POLICY RESEARCH WORKING PAPER 2124 Social Exclusion and Which factors prevent the rural poor and other soc ally Land Administration excluded groups forn havinc in Orissa India access to land In Orissa, i n Orissa, India Ida India? Robin Mearns Saurabh Sinha The World Bank South Asia Region Rural Development Sector Unit May 1999 POLICY RESEARCH WORKING PAPER 2124 Summary findings Mearns and Sinha report on the first empirical study of improve rights for the poor and reduce transaction costs its kind to examine - from the perspective of - but only if the system is transparent and the powerful transaction costs - factors that constrain access to land do not retain the leverage over settlement officers that for the rural poor and other socially excluded groups in has allowed land grabs. India. They find that: Land in Orissa may be purchased, inherited, rented * Land reform has reduced large landholdings since (leased), or - in the case of public land and the the 195Os. Medium-size farms have gained most. commons - encroached upon. Each type of transaction Formidable obstacles still prevent the poor from gaining - and the state's response, through land law and access to land. administration - has implications for poor people's * The complexity of land revenue administration in access to land. Mearns and Sinha find that: Orissa is partly the legacy of distinctly different systems, * Land markets are thin and transaction costs are which produced more or less complete and accurate land high, limiting the amount of agricultural land that records. These not-so-distant historical records can be changes hands. important in resolving contemporary land disputes. * The fragmentation of landholdings into tiny, * Orissa tried legally to abolish land-leasing. scattered plots is a brake on agricultural productivity, but Concealed tenancy persisted, with tenants having little efforts to consolidate land may discriminate against the protection under the law. rural poor. Reducing transaction costs in land markets * Women's access to and control over land, and their will help. bargaining power with their husbands about land, may * Protecting the rural poor's rights of access to be enhanced through joint land titling, a principle yet to common land requires raising public awareness and be realized in Orissa. access to information. - Land administration is viewed as a burden on the * Liberalizing land-lease markets for the rural poor state rather than a service, and land records and will help, but only if the poor are ensured access to registration systems are not coordinated. Doing so will institutional credit. This paper - a product of the Rural Development Sector Unit, South Asia Region - is part of a larger effort in the region to promote access to land and to foster more demand-driven and socially inclusive institutions in rural development. Copies of the paper are available free from the World Bank, 1818 H Street NW, Washington, DC 20433. Please contact Geraldine Burnett, room MCIO-156, telephone 202-458-2111, fax 202-522-2420, Internet address gburnett@worldbank.org. Policy Research Working Papers are also posted on the Web at http://www.worldbank.org/html/dec/Publications/ Workpapers/home.html. Robin Mearns may be contacted at rmearns@iworldbank.org. May 1999. (72 pages) The Policy Research Working Paper Series disseminates the findings of work in progress to encourage the exchange of ideas about development issues. An objective of the series is to get the findings out quickly, even if the presentations are less than fully polished. The papers carry the namies of the authors and should be cited accordingly. The findings, interpretations, and conclusions expressed in this paper are entirely those of the authors. They do not necessarily represent the view of the World Bank, its Executive Directors, or the countries they represent. Produced by the Policy Research Dissemination Center Social Exclusion and Land Administration in Orissa, India Robin Mearns & Saurabh Sinha* * The study team to Orissa (June-July 1998) comprised Robin Meams (Task Leader, SASRD), Saurabh Sinha (Poverty Research Unit, University of Sussex), and Pramodini Pradhan (Vasundhara, Bhubaneswar). The team benefited from discussions with Dr. N.C. Saxena, Secretary (Rural Development), Government of India; Mr B K Sinha, Vice-Chair, Land Reforms Unit, LBS National Academy of Administration, Mussoorie; Dr Kailash Sarap, University of Sambalpur; Dr Mamta Swain, Nabakrishna Centre for Social Sciences, Bhubaneswar; Mr Joe Madiath, Gram Vikas, Berhampur; and senior officials of Govemment of Orissa, particularly Messrs S. Sahoo, Member (Board of Revenue), J.K. Mohapatra, Secretary (Revenue), B.K. Patnaik, Secretary (Agriculture), and S.P. Thakur, Director (Welfare). Dr. K.C. Shivaramakrishnan of IDS, University of Sussex was most helpful in clarifying certain aspects of land revenue administration. TABLE OF CONTENTS SUMMARY ....... iii 1INTRODUCTION.1 1.1 BACKGROUND.1 1.2 SCOPE AND OBJECTIVES OF STUDY .1 1.3 WHY OR I SSA?.2 1.4 METHODOLOGY.2 1.5 ANALYTICAL FRAMEWORK.3 1.6 STRUCTURE OF THE REPORT.6 2 THE BACKDROP.7 2.1 ORISSA AND THE STUDY DISTRICTS.7 2.2 LAND REVENUE SYSTEMS OF OR I SSA.11 2.3 REVIEW OF EXISTING LEGISLATION GOVERNING ACCESS TO LAND IN O RISSA.12 2.4 WOMEN' S ACCESS TO LAND.15 2.5 STRUCTURE OF LAND REVENUE ADMINISTRATION IN ORISSA.1 8 2.6 CONTRIBUTION OF LAND REVENUE TO STATE INCOME.22 3. LAND SUR{VEY AND SETTLEMENT OPERATIONS ........................................23 3.1 CADASTRAL SURVEY ........................................ 23 3.2 PREPARATION OF THE RORS ........................................24 3.3 SETRLEMENT OF RENT................................................................................24 3.4 CONCLUSION .................................................................................26 4. LAND T RANSACTIONS AND STATER ................................................................................28 4.1 LAND SALE TRANSACTIONS ................................................................................28 4.1.1 Registration .................................................................................28 4.1 .2 M utation.1 ............................................................................... 4.1.3 Land records management ............................................................................... 32 4.1.4 Will reduced transaction costs facilitate land sales and increase access to land by rural poor?............................. 40 4.2. LAND FR AGM ENTATION. .............................................................................. 42 4.2.1 Extent offragmentation.42 4.2.2 Legal provisions and progress of land consolidation in Orissa.43 4.2.3 Process of consolidation.44 4.2.4 Failure of consolidation in Sam alpur.u45 4.2.5 REesistance to consolidatio n.46 4.2.6 Policy issues.48 4.3 LAND ENCROACHMENT ......................................49 4.3.1 Typology and extent of encroachments ...................................... 4.3.2 Land alienationTfrom tribal ..................................... 54 4.3.3 Legal framework and how it operates ..................................... 5 4.3.4 Conclusion.6 ..................................... 4.4 LAND TENANCY ..................................... 57 4.4.1 Extent and nature of tenancy in Orissa ..................................... 58 4.4.2 Terms of tenancy contracts ......................................59 4.4.3 Policya mplications. ..................................... 5. CONCLUSION ..................................... 63 5.1 POLICY IMPLICATIONS.3 ..................................... 5.2 STAKEHOLDER ANALYSIS .................. ................... 65 5.3 SUGGESTIONS FOR FOLLOW UP. ..................................... 66 4.24 aiur of on olda io inSa bapu ................................................................. 4 REFERENCES ......................................................................................................................................................... .69 ANNEX: DATA SOURCES AND STRATEGY FOR FIELD INVESTIGATION ........... .............................. 71 LIST OF FIGURES FIGURE 1: FRAMEWORK FOR ANALYSING GOVERNMENT'S RESPONSES TO LAND TRANSACTIONS ...................................... 5 FIGURE 2: ORISSA: DiSTRIBUnON OF HOUSEHOLD OPERATIONAL LAND HOLDINGS, 1953-54 TO 1982 ............................... 8 FIGURE 3: ORISSA: SHARE OF TOTAL OPERATED AREAS BY HOLDING SIZE, 1953-54 TO 1982 ............................................. 8 FIGURE 4: ORGANIZATIONAL CHART OF REVENUE ADMINISTRATION IN ORISSA ................................................................ 19 FIGURE 5: ORGANIZATIONAL STRUCTURE OF DEPARTMENT OF REVENUE AND EXCISE ....................................................... 21 LIST OF TABLES TABLE 1: LAND USE IN ORISSA ...................................................................................... 9 TABLE 2: MAIN PROVISIONS AND IMPACTS OF LAND LEGISLATION IN ORISSA ................................................................... 14 TABLE 3: CHANGING SHARE OF STATE REVENUE FROM DIFFERENT SOURCES .................................................................... 22 TABLE 4: DESCRIPTION OF CHARGES RELATING TO REGISTRATION OF LAND TRANSACTIONS . . 30 TABLE 5: STATE INCOME FROM LAND REGISTRATION ...................................................................................... 31 TABLE 6: LOSS OF STATE REVENUE THROUGH UNDER-VALUATION OF PROPERTY ............................................................. 34 TABLE 7: ADDITIONAL TRANSACTION COSTS IN THE LAND MARKET .................................................................................. 35 TABLE 8: SCOPE OF RESPONSIBILITIES OF REVENUE INSPECTORS ...................................................................................... 39 TABLE 9: LAND FRAGMENTATION IN ORISSA BY OPERATIONAL HOLDING SIZE ................................................................. 43 TABLE 10: PROGRESS OF LAND CONSOLIDATION IN ORISSA, 1974-98 ............................................................................... 44 TABLE 11: PROGRESS AND EXPENDITURE IN LAND CONSOLIDATION IN ORISSA, 1995-98 .................................................. 44 TABLE 12: IMPACT OF LAND CONSOLIDATION ON ONE HOLDING, SAMBALPUR DISTRICT ................................................... 46 TABLE 13: ENCROACHMENT BY LAND CATEGORY ....................................................................................... 52 TABLE 14: TYPOLOGY OF LAND TENANCY CONTRACTS IN DIFFERENT PARTS OF ORISSA ................................................... 60 TABLE 15: COMMON REASONS FOR LEASING LAND IN ORISSA ...................................................................................... 60 TABLE 16: WHO WILL BENEFIT AND HOW: STAKEHOLDER ANALYSIS ............................................................................... 67 TABLE 17: CONFLICT AND COMPLEMENTARITY IN STAKEHOLDER INTERESTS ................................................................... 68 LIST OF BOXES Box 1: DISTRICT RE-ORGANIZATION IN ORISSA ...................................................................................... 10 BOx 2: MAIN SYSTEMS OF LAND REVENUE ASSESSMENT IN ORISSA PRIOR TO INDEPENDENCE ........................................... 11 Box 3: ExTENT OF LAND REVENUE SYSTEMS IN ORISSA AT INDEPENDENCE ...................................................................... 12 Box 4: CONSTRAINS ON WOMEN'S ACCESS TO LAND ...................................................................................... 15 Box 5: WHEN CAN WOMEN HAVE LANDS REGISTERED IN THEIR OWN NAMES? ................................................................... 17 Box 6: NATURE OF OBJECTIONS AT A SETTLEMENT CAMP ...................................................... 25 Box 7: 'THEY KNOCK ON YOUR DOOR TO COLLECT BRIBES' .27 Box 8: WOULD A REDUCTION IN STAMP DUTY INCREASE STATE REVENUE? .33 BOX 9: COMPUTER-AIDED REGISTRATION ADMINISTRATION SYSTEM (CRAS) .40 Box 10: 'WE DO NOT INTEND TO MOVE': RESISTANCE TO LAND CONSOLIDATION IN LADERPALLY VILLAGE, SAMBALPUR 47 Box 11: HOW DEVELOPMENT CAN REDUCE ACCESS TO LAND .51 Box 12: OPERATION OF THE OPLE IN GANJAM DISTRICT .56 Box 13: TENANT MOTIVATIONS FOR CONCEALING TENANCY .61 ii SUMMARY This report presents an exploratory, state-level analysis in Orissa of the factors that constrain access to land by the rural poor and other socially excluded groups. It is the first empirical study of its kind, at least in India, which examines access to land from a transaction costs perspective. It is based on an institutional analysis of land administration in policy and practice, and considers the consequences for particular groups of stakeholders. The intention of this pilot study was to field-test an approach that could be replicated in other states of India, with a view to identifying incremental reforms in lasd administration and policy that could help to improve access to land for the rural poor. The findings should be regarded as preliminary, since the study was intended to scope the broad framework for analysis, rather than to produce systematic results. Nonetheless, the findings do suggest a set of broad policy implications worthy of more detailed consideration, following systematic analysis in other states. Land distribution: While land reforms legislation has reduced the share of operational area held under large holdings (> 6 ha) in Orissa since the 1950s, the major gains have been in the share of total area accounted for by medium-sized farms. Over half of all households operate small, marginal or sub-marginal land holdings (< 2 ha). The proportion of total agricultural land they operate has remained substantially unchanged since the 1950s, although substantial gains in area accrued to the largest among them during the 1960s, thereby swelling the ranks of farm households with medium-sized holdings by the 1970s. The proportion of households operating no land, whose livelihoods are based principally on agricultural labor, increased substantially following the widespread eviction of tenants from erstwhile landlord estates, and by the early 1 960s accounted for a third of all households. Since the 1960s, some have gained access to at least some land, but around a quarter of all households in Orissa still operate no land. Overall, in spite of land reforms, socio-economic and demographic change over the last half century, these trends suggest that formidable obstacles continue to prevent the rural poor from improving their access to private arable land. Land revenue systems: Historically, different parts of the state inherited different land revenue administration systems from Bengal Province (northern Orissa), Madras Presidency (southern Orissa), Central Provinces (western Orissa), and the former princely states. Some 80 percent of the total area fell under zamindari systems, in which many layers of 'intermediaries' between the landlord and cultivator were responsible for exacting land revenue. Ryotwari (peasant-proprietor) systems prevailed over parts of southern Orissa that had been under Madras Presidency. Some of the complexity of land revenue administration in Orissa today may be attributed to the legacy of these diverse systems, which were brought under a unified legislative structure only following independence. The legacies of these distinct systems also have certain lasting effects on the ground. For example, land records tend to be more complete and accurate in the former ryotwari areas in which, unlike in zamindari areas, there were village accountants. This not-so-distant historical record can be important in resolving land disputes even today, in establishing the basis for contemporary land claims. Main provisions in land legislation: Orissa is one of a few states in India that has attempted legally to abolish tenancy (land-leasing), except in the case of persons of disability (the definition of which includes widows, divorcees, and other unmarried women). Land rights may pass to any cultivator who can demonstrate continuous occupation over a period of at least 12 years ('adverse possession'). While tenancy remains widespread, these restrictions have led to concealed forms (e.g. oral contracts) which give tenants little or no protection in law. A ceiling on individual land holdings also applies, and currently stands at 10 'standard acres' (depending on land quality). In addition to these provisions, which fall under land reforms legislation, three major Acts govern land administration, and respectively provide the basis for land survey and settlement, land consolidation/ prevention of land fragmentation, and prevention of encroachment on government land. The Government of Orissa has recently prepared a draft Revenue Administration Bill, intended to simplify, consolidate and replace these separate laws governing land administration. The clause permitting the liberalization of the land-lease market remains an obstacle to the rapid enactment of-this law. iii Gender and land rights: As in other parts of South Asia, women may appear to enjoy certain land rights in law, but they rarely translate into effective control over land in practice, owing to embedded, gender-biased social norms and customs. It is suggested that women's access to and effective control over land may be enhanced through joint land titling. This measure is rather limited in scope, since ideally what need to be promoted are women's independent land rights. But while the principle of joint titling is readily accepted at the level of the Government of India, it has yet to be realized in practice in Orissa. In focus group discussions, village women assert that their bargaining power vis a vis their husbands and in-laws would be enhanced considerably by joint title over land. The common objection that this may make it more difficult for women to escape from abusive marriages was for them a second order consideration. Organization of land administration: Land administration in Orissa is carried out by two, parallel government agencies: the Department of Revenue and Excise, responsible for policy formulation and revenue collection; and the Board of Revenue, responsible for the implementation of land policy and judicial matters. Land revenue has declined as a share of state revenue from over 30 percent to less than 2 percent over the last forty years. As a result, land administration is perceived as a burden on the state, rather than a service which, if made more efficient, could potentially contribute to raising agricultural productivity. Stamp duties and other fees payable upon the registration of land sales, on the other hand, account for up to 6 percent of state revenue. There is little or no coordination between the maintenance of land records, which is the responsibility of revenue inspectors and tehsildars; and land registration, which is the responsibility of sub-registrars. Measures to coordinate these two services and enhance their efficiency through computerization, while at the same time reducing transaction costs to individuals in the land market, could go a long way towards stimulating the land market. Whether or not this would enhance access to land for the rural poor, however, depends on the degree of transparency with which land administration is conducted in practice. Access to information and public awareness of rights seem to be critical factors. A recent initiative of the Revenue Department, Government of Orissa, to disseminate a local-language 'how to' manual on matters of land transfers and access to land records, is a most welcome contribution in this area. Land survey and settlement operations: Survey and settlement operations evolved historically as a way to establish a record of rights in land, on which to base the assessment of land revenue. Periodic, revisional surveys, conducted every 25-30 years or so, serve as the major means to update land records. Since the process of mutation following an individual land sale-purchase transaction is burdensome, protracted and (for many) prohibitively expensive, many land holders prefer to wait until the next revisional survey to obtain title to their land. In practice, the survey and settlement process provides widespread opportunities for rent-seeking on the part of the govermnent officers involved, and it is not uncommon for poorer and less powerful landholders to 'lose' at least a proportion of their land in the official record. Land-grabbing by more powerful individuals, facilitated by exerting leverage over settlement officers, appears to be commonplace during survey and settlement operations. While the contested amounts of land are usually small, the net effect is systematically to discriminate against the rural poor and the socially excluded. Four types of land transaction are considered in the main analysis. Land may be purchased, inherited, rented (leased) or, in the case of commons and public land, encroached upon. Each of these types of transaction, and the state's responses through land law and administration, has particular implications for the ability of the rural poor to improve their access to land. Land sale-purchase transactions: