Polavaram project and tribal rights
Development throughDismemberment of the Weak
Threat of Polavaram Project
The Kalinga Nagar incident at Orissa is a warning to all projects such as the proposed Polavaram project in Andhra Pradesh that will displace about 1,20,000 people. This article critically analyses different projects in AP, with a special emphasis on Polavaram, for which the state government has not declared any resettlement and rehabilitation policy.
N SUBBA REDDY
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protectivelaws. When once the turbulence subsides, the government slides back into its apathy.
I Diluting the Law againstLand Alienation
Let us look at the chain of past events. Sensing some trouble in the tribal tract of Srikakulam district in the late 1950s, the state government enacted a protective law, the Land Transfer Regulation (LTR) of 1959, which proscribed the transfer of tribal lands to non-tribals and provided for retrieval of tribal lands illegally acquired by the non-tribals. No doubt, it was done with all good intentions. But after passing the regulation, the government did not take any necessary steps for its enforcement during the next 10 years. In 1969, a case came up, and the high court had to point out that the regulation of 1959 could not be enforced because there were no working rules. Only then the working rules were formulated, a full 10 years after passing the 1959 law. This regulation which was first made applicable only to Andhra districts was later extended to Telengana districts in 1963, superceding an existing regulation, the Tribal Areas Regulation of Fasli 1356 which offered effective protection to the tribals against land alienation. An existing protective law was revoked and was substituted by an ineffective regulation. On the one hand, the law of 1959 alerted the non-tribals about the impending threat to their holdings in the scheduled area, and, on the other, it could offer no protection to them without the working rules during the interregnum between 1959 and 1969.
In the face of the rising tempo of revolt in the scheduled areas of Srikakulam district, the government reinforced the regulation of 1959 with stringent amendments. The amended enactment, which came to be known as LTR of 1970, provided that the non-tribals could transfer their lands only to tribals or to the government, and could not sell them to other non-tribals. It also postulated a statutory presumption that unless the contrary is proved, any land in the possession of a non-tribal in the scheduled area would be deemed to have been acquired from a tribal. But a serious lacuna in this law was that it was not given retrospective effect. When an attempt was made to apply it to a past case and the matter was challenged in the high court, the latter said that the wording of the regulation allowed only prospective application and it could not have retrospective effect.
There was a need to give retrospective effect to the regulation of 1970, particularly in view of the vacuum in the 1960s created by the absence of working rules under the regulation of 1959. Not only that a gap was left unfilled, but the government, in complete disregard of the implications of its own actions, undertook a series of legislative measures without sensing that they could work at cross-purposes. The A P Mahals (Abolition and Conversion into Ryotwari) Regulation of 1969, the A P Mutta (Abolition and Conversion into Ryotwari) Regulation of 1969 and the A PScheduled Areas Ryotwari Settlement Regulation of 1970 followed one after the other. While the purport of the LTR of 1970 was to put the legitimacy of the possession of land by non-tribals in the scheduled areas to severe test, the purport of the other three regulations was to tell the non-tribals that if they could produce some evidence to show that they were in possession of the lands in the preceding eight years, they could automatically get legal titles (‘pattas’). If we recall the legal vacuum that existed during the 1960s, we can imagine how easy it could have been for the non-tribals to assemble evidence of possession for eight years and secure the legal titles under any one of the three regulations mentioned above. What is more, there is a clause in the Scheduled Area Ryotwari Settlement Regulation, which reads: “The provisions of this Regulation
Economic and Political Weekly April 15, 2006
have overriding effect over all other Acts and Regulations”. If the government was really interested in restoring to the tribals the lands they had lost to the non-tribals, the LTR of 1970 should have been made to override all other regulations. But unfortunately it came to be overridden. If the land titles were granted to the non-tribals under any of the above three regulations, the LTR of 1970 could do nothing about it.
The story does not end there. Successive governments also passed a series of executive orders, diluting the provisions of the LTR of 1970, quite unmindful of the legal absurdity involved. I am listing four of them below:
When the legality of the above order was challenged, the high court struck it down as ultra vires saying in strong words that legislative acts or regulations could not be tampered with by executive orders. Curiously, the government did not withdraw the order, but circulated the court order to the officials concerned, leaving it to them to draw their own conclusion about the legalities as well as the government’s intentions.
