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Property and Land rights

By

Y.Srinivasa Rao, Principal Senior Civil Judge, Tirupati.


Introduction:—

Land rights are crucial to ensuring access to productive resources, which in turn is tremendously important for the realization of the right to food. Property rights allow people to be entrepreneurial. The security of property allows people to pursue their enterprise. One of main problems in our country is that millions of Indians lack a clear title to their land, and it is hard to establish your title even if you’ve been living on your land for years. Our History is so clear that In many cases, the titles are not recognized by the government.. This is true of the tribals and indigenous tribes living in proximity to forests. These tribals had been living on their land for centuries, but they were declared encroachers on their own land in British India. They were denied titles to their land and access to forest produce. Even after independence, the India government continued to deny forest dwellers the right to their land. Of course, recently has this historical justice been somewhat rectified, with the passing of the Forest Rights Act (2005), which seeks to recognize the land titles of the forest dwellers. Even though the act created mechanisms for the tribals to establish and validate their titles; their claims were mostly rejected by the forest officials.
Of all the private land in the world, however, nearly three quarters is estimated to be controlled by just 2.5 per cent of all landowners. Land is the main asset from which the rural poor are able to derive a livelihood. An average of 71.6 per cent of rural households in Africa, Latin America, and Western and East Asia (excluding China) are landless or near landless. Landlessness gives rise to a host of interrelated problems, including inadequate housing, lack of livelihood options, poor health, hunger, and food insecurity to acute poverty.


Land rights are crucial to ensuring access to productive resources, which in turn is tremendously important for the realization of the right to food. Property rights allow people to be entrepreneurial. The security of property allows people to pursue their enterprise. One of main problems in our country is that millions of Indians lack a clear title to their land, and it is hard to establish your title even if you’ve been living on your land for years. Our History is so clear that In many cases, the titles are not recognized by the government.. This is true of the tribals and indigenous tribes living in proximity to forests. These tribals had been living on their land for centuries, but they were declared encroachers on their own land in British India. They were denied titles to their land and access to forest produce. Even after independence, the India government continued to deny forest dwellers the right to their land. Of course, recently has this historical justice been somewhat rectified, with the passing of the Forest Rights Act (2005), which seeks to recognize the land titles of the forest dwellers. Even though the act created mechanisms for the tribals to establish and validate their titles; their claims were mostly rejected by the forest officials.
Of all the private land in the world, however, nearly three quarters is estimated to be controlled by just 2.5 per cent of all landowners. Land is the main asset from which the rural poor are able to derive a livelihood. An average of 71.6 per cent of rural households in Africa, Latin America, and Western and East Asia (excluding China) are landless or near landless. Landlessness gives rise to a host of interrelated problems, including inadequate housing, lack of livelihood options, poor health, hunger, and food insecurity to acute poverty.
Land ownership system during British Period:-
The ‘zamindari’ system prevailed in most of northern India whereby feudal lords (zamidars) became owners of large tracts of land. They had to pay fixed revenue payments to the government and so peasants became tenant farmers and had to pay rent on the land they farmed.
The ‘ryotwari’ system was followed in south and west parts of India. Individual cultivators (ryots or raiyats) were proprietors of land against revenue payments. They had rights to sub-let, mortgage and transfer land.
The ‘mahalwari system’ was a third system whereby entire villages had to pay revenue, with farmers contributing their share in proportion to their holdings.
The Indian Forest Act
land distribution under these systems became extremely
unequal.
Right to land is human right:- Access to land is very important for poverty reduction and development and it is also necessary for the realization of several social, economic, cultural, civil rights.
was passed in 1920, making all forest land
government-owned. This de-legitimised the traditional community
ownership systems in adivasi (tribal) societies
By the time of Independence in 1947, about 40% of India’s rural population was working as landless agricultural labour was potent factor
to show that
land is integrally linked with other human rights, especially the human rights to food, adequate housing, self-determination, security of the
The right to

Relevant Laws and polices relating lands in India:-
Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat Amendment) Act, 2016; The Rajasthan Land Pooling Scheme Bill, 2016; Agreement with the Ministry of Rural Development and Jan Satyagraha on Land Reform in India, 2012; Parliamentary Standing Committee Report on the Land Acquisition and Rehabilitation and Resettlement Bill, 2011; National Rehabilitation and Resettlement Policy, 2007; The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. In 2009, The United Nations Special Rapporteur on the right to food, Mr. Olivier De Schutter, issued a call to consider as a minimum a set of eleven human rights principles in the elaboration of transnational large-scale land acquisitions and leases, more commonly referred to as “land grabbing”.
The UN Declaration:- The adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly on 13 September 2007, as a triumph for justice and human dignity. The Declaration establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world’s indigenous peoples. The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and indigenous peoples.
Post-independence land reforms in India:-
In the lead up to Independence, Indian leaders promised landless and marginalised farmers that once the British left the country, there would be equal distribution of land.
India has indeed brought in many land reform legislations including:
Articles 23, 38 and 39 under the Indian Constitution – these Articles allow states to make their own Zamindari Abolition Acts, abolish Begari (free labour) and redistribute land and community resources (such as ponds, lakes and forests).
The Agricultural Land Ceiling Act – these state-wise Acts limit the maximum area that one landholder can own to minimise inequality in land ownership. All surplus land should be distributed among landless and marginal farmers.
The Forest Rights Act (2006) – this Act overrides the 1920 Indian Forest Act, allowing tribal communities and forest dwellers to apply for the rights to forest land that they have been living on and using for generations.
However, this legislation has not led to substantial progress towards equitable land distribution. Most landowners still belong to the upper castes, cultivators to the middle castes and agricultural labourers to the dalit and adivasi (tribal) socially excluded groups.