These are estimated to account for around 80 percent of land transactions at village level, although the share of total agricultural land changing hands is typically as low as 5-7 percent per year. Land markets are thin for various reasons. In large part, there are few willing sellers of land, as the price of land does not reflect its full social value. Most sales are therefore distress sales by smaller farmers, and most purchases by larger farmers. High transaction costs in land markets are also a significant obstacle to land iv purchases. Uncertainty regarding the true ownership of the land is rarely a serious concern in the case of intra-village transactions. However, many sale-purchase transactions go unrecorded in land records, since the process of mutation (voluntary registration of a sale deed and acquisition of title) is complex, lengthy and expensive. Officially sanctioned transaction costs amount to at least 17 percent of the value of the land transacted, and the 'informal' transaction costs required to expedite the process may amount to as much again, even discounting the opportunity costs of repeated visits to registrar and tehsildar's offices over a period of several years. The computerization of land records may contribute to a reduction in these transaction costs, but only if coordinated with computerized land registration. Landfragmentation: the fragmentation of land holdings into tiny, scattered plots is a consequence of the custom of partible inheritance, in which each individual plot is subdivided among various heirs. There is thus a lifecycle effect, in which newly formed households acquire very small holdings on the subdivision of formerly joint family holdings. Land fragmentation is widely perceived to operate as a brake on agricultural productivity, and the Government of Orissa has responded by implementing a land consolidation program since 1974. Land consolidation does not contribute directly to improving access to land for the rural poor, since it aims to leave land distribution unchanged. But as in the case of survey and settlement operations, there is some evidence that land consolidation operations result in a certain amount of discrimination against the rural poor and other socially excluded groups. In spite of continuing demographic pressure, the rate of fragmentation actually declined from an average of 6.4 to 5.0 parcels per holding between 1961-62 and 1981- 82. Much of this decline took place before the impact of the land consolidation program could be observed, which suggests that a certain amount of individually initiated land consolidation takes place through the voluntary exchange of land plots in the market. Evidence from the field confirms that land fragmentation persists for two main reasons: the need to spread risk, particularly in unirrigated areas and where soil quality is more variable; and the need to hold land as a liquid asset, which may be sold off in discrete parcels to meet contingencies such as marriage or funeral costs. No data exist in Orissa on the rate of fragmentation by district or region. Findings from the field suggest that land fragmentation is perceived by farmers to be a more serious problem on the coastal plains, where land is more reliably watered and soils are more uniform in quality, than in the hill areas of western Orissa, where there has been considerable resistance to the government's land consolidation program. To the extent that both poorer and better-off farmers wish voluntarily to consolidate their holdings in the interests of raising productivity, the most effective public interventions are likely to be those that reduce transaction costs in the land market. Encroachment on comnons: The rural poor partially compensate for their lack of access to private, arable land through access to public/ common land. Commons account for an estimated 20 percent of the total land area of Orissa, including 'wastelands', grazing lands, and certain types of forest land. Over recent decades, the best quality common land has been encroached upon by both resource-poor and resource-rich farmers, and what remains is frequently too degraded to be of significant value. Legislation exists to prevent encroachment on government-owned 'wastelands', and to transfer a up to an acre of 'unobjectionable' public land to landless families, but is largely ineffective on both counts. There are powerful incentives for revenue inspectors to take bribes from encroachers to permit continued cultivation, rather than to initiate eviction proceedings. More powerful individuals may thereby acquire permanent occupancy rights through 'adverse possession'. While the rural poor also acquire defacto but insecure rights over revenue wastelands through encroachment, they are often unable to convert them to the de jure rights to which they are legally entitled, since the act of encroachment is regarded as illegal in the first instance. Access to commons is especially important in the livelihoods of the 22 percent of Orissa's total population who live in 'scheduled' tribal areas. In spite of legal restrictions on transfers of land owned by people of scheduled tribes to non-tribal people, land alienation from indebted tribal families remains a persistent problem. v The most promising avenues for protecting rights of access to common land for the rural poor are through efforts to raise public awareness and access to information. Some NGOs in Orissa have been successful in pursuing public interest litigation to defend tribal land rights. Following their lead, the strengthening of local panchayats could make a vital contribution towards promoting the watchdog function of civil society institutions. Only with strong civil society institutions will there be effective demand from below for accountability within the lower levels of land revenue administration, thereby limiting the possibilities for evasion of the legislation designed to prevent encroachment on commons. With such safeguards in place, the computerization of land records at tehsil level would also contribute towards making information on the extent of encroachment more publicly accessible. Land leasing (tenancy): The Orissa Land Reforms Act prohibits sub-letting of land, regulates rents (to a maximum of one quarter of gross produce), and grants occupancy rights to long-standing tenants. In spite of these restrictions, tenancy remains widely prevalent, under 'illegal' contracts which landlords and tenants have a common interest in concealing. This accounts for widespread under-reporting of the area leased-out (and, to a lesser extent, leased-in). The best available estimates suggest that on average, around 20 percent of farm households participate in the land-lease market, and that over 80 percent of leasing activity (both in and out) is by small and marginal farmers. There is wide inter- and intra-regional variation in both leasing activity and the terms of tenancy contracts. Sharecropping is the predominant form of tenancy contract in Orissa, accounting for perhaps half of the total leased-in area, although it is declining over time in favor of fixed-rent contracts (whether in cash or in kind). Share tenancy remains more prevalent in non-irrigated villages, owing to its greater potential for risk-sharing between tenants and landlords. In irrigated villages, fixed-rent tenancies may now account for three quarters of land-lease contracts. Contract terms vary widely, depending on the respective labor and capital contributions of tenant and landlord, the crops being produced, and extent to which the physical location of the leased-out plots permits close supervision. Regardless of the nature of the contract, rents are invariably higher than the legally stipulated maximum of one quarter of gross production. The land-lease market is clearly an important means by which the rural poor gain access to land. While there is little evidence of exploitative relations between landlords and tenants, there is some evidence that markets for other factors - particularly labor and, to a lesser extent, credit - are interlinked with the land-lease market. These interlinkages explain why it is also in tenants' interest to conceal tenancies, and why tenants are reluctant to press claims for lower rents or more secure rights of occupancy. Under these circumstances, liberalization of land-lease markets may well enhance access to land by the rural poor, but will be of most benefit to them if they can also be assured access to institutional credit. The liberalization of the land-lease market, as proposed in the draft Orissa Revenue Administration Bill, and supported by Govemment of India policy under the Ninth Plan, is therefoTe cautiously to be welcomed, provided that the right balance can be struck between assuring landlords of their long-term ownership rights, and assuring tenants of their security of tenure and protection under the law for the duration of fixed-term tenancy contracts. Only with documentary evidence of such rights are tenants likely to face the possibility of access to institutional credit. vi 1 INTRODUCTION 1.1 Background Access to land is of fundamental importance in rural India. It remains the principal determinant of rural income distribution, although the direction of causality in this relationship is not clear. The weight of international evidence now strongly endorses a strategy for rural economic growth that is based on small yet economically viable, family-run farms. In the Indian context, in which a large and rising share of the rural poor derive livelihoods principally from their own labour, a powerful case can be made in favor of more equitable land distribution on grounds that such a strategy would generate more employment than alternatives. In sum, with the overall objectives in mind of reducing poverty, raising agricultural productivity, and promoting social inclusion, there are strong arguments for seeking ways to improve access to land for the poor and other socially excluded groups in rural Indial. Conventional approaches to improving access to land for the rural poor, both in India and elsewhere, have focused on land and agrarian reform. Land reform is perceived by some to be rising up the political agenda once again in many states of India. In the Ninth Five-Year Plan (1997-2002) the Department of Rural Development, Government of India, is focusing on land reforms, including new strategies to benefit socially excluded groups such as the selective liberalization of land-lease markets, and the promotion of women's land rights. Although state-imposed, redistributive land reforms are conventionally believed to have been unsuccessful in the Indian context (with notable exceptions), recent evidence suggests that much more has been achieved in implementing Indian land reform legislation than is often supposed. Nevertheless, the prospects for bringing about a meaningful improvement in access to land by the rural poor may be even stronger if attention is turned now to more limited, pragmatic measures, such as the selective deregulation of lease markets; and incremental reforms in land administration to facilitate more rapid, fairer, and cheaper conveyancing procedures. Such institutional reforms would also help to meet some of the preconditions necessary for the successful implementation of land consolidation and/or land redistribution programs where appropriate. 1.2 Scope and objectives of study In FY98 the South Asia Rural Development Sector Unit of the World Bank initiated an informal study on access to land in rural India. The overall objectives were to contribute to poverty reduction and rural economic growth in selected states of India by: (i) identifying feasible legal and institutional reforms, policy instruments, or other mechanisms to improve access to land, particularly for the rural poor and other socially excluded groups; and (ii) determining the potential role for the Bank (if any) in supporting such reforms, instruments and mechanisms. During Phase I of the study, an overview policy issues and options paper (Mearns, 1998) was prepared based on literature review and consultations with specialists within and outside the World Bank. The aims and scope of this review were: (i) to exanine the broad context of land relations in rural India; (ii) to identify the major constraints on access to land by the rural poor and other socially excluded groups; (iii) to suggest priority areas 1 Patterns of social exclusion tend to be closely correlated though not synonymous with the incidence of poverty. It is well recognized that people of scheduled tribes and scheduled castes in India are much more likely than other groups to live below the poverty line. Throughout this paper, 'socially excluded groups' refer to people of scheduled tribes and castes, women, and the rural poor. All of these groups are more likely than better-off or more powerful and influential groups to suffer from forms of discrimination at the hands of those government officials with whom they come into contact, and to be more or-less excluded from receiving entitlements through administrative procedures. I for legal, policy and institutional reform to help reduce these constraints; and (iv) to identify areas where further work is required in selected states to identify feasible legal, policy and institutional reforms. The present paper, which should be read in conjunction with the overview paper, constitutes Phase II of the study. It offers a more detailed institutional and stakeholder analysis of constraints on access to land by the rural poor at state level, as presented by the land administration system both in policy and in practice. At the core of this analysis is an attempt to specify the formal and informal transaction costs incurred by individuals in the land market. Based on this analysis, priority areas for legal, policy and institutional reform are identified. The state of Orissa was selected for this pilot study. The intention was to refine and document the approach, research questions, and methodology so as to provide a 'template' for subsequent studies in other states of India. Although land administration is a state subject under India's constitution, matters relating to land reform require concurrence at federal level. The prospects for meaningful reform of land administration at the level of India as a whole will be enhanced through policy dialogue based on comparative information on the diverse ground realities prevailing in a number of states. 1.3 Why Orissa? Several criteria guided the selection of Orissa for this pilot study: * there is considerable diversity in agrarian systems and patterns of land tenure throughout the state of Orissa, which offers an opportunity for comparative analysis and suggests a need to tailor recommendations accordingly; * access to land has already been identified as a priority by the Government of Orissa (GOO), and strong demand voiced by GOO for such a state-level study to be conducted by the Bank. The possibility of deregulating land-lease markets (tenancy), and measures to reduce land fragmentation, were identified by GOO as issues of particular policy concern; * the study findings and recommendations may be of direct operational relevance in the context of the Orissa Rural Development Project, currently under preparation by GOO for possible Bank support. 1.4 Methodology So far as we are aware, this is the first empirical study of its kind which examines access to land from a transaction costs perspective. The methods and strategies adopted in the field investigation were necessarily exploratory. The availability, quality, and sources of data were unknown at the outset, and a certain amount of iteration was required between the initial research questions and what could realistically be achieved within the time available. Limited information was available from secondary sources (particularly village studies) for certain, discrete aspects of the research (e.g. tenancy, land fragmentation, or encroachment on commons). However, the overall approach adopted here - namely, to analyze the factors affecting access to land within a holistic framework, including an institutional analysis of land administration in policy and practice, and consideration of the distributional consequences for particular groups - is otherwise untested. The broad methodology for the pilot study in Orissa included (see Annex for further details of data sources and strategy for field investigation): * a review of the existing legislative, regulatory, and judicial framework governing access to land in Orissa to identify specific consequences for the rural poor and other socially excluded groups; * extensive discussions with principal stakeholders involved in policy-making, land revenue administration, and transacting in land to identify the roles and strategies of different actors or stakeholders; 2 * visits to ongoing survey and settlement and land consolidation camps to understand, at first-hand, the operations and functioning of these aspects of land administration; and * focus-group discussions in villages (in each of three selected districts) to appreciate the ways in which the actual outcomes of various land administration procedures differ from their intended outcomes, and with what possible consequences for the rural poor and other socially excluded groups. It is important to be clear about the limitations of this pilot study. In part owing to the short time available, it was not considered desirable to attempt to administer a formal, structured questionnaire within a statistically rigorous sampling frame. Rather, semi-structured interviews were conducted with individual informants and focus groups, based on a checklist of research questions. Participatory diagramming methods were also used on occasion. In order to understand the practical functioning of the land administration system, considerable flexibility and serendipity is required on the part of the interviewer in the pursuit of unexpected leads, which would not be possible with a standardized questionnaire. The data reported are considered to be trustworthy, on the grounds that care was taken to cross-check the information obtained among diverse informants and research methods. Such 'triangulation' is one of the principal means of assuring data quality when using participatory learning methods. We found villagers to be generally willing to discuss their experiences on the 'receiving end' of the land administration system. Issues relating to the payment of bribes to lower-level government officers could be openly discussed. We have discounted some of the individual reported figures in several instances, following cross-checks with other informants. By and large, however, the regularities in individual responses across the state gives a measure of confidence in the broad picture that emerges. Rent-seeking was found to be sufficiently pervasive that it was possible to specify the 'going rate' in many instances. The principal limitation of the methodology adopted is that in the short time available, it was not always possible to probe variations as systematically as one would have liked, with the attendant risk that an impression of greater uniformity is conveyed than is in fact the case. Based on this pilot study, estimates of the minimum amount time required to complete certain stages of the field investigation are provided in the Annex. 1.5 Analytical framework Rights in land fall within a hierarchy ranging from the highly restricted to the fully specified. 