79, 92n5, 93n16, 94n17, Osmanabad 14, 108 – 110, 111, 112
96n47, 128, 129 – 130, 131, 143n9;
clan/khel land 131 Panchayat Extension to Scheduled
National Company Laws Tribunal Areas (PESA) Act, 1996 77 – 78, 84,
(NCLT) 64 88, 90, 93
National Green Tribunal (NGT) 201; Particularly Vulnerable Tribal Groups
see also NGT (PVTGs) 84, 87, 95n43
National Heritage City Development Periodic Labour Force Survey 104
and Augmentation Yojana see PESA {The Panchayats (Extension to
HRIDAY the Scheduled Areas) Act, 1996}
National Land Records Modernization 77 – 78, 84, 88, 90, 93n9, 93n12
Programme (NLRMP) 9, 16, 30 – 32, PIL see Public Interest Litigation (PIL)
35 – 36, 43 – 44, 47n14, 160; see also Planning Commission of India 1, 78,
NLRMP 126, 129, 143n7
National Sample Survey Organisation Poletown case 173, 178 – 179, 187, 189
(NSSO) 102, 104, 106 PPP model/public-private-partnership 9,
nation-building project 77; see also 52 – 54, 58, 67, 158, 166, 174
Development projects/works Presidency/Province 151 – 153,
NCLT see National Company Laws 199; Bombay 151, 153; Calcutta
Tribunal (NCLT) 151 – 152; Madras 151 – 153
Nehruvian state 176 presumptive title 28, 36, 65
neoliberal: economic model 172; era property rights 3, 6, 13, 28, 44 – 45, 68,
11, 15 – 16, 19n23, 76, 85, 119, 122, 84, 152, 155, 195 – 196
131, 151, 161, 168, 185, 193, 199; Protected Areas 21n38, 80 – 81, 85, 90,
hegemony 92; ideology 1, 8, 12, 127, 94n24, 135, 138 – 139, 196 – 197
151; mode of governance 1, 151; protests 2 – 3, 7, 13, 15, 91, 151,
neoliberalism 1, 8, 14, 51, 68n1, 75, 166 – 167, 190n26, 208nn2 – 3
92, 122, 127 – 128, 133, 137 – 138, Public Interest Litigation (PIL) 201
140 – 142, 151, 160, 166, 168, 175, public landholdings 54, 58; liquidating
190n11, 192, 198; policy package 1, urban land parcel 58
128, 151; reforms 66, 151, 159 public purpose 2 – 3, 14 – 15, 127,
NEP see New Economic Policy (NEP) 131, 153 – 155, 157 – 158, 162 – 163,
NER see Northeast region (NER)/ 165 – 167, 172 – 173, 175 – 177,
Northeast India 180 – 181, 184 – 186, 188 – 189, 204
New Economic Policy (NEP) 1, 10, public use 16, 172 – 173, 178 – 181, 187
17n2, 78 – 79 public works 15, 153
NGT see National Green Tribunal
(NGT) Rajasthan 15, 31, 33 – 34, 36, 39, 43,
NITI Aayog 1, 14, 19n24, 100 – 103, 47n12, 65, 90, 208n4; Rajasthan
121, 143n7 Urban Land (Certification of Titles)
Niyamgiri case 4, 16 Act, 2016 34, 39, 65
NLRMP 9, 16, 30 – 32, 35 – 36, 43 – 44, real estate 32, 58, 60, 62, 69, 70 – 72;
47, 160; see also National Land Real Estate Investment Trust (REIT)
218 Index
60 – 61, 70; real estate investors Constitution); Scheduled VI 143n4;
53 – 54; real estate project 32, 44 – 45, self-governing realm 76
59 – 60, 63 – 64, 68, 71n30, 72n41; SEBI see Securities and Exchange Board
Real Estate Regulatory Authority of India (SEBI)
(RERA) 32, 55, 62 – 64, 66, 71 – 72; Securities and Exchange Board of India
regulatory reform 51, 68; retrofitting (SEBI) 60 – 61, 70n15, 70nn19 – 20,
61; urban real estate 52 – 54, 57 – 58, 70n23