Unclear Land titles:- The Transfer of Property Act, 1882 provides that the right (or title) to an immovable property (or land) can be transferred or sold only by a registered document. Such documents are registered under the Registration Act, 1908. Therefore, in India, the registration of land or property refers to the registration of the transaction (or sale deed), and not the land title (Ministry of Rural Development, 2008). A registered sale deed is not a government guarantee of land ownership. This implies that even bonafide property transactions may not always guarantee ownership as an earlier transfer of the property could be challenged. During such transactions, the onus of checking past ownership records of a property is on the buyer, and not the registrar. To say in succinct, since no one document guarantees ownership in India, land ownership is established through various documents. These include registered sale deeds, record of rights (document with details of the property), property tax receipts, and government survey documents. Therefore, land ownership in India, as determined by various documents, is presumptive in nature, and subject to challenge.

Revenue land rights:-
There are three types of revenue land:
Common Property Resources – this is land that is used by the whole community (such as ponds, playgrounds or grazing lands). It belongs to the Gram Panchayat (local self-governance institution).
Agricultural Land – this is land that is cultivated or farmed. It is owned by individuals, who tend to be from higher castes.
Homestead Land – this is land that people live on (including their house, livestock quarters and kitchen gardens).


Various state-specific revenue land acts have been approved, including the Land Reform and Ceiling Surplus Act, which has been passed in all seven states where PACS works. This limits the maximum area that one landholder can own. The additional surplus land should be distributed by local governments to landless families. According to the draft paper of the Ninth Five-Year Plan (2007-2012),

77% of SCs and 90% of STs are either “absolute landless” or “mere landless”. Excluded communities also regularly face discrimination in accessing common property land. For example, Scheduled Caste (SC) communities may not be able to wash or collect water at the same time as higher caste communities, or may be prevented from using specific ponds or grazing areas. Illiteracy is also high within socially excluded communities and so, without help and support, it is hard for them to understand and fill out the necessary paperwork to claim their rights.

MGNREGA (the Mahatma Gandhi National Rural Employment Guarantee Act) is a government employment scheme that guarantees rural households 100 days of paid work every year doing unskilled manual labour.

Socially excluded groups face institutional and social
discrimination that often prevents them from accessing employment
opportunities. Therefore, MGNREGA is a vital livelihood option for poor households who struggle to make a living because they do not have productive farmland or marketable skills.

Problems in demanding job cards and work under MGNREGA (due to slow, unresponsive local governance systems) Being paid late or not at all
Not being included in the annual planning process to decide the works to be carried out under MGNREGA
Not being able to access the resulting assets (such as water pumps or irrigation systems)
Under this scheme, empowered communities helped to ensure that 1,243,082 assets (such as ponds, wells and roads) were built under MGNREGA to benefit socially excluded communities.

Conclusion:-

Land ownership and usage are often subject to an array of local laws and codes, making peasant farmers vulnerable to restrictions on their activities and, in some cases, evictions. Unfortunately, hundreds of millions of farmers cultivate plots that are frequently very small, and are often relegated to soils that are arid, hilly or without irrigation. The existing international “land rights” framework is poorly implemented and requires clarifications to ensure the realization of the right to food. “Farmers must not be disempowered labourers on their own land”. “Vulnerable land users must be protected by international guidelines” . “Access to Land and the Right to Food’’.
“Principles for responsible investment in agriculture” are certain measures which are to be implemented to protect the land rights of poor. Forcible land acquisition is considered to be the necessary price for economic growth and development. It is feared that if we do not resort to forcible acquisitions, large scale projects would not culminate as farmers would refuse to part with their land. The current system of land administration has its roots in colonial India. The institutions and the processes developed since have only been slightly modified. Our present system of land administration needs to be reformed substantially. Maintaining poor land records also affect future property transactions. It becomes difficult and cumbersome to access land records when data is spread across departments and has not been updated. One has to go back several years of documents, including manual records, to find any ownership claims on a piece of property. Such a process is inefficient and causes delays. However, it is significant to note that In order to improve the quality of land records, and make them more accessible, the central government implemented the National Land Records Modernization Programme (now Digital India Land Records Modernization Programme or DILRMP) in 2008. It seeks to achieve complete computerisation of the property registration process and digitisation of all land records.

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