A thoroughgoing attempt to water down the LTR of 1970 came in 1988. The government came to a firm decision to amend the regulation so as to permit the non-tribals to transfer their lands in the scheduled areas to other non-tribals by sale. To achieve that end, the government had to first get the amendment approved by the tribal advisory council (TAC), a statutory body under the Fifth Schedule of the Constitution. The chief minister directed the tribal welfare minister to steer the meeting of the TAC and get its endorsement for the amendment. A section of the members demurred and resisted ministerial pressure. But the government did not relent. Between December 1987 and March 1988, the TAC was convened four times for this purpose (usually it meets once in a year). When the approval of the TAC could not be obtained even in its fourth meeting, the then chief minister chose another route to put pressure on the TAC and convened a meeting of the floor leaders of all political parties on April 9, 1988 and apparently got their backing. There was a forced interruption in the government’s efforts as at about that time, the Supreme Court was seized of the constitutional validity of LTR of 1970. The judgment was delivered on July 14, 1988, upholding the regulation and its raison d’etre. This should have forced any sensible government to give up. But there was only a tactical lull to let the effect of the Supreme Court’s judgment fade away from the public mind. The fifth and the final meeting of the TAC was convened on December 23, 1988 and the members were harangued to endorse the amendment.
There were conflicting reports of the outcome of the meeting, but the chief minister announced that he had secured the approval of the majority and the regulation should be deemed to have been repealed (even without going through other constitutional formalities). Of course, the governor’s notification could not be issued because of protests and representations. But the chief minister went on announcing that the regulation was repealed, putting in a fix several well-meaning officers who were entrusted with the task of enforcing the regulation. How could a protective legislation protect the tribals if the government itself was against it? The limping progress of LTR of 1970 could be seen in the latest figures. As on October 31, 2005 the detected cases of non-tribal encroachments were about 70,000 which involved about 3,15,000 acres. But out of it, only about one lakh acre could be restored to the tribals, 35 years after the promulgation of the regulation. Over two lakh acres of disputed land are still with the non-tirbals. The stark reality that stares one in the face is that about 50 per cent of cultivable land in the scheduled areas of Andhra Pradesh is under the occupation of non-tribals. The minimum that any government has to do if it is really interested in the welfare of tribals, is to amend the LTR of 1970 so as to give it retrospective effect and to make it override other acts and regulations, besides enlarging the staff to enforce it effectively.
II Bamboozling the TribalAdvisory Council
In 2000, the government decided to open up the tribal areas for bauxite mining by a MNC located in Dubai. This drastic decision was taken unmindful of several hurdles. There was the LTR of 1970 still standing on the statute book, which prevented transfer or lease of lands in the scheduled areas to non-tribals. The Mining Act of 1957 (as amended in 1991) also prohibited granting of prospecting licence or mining lease to any non-tribal within the scheduled areas. The Supreme Court, in the Samatha case (14001-2 of 1996) declared that even the government lands in the scheduled areas could not be transferred to a nontribal. The Panchayat Act of 1996 made the consent of gram sabhas mandatory. Also there was the advice of the secretary, ministry of mines, who said that the mineral wealth in the scheduled areas could be exploited by tribal cooperatives or by a government undertaking. But undaunted, the government went about it like a Don Quixote tilting at wind mill after wind mill. The TAC was convened on May 10, 2000 to endorse the proposal to lease the lands in the scheduled area for mining, but its concurrence could not be obtained. Then the chief minister summoned the minister for tribal welfare and some other members of the council and lectured to them on the benefits of leasing the lands in the scheduled areas to a Dubai corporation, which would lead to the setting up of an aluminium factory. Then a second meeting of the TAC was convened on May 24, 2000 where the majority of members were finally bamboozled into toeing the government line. Somehow, the government could be stopped in its track by representations to the governor and threats of legal action.
III Uncertain Rehabilitation Policies
A disturbing problem in Andhra Pradesh at present is the threat of Polavaram project displacing about 1,20,000 people. It is not that irrigation projects should not be executed, but they should be carried out with the least amount of harassment and distress to the displaced persons. But here again it becomes necessary to draw the attention of the government to the unpalatable fact that rehabilitation policies in regard to project-affected persons have been unpredictable in Andhra Pradesh and have actually deteriorated since independence. A brief review of the resettlement
Economic and Political Weekly April 15, 2006 and rehabilitation policies and practices has been attempted here with the hope that the present administrators in the state would abjure the bad and emulate the good.
Surprisingly, good resettlement facilities were provided to the persons displaced by the Nizamsagar project executed between 1925 and 1931. A little over 13,000 people were shifted to neatly built resettlement centres and were given land for land compensation besides cash grants to buy agricultural implements. The Tungabhadra dam project which was started by the erstwhile Madras province in 1947, displaced the inhabitants of 65 hamlets. The resettlement process was taken up even before the dam work commenced. All farmers, including tenants were provided land in the command area. The declared motto was that the living conditions of the displaced should improve and not deteriorate after resettlement. Every family was given a constructed house.