'Ownership' here refers to the most specified forn of rights in land that prevail in Orissa, including rights to use exclusively, inherit, bequeath, and transfer by sale or gift. Even with privately owned agricultural land, certain restrictions apply on the uses to which that land may be put. Under 'adverse possession', it is also possible that ownership rights may be lost to another party if their continuous possession of the land for a period of at least 12 years duration can be demonstrated. Aside from such restrictions, ownership rights are the most secure form of rights in land and enjoy protection in law. At the bottom of the hierarchy of rights in land fall usufruct (use) rights, particularly if those use rights are declared illegal and are therefore highly insecure. An example would be customary claims of tribal groups to cultivate on forest department land, which are declared illegal under the 1980 Forest Conservation Act. Rights to use village commons (e.g. for grazing livestock, gathering fuelwood or fodder) are a more secure form of usufruct right, but may be compromised in practice if those commons have been encroached. Occupying an intermediate position in the hierarchy of rights are legal rights which, owing to prevailing social norms and customs, may not actually be realised in practice. Women's rights to own land independently often fall into this category. In general, access to land may be enhanced through the extension of an individual's existing rights or claims over a larger land area, or the transfer or acquisition of a new class of rights in land, provided they are actually 3 enjoyed in practice. Security of tenure refers to the degree of confidence an individual has that his or her rights in land will be upheld in practice. Ownership and usufruct rights in land can be transferred or acquired through privately initiated land transactions in four ways: Land sale, which is the permanent transfer of privately-held ownership and usufruct rights. Land sales are permitted so long as the purchaser's total land ownership holding does not exceed the ceiling limit; Land inheritance, which normally occurs on the death of a land holder, and results in the partitioning of a privately owned land holding among two or more claimants. All rights are transferred to the claimants. This process also frequently leads to landfragmentation which, owing to spatial variation in land quality, generally takes the form of the subdivision among each claimant of each individual plot in the total land holding. Administrative attempts are made to restrict land fragmentation in the interests of increasing or at least maintaining agricultural productivity; Land encroachment, which refers to the forcible, defacto 'privatisation' of common or government land. Although encroachment is illegal, the government also seeks to redistribute ownership rights over some public land ('wastelands') to landless households. This apparent entitlement is treated separately from the question of encroachment, however, so that it is not possible for a landless household to press a claim through a spontaneous act of encroachment; and Land lease or tenancy, which,occurs when usufruct rights over a plot of land are transferred for a specified period and for a share in the output (share-cropping), or against a fixed (cash or kind) rent. Ownership rights remain with the original owner. The leasing of land is prohibited under Orissa law, though widely prevalent in concealed forms (oral contracts). A principal function of land administration is to maintain an authoritative record of the status and fiscal obligations of cultivators, to protect their rights, and to avoid agrarian disputes. Land records in India were initially established by means of survey and settlement operations. Periodic, revisional surveys are undertaken every 25-30 years or so. All land transfers completed during the intervening period between survey and settlement operations are recorded at the time of the revisional survey and reflected in the updated record-of- rights (RORs) in land. With an increasing volume of land transactions, state governments have had to devise various mechanisms to respond to these transactions. Survey and settlement (section 3) is still undertaken in Orissa without being a response to any specific transaction. Government's response to individual land transactions is conditioned by the existing legal framework. Thus, land sale transactions (section 4.1) are registered and the ROR updated through the regular process of mutation which, in principle, takes place as and when the transaction occurs. Land fragmentation (section 4.2) is perceived adversely to affect agricultural productivity. In response, the government implements a land consolidation program designed to reverse fragmentation through the redistribution of scattered plots into compact blocks without significantly affecting land distribution among individual land holders. Land records are also updated following a consolidation operation. The government's response to encroachment (section 4.3) is ambiguous as it ostensibly seeks to evict encroachers from common land, but is more lenient with respect to encroachment on revenue wastelands. At the same time, while landowners may be penalised and evicted for encroaching on wastelands, landless households are legally entitled to be settled on (i.e. acquire ownership rights over) that land. Land leasing (section 4.4) is not recognised by the Government of Orissa and, in spite of being widely prevalent, is largely concealed. This study systematically analyses each type of land transaction and the government's responses to examine how the interplay between the two impinges upon access to land by the rural poor. The analytical framework is depicted in Figure 1. 4 r----------l*------------ Survey and Settlement 1 Once in I Operations 2 y s r ' ' ~~~~~~~~~~~~~~~~~~~~~25-30 years P Permitted D subject to , } Sale I i Registration Regular ceiling I I l , , of Sale Deeds Mtt A ceiling Mutation T Restricted ILand Consolidati on Once E Ambiguous Encroachment e R0 R i i ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~s Prohibited & i| Lease |i MAPS Privately-initiated State responses Function of land land transactions revenue administration |Figure 1: Framework for Analysing Government's Responses to Land rransactions 5 1.6 Structure of the report The rest of the report is organised into four sections. Section 2 provides a brief introduction to the state of Orissa and the three selected study districts, the legal framework (including that governing women's access to land), and theagencies responsible for implementing land revenue legislation. This section provides important background information for the main analysis. Section 3 describes the nature and consequences of land survey and settlement operations, and assesses their continuing relevance. Section 4 forms the analytical core of the report. Using the framework developed above (Figure 1), this section considers each of the four processes by which land rights can be transferred from one party to another, critically analyses the institutional responses on the part of the state land revenue administration, and assesses the practical consequences for the ability of the rural poor and other socially excluded groups to increase their access to land. The concluding section identifies potential policy options suggested by the analysis, considers their implications for various stakeholder groups, and outlines suggestions for follow-up, including similar studies in other states. 6 2 THE BACKDROP 2.1 Orissa and the study districts On the basis of its physical features and agro-climatic conditions, Orissa can be divided roughly into four zones (see Map): 1. the northern plateau covering the districts2 of Mayurbhanj, Keonjhar, Sundargarh and part of Dhenkanal district, constitutes 23 percent of the state's total geographical area, 2. the central river basin encompassing Bolangir, Sambalpur and Dhenkanal districts, also covers 23 percent of its landmass, 3. the eastern Ghat region includes the erstwhile Kalahandi, Phulbani, and Ganjam and Koraput districts and is spread over 36 percent, and 4. the coastal plains of Balasore, Cuttack, Puri and a part of Ganjam make up the remaining 18 percent. The coastal plain region is the most agriculturally advanced in the state as a result of high soil fertility and more widespread availability of irrigation. Orissa is the second poorest state in India (after Bihar). Some 87 percent of the total population of 32 million (1991 census) live in rural areas, and 50 percent of the rural population (head count index) live below the poverty line (World Bank 1998). While employment in Orissa's rural non-farm sector grew at a rate of 2.8 percent a year over 1981-91 (Samal, 1997), the great majority of the rural population continue to depend upon agriculture and allied sectors. Figure 2 shows the distribution of household operational land holdings by size class. It indicates the change in land distribution brought about by post-Independence land reforms (section 2.3), combined with demographic and socio-economic change. Over the period 1953-54 to 1961-62, the number of households not operating any land increased substantially, following widespread evictions of tenant farmers after the abolition of large landlord estates (sections 2.3 and 4.4). Estates abolition and the enforcement of an upper ceiling on land holding size appear to have been reasonably effective in reducing large (greater than 6 ha) operational holdings from 5 percent to I per cent of the total between 1953-54 and 1982. Over the same period, the greatest gains were in marginal (0.4 - I ha) holdings, which increased from 17 percent to 24 percent of all land holdings. These are small, but not the smallest land holdings. The share of households operating no land declined over the 1960s, as the number of households acquiring sub-marginal (less than 0.4 ha) and marginal holdings increased, and by 1982 remained at around 25 percent of all households, which is comparable with the all-India average (Meams 1998). 2 The districts mentioned in this section refer to the 13 'undivided' districts. As described in Box 1, there are now 30 districts in the state (see Map). 7 Fig 2 Orissa: distribution of household operational land holdings, 1953-54 to 1982 100% 0 m 0)2 860%% ! e : 40% ~ Ml 1-2 ha o 20% l]0.4 -I ha Cu 1953-54 1961-62 1971-72 1982 Source: NSS data, reported in Sharma (1994) Agricultural land accounts for 59 percent of the total land area of the state. The share of total land area under various forms of agricultural land use is shown in Table 1. The changing proportions of total operated area accounted for by each size class of land holding is shown in Figure 3, for the period 1953-54 to 1982. Land reforms, demographic and socio-economic change together appear to have brought about little net change in the share of the total operated area accounted for by sub-marginal, marginal and small land holdings (i.e. those of 2 ha or less). Within this broad group, marginal land holdings (0.4 - 1 ha) increased their share of total operated area at the expense of small holdings (1-2 ha). Medium sized holdings (2-6 ha) accounted for the greatest proportion of total operated area, having gained at the expense of large (>6 ha) holdings owing to ceilings restrictions and estates abolition. Fig 3 Orissa: share of total operated area by holding size, 1963-54 to 1982 2! 100% ~ 80% a 60% , 0 ~ ~ ~ ~ ~ ~~ > 6 ha .9 40% ~ 2 -6 ha 0 20 ~1- 2 ha 20% Ej 0.4-1 ha 0% 00% ~~0 ~ 1953-54 1961-62 1971-72 1982 Source: NS S data, reported in Sharma (1 994) 8 Table 1: Land use in Orissa Land use Share of total area (%) Agricultural land (gross cropped area), of which: 59 Net area sown 41 Tree crops 6 Grazing land 4 Cultivable wasteland 3 Uncultivable wasteland 3 Fallow land 2 Forest land, of which: 36 Reserved forest area 17 Protected forest area 10 Other (e.g. panchayat land & village forests) 9 Non-agricultural land 5 Total land area (15,540,000 ha) 100 Source: Directorate of Economics & Statistics, Bhubaneswar Forest land makes up 36 percent of the state land area (Table 1). Over a fifth of the state population are tribal people whose livelihoods are traditionally derived from forest products. For administrative and management purposes, forests in Orissa are divided into three categories: reserve (representing almost half of the total forested area), protected (just over a quarter of forested area), and other (a quarter of the forested area), including village forests. Reserve forests are fully under the control of the Forest Department and are managed under various silvicultural systems. In protected forests, only the forest crop (i.e. trees) is managed by the Forest Department; the land is owned and controlled by the Revenue Department. Rights and privileges of local communities vary by the type of forest - restricted in reserved forests and more liberal in protected forests. Village forests are generally treated as open access lands with no investment from government, and are generally extremely degraded except where community protection has started (Saxena, 1996; Singh, 1995). There are now 30 districts in Orissa (see Map). The process of district re-organisation is described in Box 1. Three districts were selected for intensive study. The objective was to capture some of the intra-state variation in land tenure, agricultural and rural livelihood systems. Initially, it was assumed that much of this variation would stem from the historical legacy of the different land revenue systems prevalent in the state at the time of Independence. Consequently, one district was selected from each of: the former Bengal revenue system (Khurda district); Madras revenue system (Ganjam); Central Province system (Sambalpur). Dhenkanal district was also selected to represent the former princely states of Orissa, but had to be dropped from the field investigation owing to time constraints. As the study progressed, it became clear that there were indeed many differences among the three selected districts in the extent and nature of private land transactions, but these differences did not obviously or directly result from the legacies of different land revenue and tenure systems. Rather, they may be attributed to a combination of social, economic, and topographical factors. For instance, there is some evidence that land fragmentation is a serious problem in the coastal plains. At the same time, there are many similarities with respect to land markets. The land sales market is more or less uniformly depressed throughout the state. Tenancy is widely prevalent in spite of being banned throughout the state. 9 Box 1: District re-organisation in Orissa Orissa became a separate state in 1936 after its separation from the province of Bihar and Orissa, which was itself separated from the province of Bengal in 1912. On its formation in 1936, the state of Orissa comprised six districts: Cuttack, Puri, Balasore, Sambalpur, Ganjam and Koraput. By 1949, the 24 princely states were also integrated with the State of Orissa, which then comprised 13 districts: Cuttack, Puri, Balasore, Ganjam, Koraput, Sambalpur, Dhenkanal, Sundargarh, Keonjhar, Balangirpatna, Boudh-Khonmandal, Mayurbhanj, and Kalahandi. These 13 districts are now commonly referred to as the 'undivided districts'. In 1973, a Committee was established to consider the question of district/subdivision re-organisation in Orissa. No decision was taken on the recommendations of the Committee until 1990, apart from the renaming of Boudh-Khondmals district as Phulbani in 1986. In 1992, four new districts were declared (Gajapati, Malkangiri, Nowarangpur, Rayagada), followed by 10 more in 1993 (Khurda, Nayagarh, Sonepur, Bargarh, Kendrapara, Jagatsinghpur, Jajpur, Nuapara, Angul, and Bhadrak), and a further three in 1994 (Jharsuguda, Deogarh, and Boudh), bringing the total number of districts in Orissa to 30. The new district boundaries are shown in the Map together with those of the former, undivided districts. The selected districts are: Sambalpur, originally belonging to the Central Provinces land revenue system. Located on the border with Madhya Pradesh in the north-west, it consists of a wide expanse of fairly open country, fringed by forest-clad hills and a series of low hill ranges of irregular shape (Sarap, 1991). Over half the total area of the district is classified as forest land, compared with the state average of around a third of total land area. Sambalpur district has a total population of just over 800,000 (1991 census) of which nearly 75 percent live in the rural areas. The scheduled caste (17 percent) and scheduled tribe (35 percent) population together constitute more than half of the district's total population. The terrain is generally rocky and undulating, which makes it difficult to regulate the flow of water. Only 52 percent of the net sown area in the district is irrigated. Soils are generally deficient in nitrogen and phosphate which limits crop productivity. Khurda, lying in the coastal plains region of Eastem Orissa, was carved out of Cuttack district in 1993. According to the 1991 census, its total population was just over 1.5 million. More than one-third of the people live in urban areas including the state capital Bhubaneswar. The scheduled caste and scheduled tribe population together make up less than 19 percent of the district's population. The Bengal tenurial system was prevalent in Khurda. Only 21 percent of the district land area is classified as forest land. Soils are fertile loams, and a high proportion (84 percent) of the net sown area is irrigated by canals. Ganjam is the largest district in Orissa, with a total population of 2.7 million. Only 15 percent of the total population reside in urban areas. Ganjam formerly fell under Madras Presidency. Scheduled castes (18 percent) and scheduled tribes (3 percent) constitute 21 percent of the district's population. The forested area of Ganjam district is the same as the state average (36 percent), and the share of net sown area that is irrigated is high (94 percent). 10 2.2 Land revenue systems of Orissa As more areas came under British control from the late 18th century onwards, a number of different land revenue assessment systems evolved according to the status of the individual of whom land revenue was actually demanded3. Zamindari and the ryotwari systems were the most common and their main elements are described in Box 2. The zamindari system existed in five districts in Orissa, the ryotwari system in a part of a district, and the so-called Subsidiary Alliance in the 24 princely states covered the remaining seven districts. More than 80 percent of privately owned land fell under the zamindari system (Pathy, 1981). A number of different revenue and tenancy laws also prevailed in the state. This was because parts of Orissa fell within different administrative units belonging to Bengal (later with Bihar after its separation from Bengal in 1912), Central Provinces, and Madras. The 24 princely states were controlled by the British through a Subsidiary Alliance by which the princes had freedom in their internal administration so long as they paid regular tributes to the colonial authority. The former extent of each legislative jurisdiction is described in Box 3. Box 2: Main systems of land revenue assessment in Orissa prior to Independence Zamindari (or landlord) tenure: land was held as an independent property and revenue was assessed on an individual, or a community, owning an estate as a landlord. Proprietors were required to deposit land revenue at the district treasury. One sub-divisional officer, assisted by one or more tehsildars, was incharge of revenue collection. There was no revenue administration below the district level, and the zamindars organised their own revenue collection agencies, often involving many more layers of intermediaries. Ryotwari (or peasant proprietary) tenure: land belonged to the Crown and was held in a right of occupancy (which was both heritable and transferable) by individuals. Revenue was assessed on individuals who were the actual occupants of smaller holdings. It was collected through the village headman whose office was hereditary. He was paid a commission (10 percent) and sometimes received somejagir lands. In addition to collection of land revenue, he was also required to keep the records-of-rights up-to-date by carrying out mutations. Under either system, there were numerous rent-paying sub-tenants. What, if any, is the impact of the different revenue systems prevalent in the state until half a century ago? While there may be little practical difference, rights over commons, which are determined by traditional norms and customs, do vary across the state, and especially between the erstwhile ryotwari and zamindari areas. There was also considerable variation in the quality of land records management since there was a village accountant in ryotwari areas, but no such position in zamindari areas. As a result, land records were better maintained in the former and almost non-existent in the latter. These differences can create problems during land litigation since there may be no historical records on which to establish the bases of competing claims. 3 The systems had evolved according to the varying degrees in which, in different parts of the country, tribal occupation of territory had superseded the rights of the ruler, or full proprietary rights had been granted to the individual. 