61 – 62, 65 – 66, 68 security of tenure 14, 101, 103, 105,
reclassification of land 10, 54 119, 122
record of rights (RoR) 28 – 29, 41, settlement costs 176 – 177, 188 – 189
44 – 45, 46n2, 107, 161 SEZ (Special Economic Zone) 4, 9 – 10,
Registration Act, 1908 34 – 35, 46n8, 13, 101, 162 – 163, 176; Act 4, 9,
65, 107 174; land 162; land required for 162;
Regulatory Impact Assessment 199 revamping 10
rehabilitation 2, 15, 27, 45, 52, 55, 57, sharecropping 102, 113, 114
67, 68n3, 84 – 85, 94n20, 151, 154, sharing arrangements 108, 114, 120
157, 165, 174 Sikkim 79, 94n17, 128, 129 – 130, 131,
RERA see real estate, Real Estate 133, 137, 143nn9 – 10; Lepcha and
Regulatory Authority (RERA) Bhutia tribe 133
resettlement 2, 15, 27, 45, 52, 55, single window clearance 58 – 59
68n3, 85, 94n20, 151, 154 – 157, singur case 4, 7, 16, 157, 159,
166, 174 162 – 164, 173, 186, 188
resistance 20n34, 39, 67, 76, 78 – 79, Smart City 53 – 60, 70n24; Smart
83, 85, 94n20, 134 – 135, 159, 198 City Mission 53, 60, 70n24; smart
Resource Rights 5, 15, 79, 84 solutions 60 – 61, 70n25
resurvey 31, 35, 43 – 44, 46n7, 47n14 social impact assessment (SIA)
return on investment (RoI) 53 157 – 158, 162, 166 – 167, 174 – 175,
revenue department 29, 32, 39, 42, 189
121, 133 social justice 3, 9, 15, 17n4, 18n7,
RFCTLARRA see The Right to Fair 20n33, 101
Compensation and Transparency in Society of Elimination of Rural Poverty
Rehabilitation and Resettlement Act Programme (SERPP) 100, 121
(RFCTLARRA) socio-economic: socio-economic
rights of tenant 102, 119, 122 aspirations 14, 52, 60, 62, 68
Right to Property 2 – 3, 187, 193 – 194, Solatium 163
195, 206 spatial records 30, 33, 41, 43 – 44
RoR see record of rights (RoR) Special Economic Zone 4, 9, 101, 162,
Rose, Nikolas 8 176; see also SEZ (Special Economic
Ryotwari 19, 79 Zone)
Special Economic Zone Act, 2005 4,
scheduled: areas 77, 93n15, 94n17, 9, 174
129, 143n4, 162 – 167 (see also special purpose vehicle (SPV) 60,,
Constitution of India/Indian 70n17
Constitution); Scheduled Castes and state: behaviour 12, 16; facilitator
the Scheduled Tribes (Prevention of 10, 52, 54, 61; ideology 8, 101;
Atrocities) Act of 1989 85; Scheduled intervention 51, 151; policies 54;
Castes (SCs) 11, 19, 96n45, 85, 109, politics 101; redistributive role
110, 123n5, 123n10; Scheduled 14, 68; regulator 52, 54; role/
District Act of 1874 76; Scheduled redistributive role 7, 10, 12, 14,
Tribes (STs) 11, 18n12, 19n27, 52 – 53, 61, 68, 101, 121 – 122, 175,
20n27, 20n36, 77 – 78, 83 – 85, 200; sustainable economic growth
92n4, 93n6, 95n45, 96nn46 – 47, 14, 52
128, 137, 158, 167, 196 (see also States (of India) 3, 6, 11, 15 – 16,
Adivasi); Scheduled V Areas 143n4 18n15, 19nn25 – 27, 20n20, 20n35,
(see also Constitution of India/Indian 31 – 33, 35 – 39, 41 – 46, 46n2,
 Index  219
46n8, 47n10, 54, 59, 62 – 63, 68, 19n26, 47, 62, 71, 101, 159,
78, 82 – 83, 92, 92n5, 93n6, 93n8, 173 – 174, 186
95n30, 96n47, 100 – 103, 105, Stockholm Conference 192