Beginning with the Nagarjuna Sagar project, the construction of which was spread between 1957 and 1969, rehabilitation policy became diluted and the idea of bettering the lot of oustees was eschewed. Landowners were compensated with lands in diminishing ratios of the extent of land previously owned by them subject to a maximum of 12.5 acres. When the Sreerampadasagar project was started in 1964, a modified rehabilitation policy was adopted which reduced the benefits to the displaced still further. Those of the oustees who were moved to one of the resettlement centres were given each two acres of wetland or four acres of dry land. Those who moved away on their own, were given cash compensation ranging between Rs 500 and Rs 2,000. In the second phase of this project, which commenced in 1978, displacing the inhabitants of 27 hamlets, a drastic change for the worse occurred in the rehabilitation policy. Following the recommendation of the chief engineer, the government passed its order No 59 dated March 19, 1980 which did away with the idea of resettlement centres altogether and provided for only cash compensation and ex gratia payment, subject to a maximum of Rs 1,000 per family which had lost only land or only house, and Rs 5,000 per family which had lost both land and house.
The above government order set the precedent and it was followed in the case of Srisailam project (1971-81). An appraisal report on the rehabilitation of the oustees of the Srisailam project contains the following observations: “There was a wide gap between the compensation that was due and the compensation that was realised, besides a regressive class differential in the same. While large and medium farmers could get 65 per cent of the compensation due to them, the landless could get only 5.6 per cent of the compensation they were entitled to”. So is the case with a few other projects. In the case of the lower Manair dam, a study of the oustees revealed that landless persons numbering 3,162 were not paid any ex gratia amount. In the case of Singoor project, the oustees had to move from pillar to post. A study carried out in 1988-89, revealed that 61 per cent of the eligible families did not receive any compensation at all and 39 per cent received only partial compensation. Those who owned lands previously could acquire lands to the extent of only 30 per cent of what they owned earlier.
The only exception where a fairly liberal resettlement policy was adopted by the government of Andhra Pradesh in recent decades was in the case of the Telugu Ganga project which was launched in the late 1980s. At about the same time, the department of irrigation and the department of social welfare issued some well-meaning guidelines to be followed particularly in the case of tribal oustees. These cases will be referred to again at a later stage. To continue with the story of deterioration of the rehabilitation policies in Andhra Pradesh, perhaps the worst expression of insensitive disregard for the fate of projectaffected persons came in the form of a response to a circular sent by the centre.
In the year 1995, the rural development ministry of the government of India prepared an approach paper on resettling project-affected persons and elicited the opinions of the state governments. Some of the norms formulated were: (1) Land to land resettlement on the basis of one to one was the ideal. (2) Tribal communities should be resettled in the area of their choice giving them an opportunity for physical verification of the sites. (3) If land is not available, employment should be provided.
(4) If both those benefits cannot be provided, they should be given subsistence allowance on a monthly basis. (5) If an oustee has to buy land on his own to the extent previously owned, the difference between the compensation paid to him and the cost he has to pay must be borne by the government. (6) Preference to be given in allotment of shops and contracts.
The response of the Andhra Pradesh government was as follows: (1) The suggestion to provide land for land is not acceptable. (2) The state government will not get involved in the purchase of lands by the displaced persons. (3) The subsistence allowance can be paid only for six months.
The resettlement programme in connection with the Telugu Ganga project represents an attempt to conform to the above guidelines. The government’s order
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No 324 dated December 1,1989, prescribed the following norms: (1) Land to land resettlement should be provided to all the affected families subject to a maximum of five acres, (2) Homestead land should be provided to all the oustees subject to a minimum of 0.02 ha, and (3) Suitable displacement grant should be given to all people. Though not coming up to the level of the above-mentioned brochure of the ministry of environment, the norms prescribed in the case of Telugu Ganga project appear liberal compared to those followed in Andhra Pradesh in the preceding decades. One question that arises here is that if the centre can make a state to raise the standards of rehabilitation in the case of one project by insisting on certain conditions, why should it not do the same in connection with others.
Around that time, the irrigation department issued a government order Ms No145, dated June 24, 1988 which formulated some guidelines to be followed particularly in the case of tribal oustees. They include payment of full compensation before eviction, calculation of asset value on the basis of capitalised income, provision of some extent of land as far as possible, or else, employment under the project. About two years later, the social welfare department issued more or less similar guidelines in the government order No 64, dated April 18, 1990. The first clause in it, which sounds quite sanguine, reads as follows: “Whenever it is unavoidable to take up schemes involving submergence of tribal lands, rehabilitation has to be taken up on land to land basis, and if the extent of land lost by a tribal family cannot be entirely made good by alternative land, it must be ensured that some land is provided so that the family is not completely uprooted from traditional occupation.” It also recommended that employment should be provided if sufficient land cannot be provided. These are well-intentioned recommendations, but they do not really come to the level of the 1985 brochure of the environment ministry. They leave a loophole in saying that land should be provided as far as possible, because the question of possibility is often determined by the subjective considerations of the officialdom.