11 Box 3: Extent of land revenue systems in Orissa at Independence Bengal revenue system: covered northern part of the state, comprising the undivided districts of Cuttack, Puri, and Baleswar (but excluding the princely states merged in these districts). In these areas, the Bengal Rent Act 1859 was the first legislative attempt to regulate tenancy, replaced by Bengal Tenancy Act 1885. After 1913, the Orissa Tenancy Act was modelled more or less on the Bengal Tenancy Act. Many intermediary forms of tenure subsequently developed in these zamindari areas, and an increase in share-cropping is suggested to date from this period. Madras revenue system: extended over southern part of the state, comprising the undivided districts of Ganjam, Koraput, and Baliguda sub-division of Boudhkhondmal (now Phulbani) district (i.e. Oriya-speaking areas of the Madras Presidency). Here the first attempt at tenancy legislation was the Madras Estates Land Act 1908, which applied to the zamindari areas of Madras Presidency. There were also ryotwari areas under the state government where the rights of landholders were governed not by law but by executive instructions contained in the Board's Standing Orders which had the force of law. As in zamindari areas, landholders (ryots) could freely sublet to tenants who had no protection under the law. Central Province system: prevailed across western part of state, comprising the undivided districts of Sambalpur and Nawapada (i.e. the Oriya-speaking areas of former Central Provinces). In these areas the Central Province Land Revenue Acts 1881 and 1917 and the Central Province Tenancy Acts 1898 and 1920 governed land revenue and tenancy. Princely states: these partially excluded areas had separate land settlement/ revenue regulations under the Government of India Act 1935. There were no written laws designed to protect the interests of tenants in most of the princely states. The Orissa States Order 1948 conferred occupancy rights on tenants, but no rights were recognized for any tenants below occupancy tenants in the hierarchy of rights in land. Source: Behuria (1997) 2.3 Review of existing legislation governing access to land in Orissa Land legislation in India in the years immediately following Independence sought to reform the exploitative and iniquitous system inherited from the British, and was motivated by the central concern to provide 'land to the tiller'. To confer ownership right on tenants it was necessary first to abolish intermediaries and provide security of tenure. These measures alone would have been insufficient to realize effective ownership rights and so it was important also to regulate rent. These provisions were to be accompanied by the fixation of a ceiling on land holdings to prevent excessive concentration of land. While there was a national consensus on these objectives, land was classified as a state subject in the Constitution and the federal states were free to legislate to account for local specificity. During the last 50 years a number of laws have been enacted in Orissa in order to establish the legal framework for land reforms (e.g. Estate Abolition Act 1952, Land Reforms Act 1960, and Survey and Settlement Act 1958) and land administration. The latter includes: the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land (OCH&PFL) Act 1972, and the Orissa Prevention of Land Encroachment (OPLE) Act 1972 (to prevent unauthorised occupation of government land). The main provisions and resulting impacts of the key pieces of land legislation are summarised in Table 2. 12 On the whole, land reform legislation has had only limited success in Orissa. Weak land revenue administration and lack of up-to-date land records were important contributory factors. At the same time, various provisions of different Acts were challenged in the Courts because of a number of shortcomings in the law. Often this required amendments to the original Acts and further delayed their implementation. Abolition of intermediaries, which was achieved relatively easily in other states, was not completed in Orissa until 1974 owing to the absence of reliable records. Finally, a 'blanket notification' had to be issued by administrative fiat. More than 6000 cases relating to abolition of intcrmediaries are still pending in the Orissa High Court4. The initial ceiling on land ownership, fixed at 33 standard acres5, was set at a high level and enabled intermediaries to evict tenants. By the time it was reduced to 10 standard acres in 1972, large landowners had had sufficient opportunity to escape the ceiling limit by 'transferring' the surplus land in the name of relatives even while they maintained defacto control. As in other states, the implementation of tenancy reforms has generally been weak, non-existent or counterproductive, resulting in the eviction of tenants, their rotation among landlords' plots to prevent them acquiring occupancy rights, and a general worsening of their tenure security (Appu 1997). Even though the Orissa Land Reforms (Amendment) Act, 1965 and its subsequent amendments in 1973 and 1974 conferred full ownership rights to tenants on land in their possession, tenants do not enjoy security of tenure as it is difficult in practice for them to establish their ownership rights. This is in spite of the strict provisions under the Orissa Survey and Settlement Act, 1958 to record names of tenants who are the actual cultivators. The legislative ban on leasing has led to concealed tenancy arrangements that have tended to be even more informal, shorter (increasingly seasonal), and less secure than they had been prior to reform. The provision of the maximum rent is easily flouted, and various government reports and village studies have recorded the rent paid by tenants across the state to be twice the stipulated amount. Issues relating to tenancy are analysed in Section 4.4. Even the relatively minor pieces of legislation designed to ensure effective revenue administration have not been very successful. In the face of customary inheritance laws, thin land markets, and widespread variation in land quality, the OCH&PFL Act has failed to achieve both its objectives of consolidating holdings and preventing fragmentation (Section 4.2). At the same time, increasing pressure on land combined with distorted incentives has served to undermine the basic provisions of the OPLE Act (Section 4.3). The Govemment of Orissa has recently prepared a draft Revenue Administration Bill, intended to simplify, consolidate and replace these separate laws governing land administration. The proposed provisions permitting 4 Member, Board of Revenue, personal comm. 5 A standard acre is defined as 1 acre of Class I land, 1.5 acres of Class Il land, 3 acres of Class III land, and 4.5 acres of Class IV land. Class I land has perennial irrigation on which two or more crops can be grown, whereas Class II land is also irrigated but cannot yield more than a single crop in a year. Class III land is unirrigated but on which paddy can be grown, and Class IV land is any other land. 13 Table 2: Main Provisions and Impacts of Land Legislation in Orissa Name of legislation Year of Main provisions Impact promulgation Orissa Estate Abolition - 1952 * Abolition of intermediaries; * The Act aimed at abolishing intermediaries but did not OEA - Act * Vesting of all land rights in the state; contain any provision of protecting the tenant. * Agricultural land less than 33 acres to remain with intermediary * Large-scale eviction of tenants as zamindar allowed to for personal cultivation resume land less than 33 acres for personal cultivation * Owing to the absence of reliable records, abolition of intermediaries not completed until 1974. Orissa Land Reforms Act 1960 * Permanent, heritable and transferable rights in land for the * Delay in the enactment and actual implementation of the Act - OLRA tiller; provided sufficient opportunities for large landowners to (Amended in 1965, 1973 * Ban on leasing of land except under special conditions (in escape ceiling restrictions. and 1974) 1972); * By explicitly banning tenancy, the law has swept the problem * Under adverse possession, land in continuous cultivation for 12 of share-cropping under the carpet. No provision made to years or more by a person other than its owner shall pass to the record concealed tenancies. cultivator * Rent not to exceed one-fourth of the gross produce; * Ceiling on individual holdings at 33 standard acres - later reduced to 20 (in 1965), and to 10 standard acres (in 1972). Orissa Survey and 1958 * Different laws relating to survey, record-of-rights and * Establishment of uniform though defective systems - rights Settlement Act settlement amended and consolidated into one uniform law of tenants not recorded during settlement operations Orissa Consolidation of 1972 * Fragmentation of land declared illegal * Little impact on land fragmentation. Holdings and Prevention * First choice of transfer to adjacent farmer * Occasional land sales but rarely to adjacent farmer of Fragmentation of Land * Consolidation of landholdings ignored by farmers in western - OCH&PFL - Act Orissa because of undulating terrain Orissa Prevention of Land 1972 * Unauthorised occupation of government land prohibited. * Flagrant disregard of the Act - widespread encroachment on Encroachment - OPLE - * Penalties on encroachers to be followed by eviction. both government and common lands, often by powerful Act * 1982 amendment for settlement of two (later amended to one) groups. Penalties too low to act as a disincentive to (Amended in 1982) standard acres of 'unobjectionable' land (i.e. government encroachers wasteland) with 'eligible' beneficiaries (e.g. landless) * The 1982 amendment not a 'proactive' right - encroacher cannot 'apply' to be regularised as act of encroachment is regarded as illegal in the first place. Only RI can initiate regularisation of rights * Considerable scope for rent-seeking by revenue officials Source: Compiled from Behuria (1997), Orissa Land Reforms Manual (1997), Patnaik (1980), Tripathy (1992), and field notes. 14 the liberalization of the land-lease market remains an obstacle to the rapid enactment of this law. The initiative behind this unified land administration law is most welcome, since the complexity of the existing legislative framework, inherited as it is from diverse pieces of legislation designed to bring together quite different revenue systems, accounts for much of the wide scope for evasion of the law in practice. 2.4 Women's access to land The survey of the legislative framework in Orissa confirms that 'land reform policies have been based on the principle of redistributive justice and on arguments regarding efficiency (land to the tiller, fixation of ceilings, prevention of fragmentation, etc.); but on neither count are gender inequalities taken into account' (Agarwal, 1994: 216). No law has dealt specifically with increasing women's access to land. Rights to land for Hindu women are according to the Hindu Succession Act 1956 which provides for daughters, widow and mother of a Hindu man dying intestate to inherit property equally with his sons. In practice, however, significant and persistent gaps exist between women's legal rights and their actual ownership of land, and between the limited ownership rights women do enjoy and their effective control over land (Agarwal 1994). For example, the Orissa Land Reforms Act 1960 does not mention the order of devolution at all. So whether the devolution of tenancy land will be according to personal law, or would follow a different order of devolution, is open to interpretation. Gender inequalities in OLRA have also arisen from enactments relating to the fixation of ceilings6 on two counts, namely: * the definition of 'family': Article 37 of the Act defines a family as the individual and his/her spouse and their children, whether major or minor. Later the law was amended to include married daughters whereas a childless widow is not considered to be a member of her deceased husband's family (Orissa Land Reforms Manual, 1997: A67-A69). * recognising only men's and not women's independent land rights: Women's rights to land are most often subsumed under those of her husband. A woman does not count as an owner in her own right, which leaves her disproportionately vulnerable to losing her land (See Box 4). Box 4: Constraints on women's access to land In a 1986 court case in Sambalpur, the govemment Revenue Officer, in assessing ceiling surplus land, aggregated the land of both spouses as 'family land', including land separately registered in the wife's name and inherited from her father. But the Revenue Officer gave notice only to the husband as the 'person interested'. The two men settled the matter between them, and the wife's land was declared surplus. The wife appealed the order to the High Court, asking that her separate land be excluded from the ceiling surplus, on the ground that since the land concerned was her separate property she was the 'person interested' to whom prior notice should have been given. This, she argued, would have given her a chance to ask the Revenue Officer to let her retain her land and instead declare some part of her husband's land as surplus. Her appeal was accepted by the High Court under the constitutional principle of 'natural justice.' Source: All India Reporter (1986), 'Kunjalata Purohit v. Tahsildar, Sambalpur and others', Orissa 115, quoted in Agarwal (1994) 6 A ceiling is fixed in relation to a family unit consisting of up to five members. Additional land is allowed to be held by families of over five members, subject to a specified maximum. OLRA, as amended in 1974, has fixed a ceiling of 10 standard acres for a family of five which can increase by two standard acres for each member in excess of five, up to a maximum of 18 standard acres. 15 There is, however, a deeper issue of the perceptions of women's role in agriculture. This is reflected in Section 2 (21) of the OLRA by which 'persons under disability' refers to, inter alia, 'a widow, or an unmarried woman or a woman, who is divorced or separated from her husband ...'. On the face of it., this provision is a special consideration for female heads of households to lease out their lands for cultivation when leasing is otherwise prohibited. But it masks two important underlying presumptions: (i) that women are perceived to be in need of protection from the rigours of cultivation and so should be allowed to lease out their land; and (ii) that only female heads of households should have control over land, while for other married women living with their husbands control over land is subsumed under the 'family'. The first presumption ignores the fact that bulk of the agricultural tasks (especially labour-intensive tasks such as rice transplanting, weeding and harvesting) are, in any case, performed by women. In some respects, the OLRA is quite progressive in that it allows land gifted to a daughter on the occasion of her marriage to be excluded from the ceiling area of the father. Ostensibly, this is to encouLrage land transfers to daughters, but it rarely happens in practice. Generally, women do not have RORs in their own names. In a family, the ROR is recorded in the name of the husband. Extensive discussions with women in Laderpally (Sambalpur district) and Badavema (Khurda district) villages reveals that women have RORs in their names only under special circumstances as described in Box 5. Women would very much like to hold the patta in joint names with their husbands to prevent indiscriminate land sale by husbands without their consultation7. Besides, in the event of a divorce, the wife would be able to claim a share of the joint property. There was less unanimity, in both villages, on the issue of equal rights for sons and daughters. Women in Laderpally pointed out that equal rights for daughters will have a positive impact on the dowry problem. Very often parents have to sell off a piece of land to arrange for a dowry for the daughter. But even if the demand for dowry is met, there is no guarantee that the daughter will be able 'to live happily after marriage'. In the event that she is sent back to her parents on some trivial ground or other, the dowry would remain with her in- laws. Our respondents recounted the case of one family in Laderpally village that had sold half an acre of good quality land for their daughter's dowry. Six months later, the daughter was sent back to her parents. Apparently, her husband and his parents did not like her. All the items given as dowry rermain with the husband. "If we had given her a piece of land instead, my daughter would still have had it: with her", lamented the mother. 7 According to the ADM Sambalpur, joint pattas have begun to be issued in the joint names of husbands and -wives in two tehsils in the district on an experimental basis. 16 Box 5: When can women have lands registered in their own names? * After the death of husband, wife becomes a joint share holder of the deceased's land, along with her children. * If a family has more land than the ceiling set by the government, the surplus land is recorded in the name of the wife/daughter to avoid ceiling restrictions. * When there is no male heir in the family, daughters get the ROR transferred to their names. * Unmaffied women (those who could not marry and are living with their parents/brothers) get some land in their name. This does not come automatically, however, and often has to be contested. * There are cases in which a woman's in-laws transfer the ROR in their daughter-in-law's name, such as in the event that an alcoholic man's parents believe that their son will sell off all their land. * In some cases, when a woman marries a widower or divorced man, her parents generally insist that the man transfer some land in his new wife's name. This is done to ensure some economic security for the second wife in case the man marries for a third time while the second wife is alive. Another reason is that any children the man may have by his first wife may might claim the entire property of the father leaving the second wife with no legal claim. Women's legal rights in land conflict with deep-seated social norms and customs, and are rarely recognized socially to be legitimate. Thus, men are considered the defacto land owners even when the ROR is in the wife's name. For example, Janaki Panda of Badavema village (Khurda district) is the only daughter of her parents. She lives in her parent's house with her husband. After her father's death, her husband was considered to be the household head even though she was the legal heir to her parental land. All major decisions are taken by her husband. While women would like to have an equal share in their parental land, they are aware of the cultural constraints that are difficult to overcome. For instance, if a woman demands a share of her deceased father's land, she often has to sever all relations with her brothers. There is usually a strong disincentive for many women not to press claims on parental property. This is because culturally a woman is not expected to claim any property from her parents/brothers. If she is unmarried and/or is in a financially tight situation, she might get some land if the brothers are sympathetic and willing to share. Thus, there are strong pressures on women to cede their legal rights to their brothers, reinforced by social stigma, seclusion practices, and other sanctions. Given the lack of alternatives, women tend to be dependent on their brothers for economic and social support in the event of widowhood or marital break-up. Sections 2.3 and 2.4 have highlighted the consequences of the existing legal framework governing access to land for socially excluded groups. Various factors-have combined to frustrate the stated intentions of land reform legislation in Orissa. However, legal restrictions are only one part of the story. The other part relates to the many formidable obstacles that constrain the poor (including women) from exercising even the limited rights they currently have. Part of the explanation for this lies in the organisational structure and operational procedures of the state's land revenue department, which combine to create high transaction costs in land markets. The next section describes the structure of the land administration system in Orissa. 17 2.5 Structure of land revenue administration in Orissa The central purposes of land administration are to collect land revenue and to protect the rights of cultivators. This dual role is reflected in the division of roles and responsibilities between the administrative section responsible for policy formulation and the collection of revenue (Revenue Department) and the Board of Revenue which is concerned with judicial matters and policy implementation. The Department of Revenue and Excise (DRE) of the Govermnent of Orissa (GOO) functions under the Ministry of Revenue and Transport through Principal Secretary, Revenue and Excise as head of the Department. The major activity of the DRE relates to policy formulation in revenue administration in the entire state. Policies are implemented by the Board of Revenue (BOR) headed by the Member, BOR. It is the apex authority in the matter of revenue administration and revenue policy implementation. It also has judicial authority. Coordination of land reforms and maintenance of land records are undertaken by the BOR. The DRE, on the other hand, is the policy-making body with respect to these areas. As is apparent from Figures 4 and 5, which show the organisational structures of the BOR and DRE respectively, there is considerable duplication of roles between the DRE and the BOR, which contributes to a lack of coordination between the two agencies and reduces efficiency. The BOR has been described by senior revenue officials in Orissa as an older, colonial-inherited institution that is declining in importance as government responsibilities increase8. The Member, BOR, is the Chief Controlling Revenue Authority, whose judicial authority is delegated to the Revenue Development Commissioners (RDCs). There are three RDCs in Orissa, one for each of the North, Central, and South Zones9. District Collectors report to the RDC of their respective zones on revenue matters. Each district is sub-divided into one or several sub-divisions headed by the Sub-Collectors. The next lower administrative unit is the tehsil which functions under the Tehsildar. The BOR functions through several divisions in correspondence with different wings of the revenue administration (Figure 4). The Commissioner, Land Records and Settlement (CLRS), the Land Reforms Commissioner (LRC), and the Consolidation Commissioner (CC) are mostly concerned with disposal of settlement and consolidation cases. The Special Relief Commissioner (SRC) is responsible for all relief- related works generally performed through respective District Collectors and Block Development Officers (BDOs). The other three divisions within the BOR have more direct, day-to-day responsibility for the implementation of various land-related provisions, and organise the state's responses to privately-initiated land transactions as depicted in Figure 1. 