107 – 108, 116, 120, 122, 127 – 131, sub-leasing of land 103, 105 – 106, 109,
137, 143n10, 155, 157 – 161, 113, 114, 115 – 116
163 – 164, 172 – 173, 175, 180, 186, subverting democracy 85
190n10, 192, 196 – 197, 200 – 201, Sud, Nikita 1, 23
204, 208n4; Andhra Pradesh (AP) Supreme Court 3 – 4, 13, 15, 21, 28,
33 – 35, 38, 43, 46, 46n9, 54 – 55, 56, 82 – 83, 86, 90 – 92, 95 – 97, 151 – 152,
57, 67 – 68, 69n11, 90, 96, 100, 102, 156, 166, 172 – 173, 177 – 180,
121, 185, 190n24, 201, 204 – 205; 183 – 187, 190, 196, 201, 204 – 205
Assam 79, 93n6, 93nn16 – 17, survey 5 – 6, 29, 31, 33 – 39, 42 – 45,
127 – 133, 137, 143n9; Bihar 19n26, 47n12, 47nn14 – 15, 65, 69n14, 81,
39; Chhattisgarh 7, 90, 176; Goa 102, 104, 112, 133 – 134, 139 – 140
201 – 202, 206; Gujarat 15, 21n41, sustainable development 1, 7, 16, 194,
35, 42 – 44, 46n7, 47n16, 65, 116, 198, 200, 204, 206 – 207
158, 184, 190n10; Haryana 39,
42, 45, 46n2, 63 – 64, 158, 208n4; tenancy reforms 3, 7, 11, 17n4, 37, 40,
Himachal Pradesh 39, 44 – 45, 101, 103, 106; Maharashtra 105;
96n50; Jammu and Kashmir/ Model Act 14, 102, 106 – 107, 121
Jammu & Kashmir 93n16, 96n47; tenants 11, 14, 20n29, 80, 100 – 103,
Jharkhand 7, 90, 158, 164, 176; 105 – 108, 109 – 110, 112 – 122;
Karnataka 35 – 36, 39, 96n59, 189, Berar Regulation of Agricultural
201 – 202; Kerala 100 – 101, 105, Leases Act, 1951 105; Bombay
121, 201 – 202; Madhya Pradesh Vidarbha Region Agricultural
15, 90, 156, 176, 183, 185; Tenants (Protection from Eviction
Maharashtra 14, 15, 33 – 34, 39, and Amendment of Tenancy
42 – 45, 46n9, 47n13, 62 – 63, 65, Laws) Ordinance in 1957 105;
89, 96n59, 100, 103, 105 – 110, 116, demands of tenants 119; informal
120 – 122, 123n6, 123nn10 – 11, 159, 103; responsibilities of tenants
201 – 202, 207n1, 208n3; Manipur 107; reverse tenancy 11, 106;
79, 92n5, 93n16, 94n17, 96n50, rights of 102, 119, 122; socially
127 – 128, 129 – 130, 131, 143n9, marginalised 100; types of 105;
143n11; Meghalaya 93n6, 94n17, women 100
128, 129 – 130, 131 – 133, 135, tenure security 105 – 106
138 – 140, 143n9, 143n14; Mizoram tenurial rights 4, 5, 11, 83, 109
77, 79, 92n5, 93n6, 93n15, 94n17, The Assam Lushai Hills District
96n47, 128,, 136 – 137, 143nn9 – 10; (Acquisition of Chief’s Rights) Act,
Nagaland 77, 79, 92n5, 93n16, 1954 131
94n17, 96n47, 128, 129 – 130, 131, The Bombay Tenancy and Agricultural
143n9; Odisha/Orissa 18n10, 90, Lands (Vidarbha Region) Act, 1958
96, 116, 159, 176; Punjab 42, 45, 105
46n2, 47n16, 58, 69n13, 159, 173, The Competition Act, 2002
190n25; Rajasthan 15, 31, 33 – 34, (Competition Act) 65
36, 39, 43, 47n12, 65, 90, 208n4; The Draft Model Guidelines for Urban
Sikkim 79, 94n17, 129 – 130, 131, Land Policy, 2007 10
133, 137, 143nn9 – 10, 208; Tamil The Forest Policy of 1952 80
Nadu/Tamilnadu 82, 90, 96n59, The Indian Evidence Act, 1872 29, 159
158; Telangana 7, 100, 102, 105; The Land Acquisition Act, 1894 (LAA)
Tripura 79, 93n6, 93n15, 94n17, 15 – 16, 52, 80, 127, 151, 153 – 158,