The administrators in Andhra Pradesh have to decide what kind of resettlement programme related to Polavaram project they would like to offer. While it is to be hoped that they would like to fit it at the upper end, there are some signs which give rise to the worst apprehensions. Everyday, there is news about Polavaram project in the media. But in all the statements of the chief minister or the irrigation minister, there not a word is said about the relocation centres chosen or the lands identified for allotment to the displaced people. The only thing that has figured in their statements is cash compensation. Medha Patkar met the irrigation minister and held discussions with him for two hours in December 2005. But as far as the reports go, the talks do not seem to have focused on the norms of resettlement and rehabilitation (The Hindu and Times of India, December 5, 2005). The minister on his part showed her the report on environmental impact and assured her that rehabilitation and compensation will be decided in consultation with the people concerned. It means that, in the minister’s view, no rehabilitation policy has yet been formulated in connection with the Polavaram project. As per the The Hindu of January 18, 2006, Medha Patkar clarified that she was shown a voluminous report on environmental impact which was different from the one shown to the locals at a public hearing in October 2005, and that nothing was shown to her on social impact which was needed.
This is surprising as no project is approved by the centre unless three kinds of reports are submitted by the state government. While the technical report is prepared by the irrigation department, the other two reports, one on environmental impact and the other on resettlement and rehabilitation are prepared by independent agencies. So it is understandable why the minister did not show the rehabilitation report to Medha Patkar and merely said that norms of rehabilitation and compensation would be finalised after consultation with the people concerned. It becomes more intriguing when one looks at it against the backdrop of the CPI(M) leader, Raghavulu’s statement, made a few weeks earlier (The Hindu, November 16, 2005) to the effect that land to land resettlement is not mentioned in the rehabilitation report submitted to the centre by the state government.
Some of the recommendations contained in the resettlement and rehabilitation report prepared by the Centre for Economic and Social Studies are given below:
backwater pressure, wave height and floodseason level were not taken into account. We have been asked to stick to a contour of 150’ and accordingly we have identified 276 hamlets. The report of the engineering department did refer to the above parameters at one place, but without calculating the likely rise of reservoir level in the upper reaches the report merely said that the additional families coming under submergence may be paid an ad hoc compensation. It would not be a proper thing to do. The engineering department should make these calculations meticulously and fix the height of the dam so that the extent of submergence does not go beyond the number of hamlets surveyed for this purpose.
Economic and Political Weekly April 15, 2006 above the compensation paid to them.
The R R report with the above recommendations had been submitted to the state government in 1996 and the approval of Polavaram project must have been sought on the basis of it. Then, it is not clear why there is no talk of resettlement centres being chosen and developed in suitable places. Doling out monetary compensation to the tribals is the worst thing that can be done to them. If the government does such a thing, it would make Andhra Pradesh an antediluvian state. It is hoped that rehabilitation of the oustees will be done in a proper manner.
But if it is not done, as it ought to be done, what is the remedy for the poor oustees who live in the scheduled area?
In consideration of all the foregoing facts, one is driven to the conclusion that the Fifth Schedule of the Constitution could not provide the necessary protection to the tribals living in the scheduled areas of Andhra Pradesh. The TAC, a statutory body constituted under the Fifth Schedule for the protection of the tribal interests, has been sometimes forced to acquiesce in doing things against tribal interests. There is one snag here. The TAC consists mostly of tribal MLAs. But a number of them are from outside the scheduled areas. So their commitment to protect the rights of the tribal inhabitants of the scheduled areas is not so strong, and is prone to waver, particularly when there is pressure from the government, This becomes more pronounced when the minister for tribal welfare himself isnot from the scheduled area. The grama sabhas and panchayats are no better placed to resist the coercive tactics of the state government. The governor might have been placed in a special position to pass regulations to protect the tribes. But several orders have been issued in the name of the governor which went against tribal interests.
The only, practical remedy under the Constitution is to bring the scheduled areas in Andhra Pradesh under the Sixth Schedule and form an autonomous administrative unit with autonomous district councils and regional councils. Thereby the tribals could have more freedom to shape their own lives. The scheduled area in Andhra Pradesh is spread over 11,595 square miles. Except for Mehboobnagar tribal belt, the other scheduled areas form a contiguous stretch in the districts of Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West Godavari, Khammam, Warangal and Adilabad. There are several other adjacent tribal villages which unfortunately have not been included in the scheduled area. A representation in this regard is pending with the central government for long. If they too are included, it forms a sizeable area. Everyone interested in the welfare of Andhra Pradesh tribes should work for this objective. It is generally seen that compared to the tribes governed by the Fifth Schedule, those living under the Sixth Schedule are more advanced in literacy and, what is more, in self-esteem. The centre cannot abnegate its obligation in the matter. 
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