8 Other states have recognised the limited advantage of maintaining two parallel bodies in land administration. For example, there is no longer a Board of Revenue in Andhra Pradesh. 9 RDC (North Zone) is located in Sambalpur and covers the undivided districts of Sundargarh, Sambalpur, Bolangir and Keonjhar. The RDC (Central Zone) is located in Cuttack and extends over Cuttack, Puri, Balasore, Mayurbhanj and Dhenkanal districts. The RDC (South Zone) is located in Ganjain and covers undivided Kalahandi, Koraput, Ganjarn, and Phulbani districts. 18 I Ministry of Revenue and Transport L Department of Revenue and Excise Ecs I . ~~~~~~~~~~~~~~~r Diecor Cmmissioner, ' rDC RDC RDC Landissionrds Director, Commissioner IGR-cumn- Commissioner Ln eod omsinr (Nort) (Central) (South) and Settlements Consolidation Special Relief EComissoe r Land Reforms and Survcys Operations District Collector Consolidation Registrar Supdt.le n S Officer Settlement | |Survey and| Officer officer Map Publ. Office District Sub-Collector Sub-registrar Asst. Charge Consolidation Ofcharg Officer Officer Tahsildar Sub-registrar | Assistant Settlement Officer Revenue Inspector Figure 4: Organizational Chart of Revenue Administration in Orissa 19 Survey and settlement: Rather than responding to any specific land transaction, the survey and settlement process recognises all land transfers that have occurred since the previous revisional survey but remain unrecorded for various reasons. The Director, Land Records and Survey (DLRS) is the nodal officer responsible monitoring the survey and settlement operations and preparation of an up-to-date Record of Rights (ROR). Survey and settlement operations are organised through Settlement Officers in charge of respective settlement zones (with each zone covering several districts), and Charge Officers covering a 'range' or 'circle' across more than one district. Land registration: The government's response to current land transfers1I is organised by the Inspector General of Registration-cum-Excise Commissioner (IGR) who deals with registration and excise matters through District Registrars/Sub-Registrars and Excise Superintendents. All policy matters relating to registration administration and stamp duty are submitted by the IGR to the Government. Under section 69 of the Registration Act, the IGR is responsible for general supervision over all registration offices in the state and shall have the power from time to time to make rules consistent with the Act. Three Deputy IGRs are in charge of the ranges: Northern Range at Sambalpur, Central Range at Cuttack, and Southern Range at Berhampur. They have the power to inspect all registration offices falling within their ranges. At the district level, the District Registrar is empowered under section 68 of the Registration Act to supervise the sub-registrars under him. The ADM (General) usually functions as the District Registrar with the support of a District Sub- Registrar. There are 144 sub-registration offices in Orissa. The Sub-Registrars, District Sub-Registrars and Deputy IGRs have been deemed to act in place of the Collector for the disposal of under-valuation cases under section 2(9) of the Stamp Act. Land consolidation: The Director, Consolidation controls and monitors land consolidation operations in the state. The field units of the consolidation division are organised in a similar manner to the settlement division with Consolidation Officer (for a zone) and Assistant Consolidation Officers (for ranges within a zone). In the field, the District Collector (DC) is the superior authority for revenue administration in the district, and the district-level officers of different divisions of the BOR (e.g. the Assistant Settlement Officer, Assistant Consolidation Officer and the District Registrar) report to the DC on administrative issues. However, the BOR also has a judicial role which is exercised through these field officers. Thus, the latter report to the RDC of their respective zones on judicial matters. The District Collector supervises the Sub-collectors (at the block- level), Tehsildars (in charge of a tehsil) and the Revenue Inspectors (RIs, or patwaris) who cover a number of villages within the revenue circle. 10 For present purposes, land transfers refer to transfers through sale, gift, and inheritance. 20 Principal Secretary, Department of Revenue and Excise Personnel Settlement & Land Reforms Land Government Relief Excise Consolidation Acquisition Estates (Natural calamities) Land Records Figure 5: Organizational Structure of Department of Revenue and Excise 21 2.6 Contribution of land revenue to state income After independence, land revenue in its true sense was more or less phased out in a populist political gesture to mark a break with the colonial past. As a consequence, there has been a sharp decline in the contribution of land 'revenue' to the state's gross income. As is evident from Table 3, land revenue contributed almost one- third of Orissa's tax revenue in 1958-59. A decade later its share had fallen to seven percent, and by 1988-89 it contributed less than two percent of total revenue. In absolute terms, land revenue increased by less than one percent per year compared with an annual increase of more than nine percent in total tax revenue over the period 1958-1988. Land revenue now amounts to a cess rather than a land tax and covers only a fraction of the actual costs of land administration. In Ganjam district, for instance, land revenue amounts to around Rs. 10 million a year while the annual salaries of district revenue officials alone exceeds Rs. 100 million I 1. Stamp duty, payable on registration of land transfers, has also declined somewhat as a share of total state income over recent decades, but remains a significant source of revenue. The significance of stamp duty among the various transaction costs incurred by individuals in acquiring land through land transfer is assessed in section 4.1.2 below. Table 3: Changing share of state revenue from different sources (%) 11958-59 11963-64 1968-69 11973-74 1978-79 1983-84 1988-89 Sales TVax 27.3 32.8 40.4 45.4 47.5 50.9 56.5 Excise Duty 17.6 13.9 19.3 13.8 8.7 8.7 7.7 Motor Vehicles Tax 11.2 10.8 I11.9 9.8 8.7 8.4 9.5 Electricity Duty 0.2 5.7 9.6 8.9 14.5 15.4 17.0 Entertainment Tax 1.5 1.7 1.8 1.9 2.6 2.2 1.4 Other Taxes* 0.4 1.9 1.0 4.4 3.4 2.1 0.04 Total Tax Revenue 100 100 100 100 100 100 100 Notes: Totals may not add up to 100 because of rounding. * Other taxes include agricultural income tax, goods and passenger tax and estate duty on agricultural properties. Source: Meher, 1993. l S.K. Satapathy, District Collector, Ganjam, personal comm. 22 3. LAND SURVEY AND SETTLEMENT OPERATIONS Land revenue is a rent fixed on land on the basis of its productivity and income. Land 'settlement' in Indian revenue parlance refers to the assessment of the land revenue demand from each parcel (plot) of land. It is preceded by: * cadastral survey: a comprehensive survey of plot boundaries conducted upon both the initial formation of the plot (e.g. through partitioning) and any subsequent boundary changes; and * preparation of Records-of-Rights (ROR): the ROR makes clear all interests in the land. The ROR does not alter existing rights or create new ones, but merely ascertains existing rights in a particular land parcel, and by whom they are exercised. The survey and the ROR are together used to assess the land revenue. Prior to Independence in 1947, different principles of rent settlement were followed in different parts of Orissa. The Survey and Settlement Act, 1958 (followed by the Survey and Settlement Rules, 1962) introduced uniform procedures for survey, preparation of RORs and settlement of rent. The term 'settlement' will be used here to refer collectively to these three processes. Settlement is initiated by government in order to update the RORs before determining the land revenue demand. It usually takes place once every 20-25 years although in some places the frequency has been much lower. The settlement operation is organised through field camps12 at which officers from the settlement section camp are physically based for much of the duration of the survey and settlement operation. Each camp covers a number of villages within the jurisdiction of a particular police station. The notification for a camp is issued by the beat of drum and by posting a copy to the gram panchayat and the RI. A minimum notice of 2-3 months is given prior to setting up the camp at a prominent place in the village. For instance, the settlement camp in Badavema village in Khurda district, one of the 7 camps operating simultaneously in Begunia Police Station at the time of our field study, covered 19 villages in Begunia RI circle, and had hired out part of the gram panchayat building. The survey and settlement operation consists of three main stages: cadastral survey, preparation or updating of land records, and assessment of revenue demand. Each of these is considered in turn. 3.1 Cadastral Survey An essential preliminary step to settlement of land revenue is the preparation of a cadastral map of the village. First, trijunctions of survey fields are demarcated with stones and used for theodolite traverses. The owners are notified and ordered to demonstrate their claims on the land to the amin by indicating where boundaries have changed through mutation. In the event of a boundary dispute (e.g. by encroachment), the disputed portion of the plot is shown as representing a new, discrete plot, and remains legally registered in name of the original ownerl3. 12 Technically, the settlement camp is known as the Attestation, Draft Publication and Objection Hearing (ADP & OH) camp. 13 To do otherwise would favor the encroacher and therefore give rise to considerable litigation. In practice such instances of encroachment do not come to the attention of the revenue authorities since they are referred to the civil court, which is prohibitively expensive for most people. In this process, weaker and disadvantaged land holders often lose effective control over land which remains legally registered as theirs. 23 Fields are then measured by means of chaining and orthogonal offsetting. A separate sketch is made for each survey field. Plot boundaries within the survey field are also surveyed I4. After the map has been completed, the survey fields are numbered and the individual plots given sub-numbers. In the past, alleged changes in plot boundaries were physically marked on the ground, but this practice gave rise to so much litigation that plot areas and boundaries are now simply compared with those shown on the previous map. This is also possible because most areas have been surveyed at least once and so previous maps exist. Amins are responsible for plot-to-plot mapping. They follow 'The Technical Rules of the Settlement Department of Bihar and Orissa', 1927. The rules specify the instruments to be used and procedures to be followed in the field. Survey instruments and procedures have changed little over the last 70 years, and are in fact based on those developed by Todormal (Emperor Akbar's Finance Minister during the mid-16th century). In recent years, the use of aerial survey methods has become more widespread in India1 5. In Orissa, however, the scheme for conducting aerial surveys is at a preliminary stage. A pilot project has been initiated in Angul district, in collaboration with the Research and Development Wing of the Survey of India, but progress has reportedly been slow due to the lack of efficient plotter equipment. 3.2 Preparation of the RORs After the village survey, the actual boundary of each individual plot is determined (kistwar), and plot-wise information16 provided in the prescribed format (khanapuri). The preliminary ROR (yaddast) is verified and validated in consultation with the landowner(s) (bhujarat and attestation). Draft khatiyans (the individual RORs) are then prepared and objections are invited (within a maximum of 60 working days) from concerned people for necessary amendments to the records (draft publication and objection hearing). In case of objections, the amin makes enquiries. On receipt of the amin's report, the Assistant Settlement Officer fixes a suitable hearing date. The records are amended after the objections have been settled. Box 6 provides a brief description of the nature of objections at a typical settlement camp. 3.3 Settlement of rent The amended records are brought to the Settlement Office for rent assessment according to the government's rent policy (rent fixation). This is followed by the preparation of the final ROR for the village, including relevant details from each landholder's final khatiyan. Four copies of the khatiyan are produced for distribution to the landholder(s), tehsil office (to regularly update any changes and record through subsequent 14 Broadly, two types of survey methods are used: the 'plane table survey' conducted by the Settlement Office for plane surfaces/ level ground, and the 'traverse survey' conducted by the Survey and Map Publication Office for hilly areas, rivers and forests. Survey and Map Publication Office is a constituent part of the Directorate of Land Records and Surveys (see Figure 4). 15 The usefulness of aerial survey methods depends upon topography, vegetation cover and the types of plot boundaries. Hilly areas may require more sophisticated and expensive photogrammetric methods that eliminate errors due to altitude differences. Heavy vegetation cover may make certain boundaries invisible, making it necessary to at least supplement the aerial photography with a ground survey. In general, the use of aerial survey is most advantageous in open country with small, irregular fields having physical boundaries. Aerial survey is most feasible in rural areas with large, regular fields having physical boundaries (Hanstad, 1996). 16 Such as land owner(s), forms of land rights, land use types, actual area of each plot belonging to the land owner, lease/mutation/encroachment details, and other relevant details. This is primarily a fiscal record to show from whom the assessment of each holding is to be realised, and the amount. 24 mutations following land transfers), Collector's office, and the Revenue Inspector (finalpublication andpatta distribution). After the final publication of the RORs, the field maps are prepared at the Settlement Office to indicate the exact shape of individual plots within the village. Box 6: Nature of objections at a settlement camp At the camp in Badavema village, Khurda district, more than 70 percent of objections related to non-recording of mutations for transferx deeds (sales and partition). About 20 percent arose out of errors during demarcation. Inheritance (3 percent), change of land title (3 percent) and land classification (1 percent) made up the rest of the objections. About 15 percent of objections relating to inheritance were brought by married women who had been denied a share in their deceased father's property by their brothers. Nearly one-third of the total number of objections were disallowed. This is a special category which relates to encroachment on government land. The encroaching parties have no patta (documentary evidence of land rights, i.e. sale deed or title) and the objection is thrown out. An Encroachment Register is prepared by the settlement staff which records encroachment on cultivable or non-cultivable government land (grazing land, burial grounds, etc.). It is handed over to the tehsildar to pursue under OPLE. The disallowed category also includes cases in which, after filing the initial objection, the concerned party fails to pursue their claim. Such cases arise most often over jointly-held property where the opposing claimants are brothers who later resolve the dispute by agreement. However, once an objection is filed, it cannot be withdrawn. It has to be investigated by the amin by interviewing witnesses near the plot. Women are rarely interviewed as witnesses. Settlement officials claim that objections usually arise out of oversight on about 10-11 percent of the cases handled by the settlement camp. Focus-group discussions with villagers in Badavema village reveals an altogether different picture. Their perceptions are summarised in Box 7. At any given time, settlement operation take place in about 4,000 of the approximately 55,000 villages in Orissa. Revisional surveys may be thought of as a stock-taking exercise. In a single operation spanning over 5-7 years, the area is re-surveyed, all land records updated, and land revenue reassessed for a number of villages within the circle of a police station. Settlement department officials perceive their role as providing a 'door-step service free of charge' to the villagers as the latter are spared the effort of going to the sub- registrar's office, paying stamp duty and all other, unofficial transaction costs required to register the sale deed, and can have their rights recorded immediately in ROR on presentation of the sale deed without having to apply for mutation. That is, settlement combines the registration of deeds (discussed in section 4.1.1) with the issuingof land title (mutation) (discussed in section 4.1.2). Consequently, many land purchasers prefer to wait for the settlement operation to register the transaction. At the same time, the settlement operation: * is inefficient and slow - takes 5-7 years to complete settlement in 15-20 villages, and may not be revised for a further 30 years. In Digpandhi, Ganjam district, one recently completed settlement operation was conducted some 50 years after the previous settlement operation; * provides an opportunity for rent-seeking - by government officials who perceive themselves as providing a service which commands a price; 25 * is prone to manipulation by powerful interests - it is common for people to encroach on private (or common) land during settlement camps in order to have a larger area recorded in their names; or to attempt to influence settlement officers to show a larger area on the village map. Settlement operations often result in increasing landlessness for the poor since it is easy for the more powerful to buy off settlement officers in their favour, leading to dispossession of poorer and weaker groups; and * is likely to become irrelevant with computerisation - settlement operations will become unnecessary if the mutation system is improved to as to permit regular and more rapid updating of land records (section 4.1.3). These shortcomings raise serious doubts as to the need to persist with settlement operations which might have outlived their utility. Some of these shortcomings and their distributional impacts are highlighted in a case study of farmers' experiences in Khurda and Ganjam districts in Box 7. 3.4 Conclusion Land settlement is a carry-over from the British period when its main purpose was revenue assessment at what were then lucrative levels for the colonial administration. Under zamindari tenure, in which single proprietors possessed large estates, the State revenue was assessed on the ascertained or assumed rental value. The revenue, though fixed with reference to acreage rates on the land actually cultivated, was assessed on, and payable by, the estate as a whole. The assessment remained unchanged for the period of the settlement. The proprietor could bring as much of the wasteland under cultivation as desired, and it was only on re-assessment at the end of the term of the settlement that the state could obtain any increase of revenue on account of the extensions of cultivation during the settlement period. The regular practice of revenue assessment, updating and maintenance of land records were absent in the zamindari tracts since the tenants and sub-tenants were 'tenants-at-will' and as such had no heritable or transferable rights in land. By contrast, land revenue administration systems in khasmahal and ryotwari tracts were in much better shape. Periodic settlement operations were the most cost-effective way of settling a large area in a short time. There was little need for sporadic settlements because land was rarely transferred or partitioned17. Moreover, settlement made sense when new lands were being brought under cultivation, i.e. without any transfer of ownership. The survey and settlement process may have outlived its utility is the same work can be done more efficiently by a smoothly functioning registration and mutation process. The system of deeds registration is examined in the next section. 