128, 129 – 130, 131 – 132, 137, 161 – 168, 172 – 173, 181 – 184,
143n9, 143n13; Uttarakhand 186 – 187
208n2 ; Uttar Pradesh (UP) 19n26, The Panchayats (Extension to the
90, 154 – 155, 159, 163 – 165, 184, Scheduled Areas) Act, 1996 77,
190n27; West Bengal 11, 18n11, 93n12
220 Index
The Right to Fair Compensation and urbanisation/urbanization 6, 42, 52, 54,
Transparency in Land Acquisition, 66, 131, 134
Rehabilitation and Resettlement Urban Land Ceiling Regulation Act,
Act, 2013 (RFCTLARRA) 2, 15 – 16, 1976 (ULCRA) 19n13
18n16, 52, 55, 57, 67, 85, 94n20, urban planning 5, 27, 68; transit-
151, 153 – 158, 161 – 168, 174, 189 oriented development (TOD) 54,
The Scheduled Tribes and Other 57 – 58, 61; urban areas 10, 13, 27,
Traditional Forest Dwellers 31 – 37, 39 – 43, 46, 47nn12 – 13,
(Recognition of Forest Rights) Act, 52 – 53, 58, 65 – 66, 68n2, 163, 174;
2006 82, 96n47, 137, 196; see also urbanisable land parcels 53 – 54;
Forest Rights Act (FRA) urban land parcels 52 – 53, 58; urban
Thorat, Sukhdev 116 local bodies (ULBs) 31, 34, 38 – 40,
title 5, 13, 27 – 36, 38 – 40, 42 – 47, 57, 65, 69n14; urban middle class
53, 62 – 66, 108, 121, 132, 153; 66; urban peripheries 54, 67, 69n12;
transferable development rights 54, urban poor 14, 52 – 53, 66, 68; urban
57 real estate 52 – 54, 57 – 58, 61 – 62,
title insurance 32, 44 – 45 65 – 66, 68n2; urban real estate
T.N. Godavarman Thirumulpad case 81 commodities 52 – 54, 57 – 58, 61 – 62,
TOD see urban planning, transit- 65 – 66, 68n2; urban real estate
oriented development (TOD) market 52; urban slum dwellers 67;
Transforming the North East report urban villages 54, 58, 66
126 Uttar Pradesh (UP) 19n26, 90,
Transit-oriented development (TOD) 154 – 155, 159, 163 – 165, 184,
54, 57 – 58, 61; bus rapid transit 190n27
system (BRTS) 57; mass rapid transit
system 57 Vedanta case 4
trickle-down effect 14, 51 – 53, 65, 68 Vidarbha, Maharashtra 105 – 106
Tripura 79, 93n6, 93n15, 94n17, 128, Village Forest Management Committee
129 – 130, 131 – 132, 137, 143n9, 90
143n13; chera 132; jhum land 132, vulnerability 13, 20n33
143n13; lunga 132; nal 132
Tuljapur Taluka 109 – 110, 111, 112; Water (Prevention and Control of
Apsinga village 109, 110, 111 – 113, Pollution) Cess Act, 1977 200
114 – 117; Kamatha village 109, 110, welfare state 12, 51 – 52, 122, 158;
111 – 113, 114 – 115; Katri village common/public good 8 – 9, 12,
109, 110, 111 – 113, 115, 117 19n21, 158; redistributive state 14,
68; social justice 17
ULBs see urban planning, urban local Wildlife (Protection) Act, 1972 80, 86,
bodies (ULBs) 88, 128, 137 – 138, 140, 196 – 197
Unclassed State Forests (USF) 134 Wildlife (Protection) Act, 2006 81
ULCRA see Urban Land Ceiling women’s collectives 14, 100, 105, 109,
Regulation Act, 1976 119, 121 – 122
UNECE see United Nations Economic written lease agreement 107
Commission for Europe (UNECE)
United Nations Economic Commission Zamindari 3, 19nnn24 – 25, 79
for Europe (UNECE) 5 zonal planning 61; zonal development
plan (ZDP) 55