17 This is not to suggest that land sales markets were absent during the late 19th and early 20th centuries. There were several classes of tenancies in zamindari areas (especially privileged tenancies based on service) that were heritable. Rent-collection contracts were also bought and sold (K.C. Shivaramakrishnan, personal comm.). 26 Box 7: 'They knock on your door to collect bribes' Farmers' main problems during survey and settlement operations relate to the rampant rent-seeking by government officers and the manipulation of the process by the large landowners to their own advantage. Objections are invited to correct any mistakes that might have occurred during the preparation of the yaddast and the draft khatiyans. This is the primary stage of rent-seeking by officials at the settlement camp. The two common types of errors are that the land is shown in somebody else's name, and that the area recorded (e.g. 0.75 acre) is smaller than the actual area owned (e.g. 1 acre). A sum of around Rs. 500-1,000 is usually demanded to correct the mistakes. Landowners are convinced that mistakes are made on purpose. For, "if these are genuine mistakes, why do they demand money to correct them?" Manipulation of the process by the large landowners emerged as a major issue in focus group discussions with landowners in Digpandhi tehsil, Ganjam district. Numerous instances were reported of alterations being made during the preparation of the preliminary RORs owing to the influence of large (and perhaps literate) farmers over settlement officers. In spite of these problems, landowners still prefer the settlement operation to mutation through the tehsil office since they find settlement procedures to be less cumbersome. They report that with settlement, at least 'there is a single-window for bribes'; 'you don 't have to make repeated trips to the tehsil office ', 'you save on transport costs and don't lose the daily wage'. It is widely acknowledged that government services were generally not performed without paying a bit extra. An elderly landowner in Badaverna village, Khurda district, explained the difference between settlement and regular mutation as follows: 'during a settlement operation they come to your door to collect bribes, whereas for ... mutation you have to go to the tehsil office to pay bribes.. and.. at the end of the settlement process (5-7 years) you can be sure that your work will be done if you have paid the money.' He cited the case of one farmer who has been unsuccessful in getting patta to a plot of land he bought 12 years ago even though he had made repeated trips to the tehsil office. It seems the previous RI was not sufficiently 'happy' and so some of the papers have now gone missing. Ideally, people would prefer to get the ROR at the time of registration of the sale deed. 27 4. LAND TRANSACTIONS AND STATE RESPONSES 4.1 Land sale transactions Land can be transferred from one party to another through sale/purchase, gift, inheritance, mortgage and tenancy. The last two are of a temporary nature and are excluded from discussion in this section. Data are not available from which to assess the relative volume of each type of transaction in Orissa. Discussions with revenue inspectors suggest that sale/purchase transactions constitute nearly 80 percent of all annual land- related transactions in a village, while gifts comprise 10 percent, and inheritance the remaining 10 percent (around a half of which result in partitioning of a land holding). Throughout rural India, land markets are incomplete, imperfect and often (though decreasingly) interlinked, resulting among other things in the persistence of marginal and sub-marginal operational holdings which can neither be easily added to nor disposed of (Meams, 1998). The situation in Orissa is consistent with this trend. A recent study reported that only about seven percent of farm land changed hands (through 88 sale/purchase transactions) over the period 1955-95 in a village in Sambalpur district (Sarap, 1998). There were wide fluctuations but the maximum area sold in any year was three acres. Based on a longitudinal survey of two villages in Cuttack and Dhenkanal districts over the period 1965-95, Swain (1998) also reported that around 5- 7 percent of village land was bought and sold. Thus, in general, the land market in Orissa is thin, with wide fluctuations in levels of activity. A land sale has first to be registered before mutation of the RORs of the transacting parties can be effected. This section analyses the various processes in executing land sale transactions to identify the limiting constraints on land transfers, and specifies and attempts to quantify the transaction costs involved. The section also examines, in light of recent research, whether removal of these constraints or reduction of transaction costs would indeed help to facilitate land sales and increase access to land by the rural poor. 4.1.1 Registration The prevailing system of land registration in India, developed under the British colonial administration, is governed by the Indian Registration Act, 1908, which provides for the registration of deeds in the case of transfers of immovable property including land. Subsequently, various regulations were passed at different times to suit local needs and facilitate registration of documents. The registration system aims to provide a public record of land ownership to protect individuals from being deceived by entering into transactions relating to properties previously disposed of, and to provide notice of the existence of certain continuing interests, encumbrances, and claims. Sales of immovable property18 are first executed on a non-judicial stamp paper of the prescribed amount19. This constitutes the 'sale deed' and is necessary to make the transaction effective under the law. The value of the stamp paper is also known as the stamp duty. Stamp duty is fixed as a proportion (currently at 4.2 percent) of the total value of the transaction. In addition, a stamp duty surcharge is levied at varying rates as shown in Table 4. The stamp duty is payable by either the purchaser or the seller, subject to agreement between them. 18 Along with wills, power of attorney, movable assets, etc. 19 Stamp papers are a monopoly of private vendors. Recently, a shortage of stamp papers has led to charging of illegal premiums by the vendors and widespread attempts to undervalue the transaction. In order to reduce such transaction costs, a proposal to introduce franking machines for supply of non-judicial stamps in Orissa has recently been approved by the Cabinet (J.K. Mohapatra, Revenue Secretary, GOO, personal comm.). 28 The original sale deed and a photocopy are produced before the district sub-registrar at the district-level, and the sub-registrar at the tehsil level, for registration. The clerk compares the photocopy with the original and attaches a certificate. The purchaser then deposits the registration fee (2 percent of the value of the transaction) and is expected to collect the registered document at a later date. However, such registration is voluntary and the validity of the sale deed is not the concern of the registering officer. It is estimated that about 10 percent of all registrations are illegal, in which government land or land belonging to someone other than the vendor is sold to unsuspecting purchasers. Such cases tend to he in urban areas where information asymmetries are high. In the rural areas, land is almost always inva1 jably bought and sold within a village in which people know each other20. The value of the property sold/purchased is verified (from a valuation register) at the time of registration to ascertain that it is not below the current market price. The highest value at which a particular type of property in a particular area is registered in the last three years constitutes the present market value of that property. This verification is necessary to prevent under-valuation, and thereby depresses the future 'market' rate2 1. Other activities of the sub-registrar's office include: Preservation of document copies: Four types of registers are maintained at the registration offices: Book 1 contains the certified photocopies of documents relating to immovable property. Book 3 is concerned with wills. Book 4 consists of documents dealing with the power of attorney, adoption of movable assets, etc. Book 2 records all transactions that are disallowed by the registrar's office, for example, in the event that one of the parties is a minor, stamp duties and registration fees have not been paid, or the transaction falls outside the jurisdiction of the Indian Stamp Act, 1899. Issue of encumbrance certificates: Persons keen to know encumbrances on a property over a given period of time provide details of the property and the period for which information is required, and deposit the fee for the search and preparation of the certificate. On receiving the request, the clerk searches the Index II register of the village in which the property is located for the required period. Issue of certified copies: Persons requiring a certified copy of a document have to deposit search, inspection and copying fees. Search is done on the Index register from which the preserved photocopy of the document is located and copied manually onto stamp paper. Back office activities: These include preparation of: (i) Indexes I and II to help search for the information for issuing encumbrance certificates and certified copies, (ii) valuation register which records information, for every village, on date of registration, area and type of land, and its value, (iii) fee book which maintains records of different types of fees collected such as registration fee, search fee, inspection fee, copying fee, and miscellaneous fee like marriage fee and petition fee, and (iv) the monthly receipt and expenditure statement. Stamp duty and registration fees are important sources of revenue for the state government. In 1988-89 (the last year for which comparative data are available), income from stamp duty and registration fees together constituted 6 percent of the state's revenue (Table 3). While its relative contribution to total state income has declined from 10 percent in 1958-59, in absolute terms stamp duty and registration fees contributed nearly Rs.600 million to state income from various sources in 1997-98 (Table 5). This figure, however, does not 20 It is customary for the purchaser to invite the seller for a meal which can typically cost Rs. 500. 21 Gift transfers avoid stamp duty. So if land is being transferred between brothers, they would prefer to show it as a gift rather than as a sale to evade stamp duty. No stamp duty is payable in inheritance cases. 29 Table 4: Description of charges relating to registration of land transactions Type of charge Rate Details Prescribed in Schedule IA of the Stamp duty 4.2% Indian Stamp Act, 1899 - frequently revised. Present rate fixed since 1985. Stamp duty surcharge Value Rural Urban Surcharge levied for sale, gift, Upto Rs. settlement, mortgage and lease 2,000 6.2% 7.2% transactions vide Additional Rs. 2,001- Stamp Duty Act, 1986 R.s. 5,000 7.7% 9.2% Rs. 5,001- Rs. 10,000 8.7% 11.2% Rs. 10,001- Rs.25,000 9.7% 12.7% Above Rs. 25,000 10.7% 14.7% Registration fee 2% Payable under the Indian Registration Act, 1908 Mutation fee Rs. 8 For transfer of Form No. 3 from the sub-registrar's office to the tehsil office for initiating mutation. Also the fee paid in inheritance cases to initiate ____________________________________ mutation at the tehsil. Writing of the sale deed Rs. 40-50 Paid to private, licensed scribes (mohoris) Demarcation fee, if part of a Rs. 4 per plot Penalty for not purchasing whole plot plot. Paid to the tehsil office for it to undertake demarcation of the new plot Search fee Rs. 17 To check last 12 years' records - ________________________ __ mostly in urban areas Endorsement fee Rs. 5 Incidental fee Rs. 2 As witness fee if paying money Consenting fee, ifjoint Rs. 40 per person To get permission of joint holders property l of the property Note: Figures in percentage are as percent of the value of the transaction. Source: Inspector-General of Registration, Board of Revenue, Cuttack, 1998. reflect the true volume or value of land transactions owing to the widespread practice of under-valuing property in order to reduce stamp duty and registration fees payable (Box 8)22. The latter are fixed as a proportion of the value of property being bought or sold, and usually amount to 17 percent of the registered value of the land transferred. Even taking under-valuation into account, this represents a highly significant transaction cost. Issues relating to rationalisation of the stamp duty to prevent evasion are discussed in Box 8. 22 The RI, Begunia circle was not sure of the incentive to undervalue property since using the land as collateral a land purchaser is able to obtain bank loans for 10 times the face value of the land shown in the sale deed. He estimated that increasing access to formal credit is the primary motivation for around a quarter of all land purchases in the region. 30 Table 5: State income from land registration (Rs. million, at current prices) 1994-95 1995-96 1996-97 1997-98 Head of Target Actual Target Actual Target Actual Target Actual Account Stamp duties 503.50 401.80 763.80 500.60 687.50 566.30 855.10 488.30 Registration 118.40 8150 132.60 89.50 112.40 112.20 174.80 110.30 FeesI Total 621.90 483.30 896.40 590.10 799.90 678.50 1029.90 598.60 Source: Inspector-General of Registration, Board of Revenue, Cuttack 4.1.2 Mutation Registration of deeds is followed by mutation, which is to register a change in the record-of-rights in land. Sale deeds carry no guarantee of validity, and therefore offer no conclusive evidence of rights in land. Once mutation has been effected, the government, through the tehsil office, provides the landowner with documentary evidence of rights in land, locally called a patta23, which amounts to evidence of land title. A legal interest in land is not created or transferred until mutation takes place. However, as we describe below, this process is both lengthy and costly, and many landowners do not bother to embark upon it, preferring instead to use their sale deed as evidence of their land rights, and to wait until the next survey and settlement operation during which they expect to be issued with apatta after the land records have been updated. Registration of transfer deeds of any property is intimated by the sub-registrar to the concerned tehsildar in a prescribed format (on Form No.3). This information is used by the tehsildar to effect the mutation in the ROR24. Mutation refers to the amendment of state records to reflect a change in ownership or other rights in land through sale/purchase, gift, inheritance or mortgage25. Before making any change in the ROR, the Tehsildar26 calls for objections to the transaction within a stipulated period. Any objections to the transaction are dealt with by the tehsil court. Sometimes, the matter may be referred to the next higher court of the Sub-Collector or above. Once the mutation is allowed, the Tehsildar issues a notification to update the RORs of the land transferor(s)! transferee(s). After mutation and correction of RORs, a 45-day appeal period is allowed for challenging the mutation. This is particularly relevant in the case of multiple brothers with potential claims on a parcel of land, one of whom may challenge the transaction. Finally, certified copies reflecting the latest status of land ownership are issued to the seller(s) and purchaser(s), the copy of the original record maintained at the Tehsil office is up-dated, and necessary corrections are made in the village map to reflect the most recent plot boundaries. 23 Patta locally means a card, and is probably derived from the English system which used loose cards prior to computerisation. 24 The Form includes information on village, thana, khata number, plot number(s) and respective area(s), amount of rent, type of transfer (sale/gift/partition), name of the registration office, registration number, and the names and addresses of the vendor(s) and vendee(s). 25 Mutations arising from inheritance do not have to be registered and are initiated at the tehsil office (without submission of Form No. 3). 26 However, the tehsildar is not empowered to mutate cases during settlement operations. At such times, mutation is carried out by the Settlement Officer. 31 The process of acquiring apatta after a land sale/purchase can take a minimum of 3 months if there are no objections at any stage (Table 7). Typically, it takes 3-5 years and entails numerous trips to the tehsil office by the purchaser. If for some reason the RI is not kept 'happy' by the purchaser it may take as long as 12 years (Box 8). Often the size of land parcel for which the patta is issued is less than the size of land parcel actually purchased. For instance, two brothers Ishwar and Ulla Gowda of Gopalpur, Ganjam district, purchased 2.12 acres from Chanchala Pradhan. The patta records 2.06 acres even though they cultivate the full extent of the 2.12 acre plot. Ishwar and Ulla Gowda fear that problems are likely to arise when they decide to sell the plot. The new purchaser would negotiate on the basis of the existing patta and pay for only 2.06 acres while actually acquiring the full 2.12 acres. Delays in processing, discrepancies, and rent-seeking seem to go hand in hand. It is argued by revenue department officials that these are a consequence of the excessive work burden of the revenue inspectors and registration clerks. This is discussed in the following section. 4.1.3 Land records management Following land settlement and registration, the RORs and copy of the maps are supplied to the Tehsildar who is expected to maintain and regularly update them. However, it is commonly observed that the RI rarely corrects the RORs on time, and mutation cases remain pending for many years, thereby severely compromising the rights and interests of individual land holders. Often inefficiencies arising from poor maintenance of RORs and the field maps increase transaction costs. It is argued that high transaction costs in sale and purchase of land place a disproportionately high burden on the rural poor, and are likely further to depress the land sale market thereby reducing their access to private, arable land. This section examines whether rationalising the responsibilities of the RI and the tehsildar in the course of the computerisation of land records and land registration would be likely to have a positive impact on the efficiency of land administration. While the present system of land record management owes its origin to Todarmal, it was mainly developed under British rule in the 19th century. The colonial administration relied almost entirely on revenue from land and so an efficient land records system was essential to its survival. However, regular updating of land records was rare. In zamindari areas, the intermediaries were only interested in collecting rent. For this part-time rent- collectors (e.g. guntia in Orissa) were hired and there was no systematic system for land records management. Most of the updating occurred during periodic settlement operations. A large proportion of Orissa's land area fell under zamindari tenure and so for all practical purposes, Orissa was a 'non-land record state'. The need to improve and strengthen land revenue administration has long been recognised. As early as 1958, the poor state of land records was identified as one of the important causes of the failure of land reforms (GOI, 1958). Thirty-five years later, the then Prime Minister remarked: Many Chief Ministers have told me that even if they do not expect any money out of land revenue, they would like to see someone to keep the land records because it is a record of rights. If nobody has a record of rights, might becomes right....Whether any land revenue is paid, whether that amount is considerable or not, whether that needs to be collected still or does not need to be collected, ... the maintenance of land records is a must and that has to be done. (Rao, 1992: 6-7) However, constant reiteration in successive Five Year Plans of the need to improve and strengthen land revenue administration and update land records has done little or nothing to arrest their neglect on the ground: 32 Box 8: Would a reduction in stamp duty increase state revenue? Under-valuation of property is as widespread as it is illegal. Section 47A of the Indian Stamp Act (Orissa Amendment) 1962, and its recent amendment of 1987, prohibits under-valuation of documents for evasion of stamp duty. Clear procedures have been prescribed for determination of market value which is the highest price of a particular type (kisam) of land of the village transacted during the last three years. The value of the property being sold or bought cannot be less than the government-determined market value. While the degree of undervaluation is difficult to estimate, revenue officials suggest that fewer than five percent of the documents are undervalued. Villagers in different parts of Orissa are convinced that only about five percent of the cases may be genuinely valued. The main reason for under-valuation is to evade payment of stamp duty which is prescribed as a percentage of the value of the property. Transactors agree to transfer the property at the market price but register a price that is only just higher than the government-determined value of the land. How do they get to know of the government's value of the property? In this, the transactors are assisted by an army of clerks, stamp vendors, and touts hanging around the sub-registrar's office, who have an exact idea of the existing rate for a particular type of land in a particular village. Quite clearly, the information is leaked from inside the sub-registrar's office to enable the transactors to keep the value of the land down, but just above the government's valuation of the property. The prevailing market rate appears to be in the order of 25-50 percent higher than the government's assessment. Table 6 presents two case studies that indicate the extent of revenue loss through under-valuation of property. It is difficult to generalise from limited evidence but it seems that the state is losing at least 25-50 percent of potential revenue from stamp duty and registration fees. Do the transactors benefit by saving the money which would have been spent on paying the stamp duty? Obviously not. The information comes at a price. Table 7 shows the additional, informal costs incurred at various stages of a land sale transaction. These additional costs are approximately equal to the estimated loss of revenue to the state in both cases (Table 6). In July 1997, a Committee of State Finance Ministers recommended rationalisation of rates of stamp duty to reduce hardships and harassment of people. It has been suggested that the rate of stamp duty be fixed within a band of 10.5 percent to be gradually narrowed to 8.5 percent of the value of the land transacted. The Committee recommended that the rate of stamp duty be coupled with proper valuation of property to reduce loss of revenue to the state. GOO has accepted the recommendation of the Committee to set up a Central Valuation Cell under the Inspector-General of Registration to lay down guidelines for proper valuation and assess the value of land in different areas from time to time. However, the extent of corrupt practices surrounding land registration and mutation seemed to have become institutionalised and do not appear to be perceived as 'corrupt' by land transactors. They recognise that the transaction will entail additional costs of about Rs.1,000-2,000 for the purchaser and try to negotiate the price beforehand. Without under-valuation the additional costs to the purchaser would not have exceeded this amount, but at least would have gone to the state exchequer. So why do transactors allow officials to siphon-off money? The main purpose of paying extra for services is to reduce the time spent for each activity. It seems unlikely that rationalisation of rates of stamp duty alone would reduce the extent of undervaluation, and of stamp duty evasion. This is because there are a number of stages where transactors can be at the mercy of officials (Table 7). It is better to 'keep them in good humour' by paying the 'going rate' rather than delaying the process. However, two things might help. One, stamp duty could be levied per area for the particular type of land bought or sold since plot area is more difficult to disguise. Alternatively, a flat rate per transaction may be considered. The latter, of course, has the disadvantage of placing a disproportionate burden on small transactors. Two, extensive computerisation of the registration administration and its link-up with the tehsil computer will reduce the time taken during some stages (shaded areas in Table 7) and thereby, obviate the need to pay 'speed money'. Both options taken together, rather than the rationalisation of stamp duty alone, are likely to increase the state's revenue and reduce the additional costs incurred by the purchaser. 33 Table 6: Loss of state revenue through under-valuation of property Case I: Laderpally village, Sambalpur district 0.6 acre of land transacted @ Rs. 60,000 per acre Sale price negotiated between transactors (P1): Rs. 36,000 Price disclosed for deed registration (P2): Rs. 27,000 (Rs.) Item Expenditure under Loss to the state P1 P2 Stamp duty @4.2% 1,512 1,134 378 Stamp duty surcharge @10.7% 3,852 2,889 963 Registration fee @2% 720 540 180 Mutation fee 8 8 Writing of sale deed 50 50 Endorsement fee 5 5 Incidental expenses 2 2 TOTAL 6,149 4,628 1,521 (25%) Note: * The figure in parenthesis is the percentage loss of revenue to the state. Case II: Badaverna village, Khurda district 0.65 acre of land transacted @ Rs. 40,000 per acre Sale price negotiated between transactors (P1): Rs. 26,000 Price disclosed for deed registration (P2): Rs. 19,500 (Rs.) Item Expenditure Loss to the state Actual Shown Stamp duty @4.2% 1,092 819 273 Stamp duty surcharge* 2,782 1,892 890 Registration fee @2% 520 390 130 Mutation fee 8 8 Writing of sale deed 50 50 _ Endorsement fee 5 5 Incidental expenses 2 2 TOTAL 4,459 3,166 1,293 (29%)** Note: * Stamp duty surcharge, in rural areas, on land value more than Rs. 25,000 is 10.7% and for less than Rs. 25,000 it is 9.7% ** The figure in parenthesis is the percentage loss of revenue to the state. 34 Table 7: Additional transaction costs in the land market Stage Step Person Approx. Additional costs involved time taken . ~~~~~~~ ~~~Approx. Purpose . : ~~~~~~amount REGISTRATION j s : . r S \ = ......... . , . . 7 ~~T o undervalue the Execute Licensed price of land and bring transaction on Vendor Neg. Rs. 50 it in line with the stamp paper prevailing government REGISTRATION rate Tehsildar invites objections to the sale on receipt of Form No. 3 from Tehsildar 2 weeks MUTATION the registrar's office -Patia issued if Revenue 4 weeks Rs. 400-500 For speedy issuance of no objections inspector the patta - If objections Tehsildar 5 years* - * If there are objections from, say, joint owners, a case is registered in the tehsildar's revenue court, in the first instance, for hearing and disposal. Shaded rows indicate activities where computerisation might benefit the transacting agents by reducing their transaction costs. Source: Compiled from field notes. 35 In states like.. Orissa.. there is no system of the annual revision of the record of rights. ..The records are usually brought up-to-date only during re-survey and settlement. As these operations are usually done at very long intervals the records remain out of date most of the times (Appu, 1997: 102-3). Poor land records often lead to: * Difficulty in protecting land rights: Land records specify the rights of individuals and the state with respect to a particular parcel of land. It is difficult to uphold rights if they are not recorded or updated regularly. * Difficulty in targeting development initiatives: An inefficient land records system makes it difficult to retrieve timely information for purposes of policy formulation and targeting of state benefits. * Increase in rent-seeking: Lack of records restricts the flow of information and gives rise to economic rents that may be captured by government officials. * Increase in rural/agrarian violence: While poor land records do not directly lead to agrarian violence, they contribute by making it difficult to enforce rights and target benefits to the poor. * Encroachment of government land: Poor or partial maintenance of land records has led to the steady encroachment of government land. * Uncertainty in conveyancing. An imperfectly maintained land records system increases the costs of all land transactions and prevents the development of a freely functioning land market. * Inability of landowners to access credit: Poor land records make it difficult to use land as a collateral to raise credit in both institutional and informal markets. Various plan documents have recognised these factors, and a conference of revenue ministers on land reforms in 1985 reached a consensus that 'computerisation of land and crop-based statistics should be taken up on pilot basis at tehsilVrevenue-circle level' (GOI, 1985:54). Computerisation of land records (COLR) is now being implemented to redress this shortcoming. It is hoped that it will: * facilitate easy maintenance and updating of changes that occur in the land data base (e.g. changes due to availability of irrigation, natural calamities, consolidation or on account of land transactions); * make land records tamper-proof and indirectly reduce litigation and social conflicts over land; * facilitate implementation of development programmes for which data about distribution of landholding is vital; * assist in planning for infrastructural and environmental development; * produce accurate records for land revenue purposes; * facilitate speedy retrieval of land-related data; * provide a database for the quinquennial agricultural census; and * issue updated copy of RORs to landholders quickly and more cheaply. COLR is a central-sector scheme with full financial assistance from Government of India (GOI). Orissa is the only state in the country in which the scheme is being implemented in all districts. A sum of around Rs. 300 million has been made available by the GOI for three years to cover data entry in the local language (Oriya), civil construction, purchase of hardware, and operational costs during that period. GOO will take over full responsibility for the operation at the end of the three-year period. The scheme is to be executed on a district-wise project basis through the Revenue department. Private firms have been contracted to enter the records in 10 districts27 in the first instance. The target for data entry is 90 27 The districts are: Ganjam, Cuttack, Kendrapada, Jagatsinghpur, Bhadrak, Khurda, Bargarh, Dhenkanal, Angul, and Nayagarh. 36 days per tehsil and work will be carried out simultaneously in all tehsils. Validation of information will be undertaken by the Board of Revenue staff while the data is being entered. But only data entry is to be checked, not the RORs themselves. Training of tehsildars will take place in a phased manner. A computerised land pass book will be provided to each individual landowner to maintain a proper account of land transactions. This will also serve as documentary evidence of rights in land for such purposes as raising institutional credit. Since the project has only recently begun in Orissa it is too early to assess its possible impact. However, COLR was originally mooted during the Seventh Five-Year Plan and some projects were taken up in a few states as pilot projects during 1988-89 to 1991-92. Morena district in Madhya Pradesh was the first to be completed as a pilot project in 1992. In spite of methodological limitations, a recent evaluation report of COLR in Morena (Sinha, 1998) concludes that the programme has: * increased flow of information to the public through improved access to records and an increased awareness of their rights, although this benefit has accrued more to those situated near district or tehsil headquarters; * led to the emergence of the data-entry operator as a new rent-seeking agent; * been responsible for only a marginal reduction in the workload of the patwaris (revenue inspectors); * failed to reduce the rent-seeking behaviour of patwaris because they perform numerous functions besides providing copies of the ROR that are unaffected by computerisation of land records, and because people are loathe to deny the RI (for possible favours in the future) what has now come to be regarded as his due share; a not resulted in better implementation of land reforms; * not led to any significant improvements in land record management; * so far failed to facilitate land transfers; and * not led to any appreciable reduction in land disputes. It should not be concluded from these findings that the computerisation of land records is ultimately likely to prove unsuccessful. Programme acceptance by all levels of the administration through increased utilisation of the database could increase its uptake in the future and increase effectiveness. The evaluation also suggests that the supply of computerised land records should be accompanied by a demand for the records from the farmers. This is likely to happen only when members of the public are aware of their rights, know how to access informnation, and know how to press their claims. Under an initiative of the current Revenue Secretary, a 'User's Manual on Revenue Laws and Rights in Land' has been prepared in Oriya language in order to raise such awareness among land users. It is designed to be user-friendly and to provide simple information in a 'Frequently Asked Questions' (FAQ) format, and will be distributed at a low price (about Rs. 10 per copy) through revenue offices, local panchayats, etc. About 25,000 copies are likely to be produced in the first instance. Inefficiencies in land records management stem from a combination of factors, only some of which computerisation is likely to help address. For example, it cannot reduce inaccuracies in the initial recording of interests in land. The now almost negligible contribution of land revenue to the state budget seems to have contributed to the perception that it is not important to maintain accurate land records. While revenue inspectors continue to collect primary data and to represent the cutting edge of land administration, there has been no addition to the local revenue staff (revenue inspectors, clerks, etc.) to cope with the increase in the volume of work arising from the natural increases in population and land transactions, and no new investment in infrastructure or staff training. Recent years have also witnessed a rapid increase in development work (such as digging bore-wells, installing bio-gas plants, meeting adult literacy targets, etc.) which is often handled by the revenue staff. Taken together, these factors combine to over-burden the lower levels of the 37 revenue administration and results in an inefficient land record management system fraught by excessive delays and high potential for rent-seeking. It is therefore important to examine the working conditions and workload of RIs to identify areas for improved effectiveness. Over the years the scope of Rls' operations has increased both in terms of the area covered and the number of tasks performed. On average, an RI circle in Orissa now covers 20-30 villages28 with an annual revenue demand of about Rs. 200,000. This is nearly 10 times the figure prescribed in the 1961 'Manual of Tehsil Accounts' in which an RI circle was envisaged to have a revenue demand of Rs. 20-25,000 and a tehsil was to cover an area with revenue demand of Rs. 300,000 (Tripathy, 1992). The conference of state revenue secretaries in 1985 agreed that 'the areal jurisdiction of the [RI] should be brought down to a manageable level such as four villages or 3000 khatiyans per [RI]' (GOI, 1985: 53). At the same conference, the revenue minister of Orissa acknowledged that 'revenue administration [in the state] is weak' (p. 15) and needs to be revamped. The RI's primary function is collection of land revenue and maintaining land records. But he is also responsible for a variety of other tasks. These tasks are grouped into four broad categories in Table 8, which also indicates the proportion of the RI's total working time likely to be devoted to each category, according to the perceptions of the Rls interviewed. It is evident that computerisation is unlikely to reduce the time spent by RIs on the collection of land revenue and other dues, miscellaneous enquiries, issuing certificates or attending courts. Computerisation will, however, enable the RIs to concentrate on important matters such as timely submission of reports for disposal of cases, field visits, and correction of records. While COLR is a positive development it should not be regarded as a panacea for improving land administration. Its impact will only be maximised when: * it is accompanied by rationalisation of the RI's workload and of the procedures of revenue administration. It may be appropriate to hire a management consultancy firm to undertake a systematic work-study of the RI. The terms of reference for such a study could include an assessment of the training needs and avenues for promotion of Rls and tehsildars, and decentralisation of some of the tasks; * it becomes more widely used and different government departments use it to transfer information and databases. A computer link, for example, between the sub-registrar's office and the tehsil headquarters would be of considerable benefit to agents transacting in land. It is clear that the computerisation of land records and the computerisation of the land registration system have to be undertaken simultaneously and effectively coordinated for transaction costs to be significantly reduced. A proposal to computerise the registration system in Orissa and integrate it 'backwards' into land records management has been recently been sanctioned by the state government (see Box 9). 28 This is only an average; for example, there are 70 villages within Begunia RI circle, Khurda district. 38 Table 8: Scope of responsibilities of Revenue Inspectors Collection of dues ti4= Issue certificates, Respond to *1 ~~attend courts miscellaneous enquiries attendecourts from the Tehsildar 40% 25% 10% 25% December to March and , l The RI is expected to The RI is responsible for June, is the collection 1~s,~~i' 1e~ s provide information to sending reports to the season in which the RI l concerned departments Tehsildar on: camnps in particular on: . ceiling surplus cases villages. In spite of * income, under the Orissa Land focusing on the post- 0 ~ solvency, Reforms Act, harvest season when * caste status, * mutation cases where collection is likely to be a . - nationality, fraction plots are easy, annual arrears is l . * residence, involved, around 15%. Half of the &. legal heir, u encroachment cases, amount is usually property valuation, lease of goverment pending for more than 3 ~ o~i~n> and lands, years. * professional status * property statements for to relevant departments execution of attachment of sa*rd ~for issue of certificates warrants in Certificate ~.~,..-'to people within the RI cases***, 2111 | | circle. * fire accidents, and y~i~ The RI also attends *naulhzrd '7revenue or civil courts as and when necessary. Sairat sources are those that are auctioned e.g. tanks, mines, etc. * Siha refers to the ledger of petty cash. Sadar siha is the ledger maintained for urban areas. *** Certificate cases relate to late payment of dues. The shaded portion suggests the tasks which might benefit from computerisation of land records Source: Compiled from field notes. 39 Box 9: Computer-aided Registration Administration System (CRAS) The present registration system is manual and dependent upon age-old methods and procedures. The increasing volume of transactions has led to inordinate delays and inefficiencies. Further, documents are subject to decay and the retrieval of documents is laborious and prone to delays. At the same time, valuation of property, essential to confirm that the sale price is not below the prevailing market price, takes a great deal of time in manually searching through the previous three years' records to find the highest value. On the initiative of the Orissa Revenue Department, the state unit of the National Informatics Centre was contracted to develop a proposal for the computerisation of the registration administration system (CRAS) and its backward integration with land records computerisation. CRAS is expected to: * reduce scope for the manipulation of records, and the time required to complete registration; * eliminate the need for Form No.3, and thereby reduce delays, as information pertaining to land transaction may be sent directly to the tehsil computer; * enable the sub-registrar to ascertain the validity of the transaction at the time of registration, by linking to the tehsil computer, thereby reducing subsequent delays and unnecessary costs; and * assist the tehsildar at the time of mutation to ascertain relevant facts directly by means of a link to the sub- registrar's computer for speedier disposal of mutation cases and updating of RORs. Source: Natinal Informatics Centre, 1998 4.1.4 Will reduced transaction costs facilitate land sales and increase access to land by rural poor? To address these questions, we first need to examine the functioning of the rural land market. Why do farm households buy or sell land? And, who buys and who sells? It is conventionally assumed that the full specification and documentation (in the form of assured title) of private rights in land will eliminate risks and uncertainty in land rights and will lead to an active land market. However, a characteristic feature of the rural land market in Orissa, and elsewhere in India, is that the demand for land far exceeds its supply. This is usually because land ownership is one of the principal sources of livelihood security in the villages. No one wants to sell land unless forced to, since 'land prices do not fully compensate for the high risks in parting with this secure asset as evaluated by the farmer. In the absence of integrated financial markets, the transaction costs of investing the sales proceeds in alternative ventures is also far too high. Besides, the externalities of landownership in terms of social status and credit collateral for the owner may not be fully reflected in the land prices in the market.' (Bardhan, 1984: 95) Land ownership is also a major source of prestige and social status. It is estimated that in urban areas of Orissa, nearly 300,000 household heads, mostly employed by the government, each own more than three acres of land in their natal villages. They hold on to their holdings as absentee landlords for prestige29. Until recently, status in urban areas was usually derived not so much from the size of one's village holding, but from the fact that 'food (grain) comes from my village land.' 29 Member, Board of Revenue, Cuttack, personal comm. 40 A recent study on the operation of land markets in a village in Sambalpur revealed that about 70 percent of land sales over the 40-year period 1955-95 were distress sales, i.e. for consumption and debt repayment, medical or marriage purposes, which are highly inelastic (Sarap, 1998). Land sale for investment purposes accounted for between 20 and 33 percent of all transactions for marginal, small and medium farmers, but for nearly half of the land sale transactions of large farmers30. The investment expenditure of the former group was found to represent a form of distress diversification into low productivity, non-farm enterprises31 which required small amounts of working capital. The large farmers, on the other hand, invested the proceeds from the sale of land in purchase of commercial vehicles, building construction, financing higher education, and finding jobs for their children. The research also showed that large farmers: * purchased a larger area of land per transaction compared with other size classes of farmers, suggesting that they enjoyed more ready access to credit; * often purchased productive land in the village, or plots situated near their present landholdings; and * purchased land from everyone - from other large farmers as well as from medium, small and marginal farmers. Swain (1998) reported similar findings on the operation of the land market from a comparative study of an agriculturally advanced and irrigated village in Cuttack district and an agriculturally backward village in Dhenkanal district. All land transactions bar one in the advanced village were for distress purposes: consumption, marriage, loan repayment, replacement of dead bullocks, and funerals. One farmer sold off his unirrigated holding to buy an irrigated plot. In the agriculturally backward village, two out of every three land sale transactions were for meeting the expense of a daughter's wedding. These findings suggest that the land market is underdeveloped and sluggish across different parts of Orissa. It is mostly driven by distress sales, as farmers are unwilling to part with their plots of land under normal conditions. And, it is the large farmers who are the dominant players in the land market, buying productive and better located lands and consolidating their holdings. Discussion in this section suggests a general 'Principle of Joint Requirements' (Lipton, 1998: 4), if access to land for the rural poor is to be enhanced through the market. It seems that lowering the costs of transacting in the land sale market alone may be unable to induce land sales, unless several requirements are met jointly. The total rate payable for stamp duty and registration fees must be reduced. Land records and the registration system need urgently to be computerised and the two systems integrated. The revenue inspector's workload requires a measure of rationalisation. But these steps will have to be accompanied by a number of additional measures. Imperfections in the credit market need to be removed. Non-farm employment and investment opportunities need to be increased. And there will also have to be improved access to education, health and skill formation, if reduced transaction costs are to facilitate land sales and lead to improved access to land by the rural poor. As first steps, GOO should focus on rationalising rate of stamp duty, coordinating the computerisation of land records and registration, and rationalising revenue inspectors' workload. These may not immediately encourage new sellers to enter the land market, but at least the existing transactors would be spared considerable hardship and harassment. 30 Marginal: less than I acre, Small: I - 2.5 acres, Medium: 2.51 - 5 acres, and Large: above 5 acres. 31 E.g. small vegetable shops (in a portion of the house), paddy husking, or spices and vegetable marketing. 41 4.2. Land fragmentation Agricultural holdings do not normally comprise a single compact block but are made up of a number of parcels scattered across the village. The fragmentation32 of operational holdings into multiple plots is commonly perceived to be a serious constraint on agricultural productivity. High direct and opportunity costs in cultivation are frequently ascribed to fragmentation, including: the time and energy expended in moving labor, draft animals, seed, manure and irrigation water from one plot to another, and bringing harvested crops to a common point; supervision of labor; increased expenses of irrigation and drainage; difficulty of access to scattered plots; and loss of land in boundaries (Mearns 1998). State governments have attempted to control fragmentation through legislative means and by encouraging land consolidation, or making it compulsory. This section examines the extent of fragmentation in Orissa, legal provisions to control it, and progress achieved and problems encountered in the administrative process of land consolidation. 4.2.1 Extent offragmentation There is widespread consensus that the rate of fragmnentation of land holdings in Orissa is very high, though the evidence is patchy. This is because there is no systematic compilation of data within the state on the number of parcels per operational holding. These data is collected at the time of consolidation operations, and may even be sent to the Director, Consolidation at Cuttack. But they are rarely aggregated so as to form a comprehensive view of the extent of fragmentation, regional variation, or of the relative success of consolidation. Thus, much of this discussion is based on village studies, National Sample Survey (NSS) data, and informed estimates. The trend in fragmentation over time and across land sizes is shown in Table 9. In 1961-62 there were an average of 6.4 fragments (or parcels) per operational holding across all size classes. By 1981-82, this had fallen to 5 parcels per holding. The average area per parcel has also declined during this period, though marginally, from 0.31 to 0.29 ha. It is evident that the rate of fragmentation is higher in medium and large holdings. In the absence of more disaggregated data, it is difficult to form an accurate view of regional variation in fragmentation. Knowledgeable sources claim that fragmentation is a more serious problem in irrigated and coastal areas than in western Orissa. However, and we discuss below, there is considerable resistance to land consolidation in western Orissa. 32 Fragmentation is defined as the number of non-contiguous plots per operational or ownership holding within a village. 42 Table 9: Land fragmentation in Orissa by operational holding size Size of operational 1961-62 1981-82 holding (ha) No. of parcels per Average area per No. of parcels per Average area per holding parcel (ha) holding parcel (ha) 0.00 1.56 0.002-0.20 2.19 0.03 1.28 0.05 0.21-0.40 3.52 0.08 3.98 0.07 0.41-1.00 4.60 0.14 4.53 0.15 1.01-2.02 6.08 0.23 6.24 0.24 2.03-3.03 8.32 0.28 6.66 0.37 3.04-4.04 9.92 0.34 7.17 0.48 4.05-5.05 10.64 0.42 7.58 0.59 5.06-6.07 9.91 0.53 9.10 0.60 6.08-8.09 12.59 0.53 9.19 0.72 8.10-10.12 11.08 0.80 9.23 0.96 10.13-12.14 15.46 0.65 15.24 0.70 12.15-20.24 10.58 1.53 8.50 1.67 20.25 and above 8.30 2.78 6.51 8.04 All sizes 6.39 0.31 5.02 0.29 Source: Compiled from Thangaraj (1995). 4.2.2 Legal provisions and progress of land consolidation in Orissa Consolidation of land holdings is designed to reverse fragmentation through a scheme of redistribution of lands in compact rectangular blocks33. The Orissa Consolidation of Holdings and Prevention of Fragmentation of Land (OCH & PFL) Act, 1972 aims to provide a compact parcel of agricultural land to the cultivator in lieu of his scattered plots. In this scheme, the fragmented patches of landowners are brought under one, two or three chaks and the right, title and interest of a landowner is decided in the preparation of ROR and village map. Simultaneously, a separate category of land is reserved for communal and developmental purposes of the village. The Act also aims to set aside land for drainage canals in irrigated villages while in unirrigated villages, farmers are encouraged to utilise groundwater resources. Tables 10 and 11 provide an indication of the progress of land consolidation operations in Orissa since 1974 when the OCH & PFL Act was operationalised. These data suggest that land consolidation has so far been completed on only 17 percent of the total operated area in Orissa. Some 1 1 percent of this total was consolidated over the period 1995-98 at a cost of Rs. 626 million (Table 11), or around Rs. 6,000 per hectare. However, these official data must be interpreted with caution owing to wide variations in actual implementation across the state. Efforts to consolidate land holdings in western Orissa, in particular, appear to have unsuccessful (see section 4.2.4). While the process may be have been 'completed', in the sense that consolidation officers have processed the necessary paperwork and filed reports under the OCH & PFL Act, little change may actually have taken place on the ground as farmers frequently refuse to exchange plots or alter existing plot boundaries. 33 While some regard land consolidation to be a potentially important component of India's land reforms (e.g. Oldenburg 1990), others argue that land consolidation does not constitute land reform on the grounds that it usually attempts scrupulously to ensure that land distribution remains unchanged. 43 Table 10: Progress of land consolidation in Orissa, 1974-98 Status Number of Share of total no. Area (ha) Share of total villages villages in Orissa operated area in (%) Orissa (%) Excluded from consolidation u/s 686 (6.9) 1.3 132,318 (8.1) 2.5 5(1) Updating of records and 426 (4.3) 0.8 101,281 (6.2) 1.9 publication u/s 13 (4) Completion of consolidation 6992 (70.5) 13.7 918,020 (56.6) 17.3 operation and publication of ROR and Maps u/s 22(2) Consolidation operation yet to 1817 (18.3) 3.6 471,594 (29.1) 8.9 start Total (i.e. issue of notification u/s 9921 (100.0) 19.4 1,623,213 (100.0) 30.6 3(1)) Note: Figures in parentheses are percentages of the total Source: Director (Consolidation), Board of Revenue, Cuttack Table 11: Progress and expenditure in land consolidation in Orissa, 1995-98 1995-6 1996-7 1997-8 Total Progress u/s 22(2) No. of villages 184 257 213 654 Area (ha) 22,414 40,725 36,735 99,874 Progress u/s 13(4) No. of villages 11 28 74 113 Area (ha) 3,803 8,990 14,784 27,577 Total expenditure 18.67 21.33 22.61 62.61 (in Rs. Crore, at current prices) Source: Director (Consolidation), Board of Revenue, Cuttack 4.2.3 Process of consolidation The land consolidation process is designed to amalgamate plots into consolidated blocks while maintaining more or less constant land distribution within the village, and taking into account broad variations in land quality. The selection of villages for consolidation and broad operational procedure is as follows: Village selection and local representation: Under the OCH & PFL Act, a consolidation operation may be taken up only in those villages in which a minimum of 70 percent of all landowners agree to consolidation. In addition, it is required that at least 25 percent of owners should have more than 3-4 plots per holding. If these two conditions are met then the village is said to be 'consolidable'. The Act also provides for a Consolidation Committee to be formed in the village to ensure local participation in the consolidation operation. The committee should comprise 7-15 members representing all land holding size classes, plus one landless person 44 and one member each from the scheduled castes and scheduled tribes34. An advisory committee is also to be formed at the range-level to ensure the smooth implementation of the programme, and should include the local MLA. At the outset, government consolidation officers hold meetings with landowners to explain the potential benefits of land consolidation, the main provisions of the OCH & PFL Act, and the manner in which their interests shall be represented. Villagers are then called upon to nomini-e the names of people for the committee. In practice, there tends to be extensive public involvement in the plains and coastal areas in which a high proportion of the operated area is irrigated, but much less involvement or commitment in the hilly tracts of western Orissa. Survey and correction of existing RORs: Consolidation is carried out within the circle of a particular police station. Eventually all villages within the circle are covered. The first step is to conduct a plot-to-plot survey of the village area (similar to the process followed in a survey and settlement operation), beginning in the north- west corner of each village and ending in the south-east corner. The existing RORs are then updated. Following the initial survey, if it is determined that there is too little cultivable land to make land consolidation worthwhile, the operation does not proceed further (i.e. these villages are placed under section 13(4) of the Act). Consolidation of holdings: There are two alternative processes of consolidation, depending on the type of terrain: (i) rectangulation, where the entire area to be consolidated is flat and irrigated (as in parts of Ganjam district); and (ii) amalgamation, where there is undulating terrain (as in Khurda and Sambalpur districts). Under the amalgamation process, the model pioneered in Uttar Pradesh is adopted, in which relative scores are awarded to plots on land of differing quality, subject to agreement among members of the local consolidation committee (Oldenburg 1990). In this process, the land that is locally agreed to be of highest quality is given a score of 100 and declared the 'standard plot'. The relative value of all other land is assessed in relation to this standard plot, and awarded proportionately lower scores. Each landowner's total holding is then calculated as a weighted area; the weightings determined by the relative scores allocated to land of each type. Following the assessment of the value of each landowner's original holding, the consolidation officers draw up proposals for plot reallocation and amalgamation. The entitlements of individual landowners are decided by 'sector' (normally following natural boundaries within the village). For example, if a farmer originally holds plots in five sectors, his or her claim is eliminated from the two sectors in which s/he has the least land. The aim is that each landowner should end up with a holding of a weighted area within +/- 33 percent of the original weighted holding size, but the new holding should be made up of not more than three individual plots. At this stage, land is also set side for communal use (roads, canals, etc). Finally, provided there is local agreement, land holdings are reallocated, and the revised RORs and village maps prepared in accordance with the agreed scheme. The OCH & PFL Act specifies a minimum period of 27 months for the completion of land consolidation in a given village, although it normally takes much longer. It takes about five years to consolidate land in all villages within one police station circle. 4.2.4 Failure of consolidation in Sambalpur In order to gain further insights into the manner in which land consolidation is conducted in practice, and with what consequences, we conducted a short field investigation in several villages of Sambalpur district. On 34 Note that this level of representation is lower than the proportionate share of the total population accounted for by people of scheduled castes and tribes (16 and 22 percent respectively). 45 average, there are about 7.5 plots per holding in 93 villages in the four tehsils for which data was made available. The averages mask wide variations in the extent of 'scatteredness', however. In Talab village of Rengali tehsil, for example, there were 14.5 plots per holding prior to the start of the land consolidation operation. A total of 146 villages falling under six police stations were taken up for consolidation after the promulgation of the OCH & PFL Act, 1972. One village failed to satisfy the minimum conditions for consolidation to proceed, and landowners in a further eight villages failed to cooperate with the proposals for land reallocation following the preparation and publication of the land register. As a result, consolidation operation in these 8 villages had to be called off. At the time of our survey, land consolidation had been completed in 134 of the remaining 137 villages, and is ongoing in three villages. Of the 134 villages in which the operation had been completed and pattas distributed, however, landowners in 47 villages (35 percent) have refused to take possession of the new holdings, since they are unwilling to undertake the large-scale exchange of plots that would be required to effect the consolidation process. Some of these villages are located at the tail-end of the Hirakud irrigation system where there is considerable fluctuation in water availability. It appears that landowners do not have confidence in the way the proposals were prepared in practice, and fear that the method adopted has not adequately taken account of variations in land quality (see Box 10 for a more detailed village case study). In spite of the undulating terrain and widely varying soil types, 75 percent of landowners have been allotted land in a single compact block (chak), and 20 percent in just two chaks. Only five percent households have been allotted land in three chaks. Diversification of holdings across land types is regarded by local farmers as essential under the prevailing cropping systems. It is suggested by informed observers that such conditions, accounting for much of the local resistance to land consolidation, are typical of the hilly tracts of westem Orissa. 4.2.5 Resistance to consolidation In summary, resistance to consolidation may arise from: * predominance ofpaddy: In undulating tracts, paddy is grown on terraced fields which need to be flat and require a bund to retain water. It is obviously easier to level and maintain smaller plots than one large fragment. Further, given the labour-intensive nature of paddy cultivation, the farming efficiency of small fields can be high, given the low opportunity cost of family labour in circumstances of limited non-farm employment potential; * variability in soil types: As the case study from Sambalpur highlights, there can be a sizeable variation in output per plot due to soil quality and farmers with plots in fertile and well-drained soils are reluctant to exchange them for fewer fragments on poorer soils; * need to spread labour: Diversification between plots reduce peaks in labour demand throughout the year, on the expectation that crops in different plots may be at different stages in the cropping cycle at any given time. This explanation is less plausible where cropping cycles vary little between plots, and with use of modem seed varieties and irrigation; * risk aversion: This seems a valid reason for persistence of fragmentation in unirrigated tracts where different soils have different moisture-retention capacities. Holding a diversified portfolio of land parcels can enable the farner to minimise the risk of low yields in the worst years; 46 Box 10: 'We do not intend to move': resistance to land consolidation in Laderpally village, Sambalpur The resistance to land consolidation that arises in villages of extreme heterogeneity in land quality are exemplified by the experience of farmers in Laderpally village, in formerly undivided Sambalpur district. Land here is rocky and undulating and initial holdings were highly fragmented. Soils are generally deficient in nitrogen and phosphate. Cultivated land is classified locally into the following five categories, in ascending order of fertility: Land category Local name Share of area (
Groupe de la Banque mondiale · Policy Research Working Paper
印度奥里萨邦的边缘人群与土地管理
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