PUCL, September 2003

Enquiry report - PUCL Dumka, Jharkhand Unit
Pachwara coal mining project

Team: P.A.Chacko, Secretary PUCL, Dumka Unit
Ananat Hembrom, Member
Md.Rehman, Member&
Mr.B.N.Upadhyaya, Member

Dates: Feb.25 and March 11,2003

I. Background
1. It was reported in the local media, around May 2002, that a coal-mining project was granted to the Punjab State Electricity Board (PSEB) in the Scheduled Tribal area in Amarapara Block in Pakur District in Jharkhand, Eastern India.

2. Subsequent to such reports the media also began reporting resistance from local tribals to the Project. In the monthly meeting of PUCL Dumka Unit, on February 08, 2003, the members reflected upon the issue and, understanding the seriousness of the matter, passed a resolution to go into an on-the-spot enquiry to cull the facts concerning the issue. Secretary, P.A.Chacko, was authorized to form the enquiry team. Acting on the resolution to make the enquiry report on the proposed Coalmining Project, P.A.Chacko and member Anant Hembrom met Sri. Dinanath Sharan, Officer representing the Punjab Electricity Board, at his office at Amarapara on 25.02.2003.

II.Facts from PSEB
3. From the information gathered from Sri. Sharan the following facts emerged. He is the representative of the Punjab Electricity Board and is posted at Amarapara in the capacity of Executive Officer to execute the Project on behalf of PANEM Coal Mines Limited. The PSEB is a ‘public utility service’ wholly owned by the Government of Punjab. By a letter of the Ministry of Coal and Mines (Department of Coal), letter No. 47011/1(4) 2000- CPAM dated 26th December, 2001, Pachwara Central Block was allotted to the PSEB for captive mining for supply of coal on an exclusive basis to its own power plants.

4. The PSEB formed a Joint Venture Company, PANEM Coal Mines Limited, with Eastern Minerals and Trading Agency (EMTA) to produce, supply, transport and deliver coal from the coalmines of Pachwara Central Block, exclusively to PSEB thermal power stations. According to Gazette notification, by the Ministry of Coal and Mines (Department of Coal) F.no.38011/4/2002 CA, dated Feb.22, 2002, the Central Government specified “as an end use the supply of Coal from the Pachwara Central Block by PANEM Coal Mines Limited on an exclusive basis to the power plants of Punjab Electricity Board for generation of thermal power.

5. The Government has surveyed and delineated the whole area covering 41 square kilometers with demarcated divisions such as North, South and Central Blocks. Pachwara Central Block is given to PSEB. This Block measures approximately 13 square kilometers covering nine revenue villages (mouzas) such as Singhdehri, Taljhari, Kathaldih, Chilgo, Bisunpur, Dangapara, Amjhari, Liberia and Pachwara.

6. It is estimated that Pachwara Central Block holds 562 million ton of coal reserve. Out of this reserve it is proposed that in an area of approximately 13 square kilometers open cast mining will be done in 11 square kilometers. The following descriptions of land will be affected/ utilized by the Central Block:

i) Raiyati land: 640 hectares
ii) Forest: 360 hectare
iii) Homestead: 2 hectares
iv) Waste land: 15 hectares
v) Nala, River: 34 hectares
vi) Road: 28 hectares.
vii)Grazing land 22 hectares

7. The Central Block envisages 44 years of open cast mining to extract 289 million tons of coal. The Jharkhand Government is expected to get annual royalty at the rate of Rs. 100 crores. It is also estimated by official figures that within next 10-15 years 250 families will be displaced and ‘afterwards possibly more”.

8. The PSEB has worked out a rehabilitation Package. The details are as follow:

1. Monetary Compensation calculated on the basis of prevailing legal norms.
2. The Company may consider employment against land in exceptional circumstances only to fill vacancies subject to the land losers meeting the eligibility criteria.
3. Employment may be offered to one member of a family who has lost three or more acres of land subject to vacancy and eligibility criteria.
4. If not possible to offer employment due to lack of vacancy one time cash grant/ monetary compensation in lieu of employment for acquisition of land on following basis shall be applicable.
   
5. Rs.50,000/- only for the first acre of land on pro-rata basis subject to a minimum of Rs.20,000/- only
6. Rs.30,000/-only on pro-rata basis for 2nd and 3rdc acre of land
7. Rs.20,000/- only on pro-rata basis for land beyond three acres.

Note: It is stressed that a person receiving a job forgoes all claims to above compensation and a person receiving above compensation forgoes all claims of employment.(Vide Resettlement and Rehabilitation Policy, p.10)

9. The Company plans to propose to the State Government to allot land for a market place and for cultivation/agriculture. The Company will collaborate with the State Government to provide water for irrigation of this land. Land will be offered to the oustees as per guidelines of the State Government. The Company also thinks the displaced persons can get employment under contractors, and opportunities for self-employment. The displaced person who gets homestead will be given alternate house site measuring 100 sq. mt. per family and assistance in shifting and designing the new house and a shifting allowance or a one time lump sum compensation of
Rs. 50,000/-

10. Promises are also highlighted as regards to roads, street lights, primary schools, play ground, ponds, pucca drains and sanitation, dug well/drill well, community center, market place, place of worship, dispensary, grazing land for cattle.

11.In the said package, land for land will be given only for homestead needs. As for agricultural needs, the Company argues that it will ‘approach’ the State Government for all allotment of ‘vested’ land for cultivation by the tribals.

12. Sri. Sharan made it known that to his knowledge and belief, except for a very few persons who mislead the people, the affected people are ready for receiving rehabilitation package.According to him there are no Gram Sabhas existing in the proposed Project Area.

III. Facts from the Deputy Commissioner, Pakur
13. On March 11, 2003 the PUCL team met the Deputy Commissioner of Pakur, Sri. Kamal Kishore Sone to get his version of the matter. According to Sri. Sone, development is the need of the hour. Which means displacement of people cannot be ruled out. On the part of the Government, land has been acquired through notification and mining has to be done. He expressed his ‘concern’ for the affected people by saying that his sentiments are with them and, therefore, he would see to it that they get a just and fair deal in rehabilitation. He is wary of dalals and third parties who may want to act as self-styled middlemen strutting as spokespersons.

14. According to Sri. Sone, the Government is legally within its power to acquire land for specific purpose given the Land Acquisition Act. Hence, what is done in Pachwara is perfectly o.k. as he sees it. The team pointed out to him that there are certain provisions in Santal Parganas Tenancy Act,1949,(SPT Act.1949) prohibiting transfer of raiyati land. For example, S.20 prohibits transfer of a raiyati holding through sale or mortgage or lease or any other agreement.

And S.41 prohibits settlement of vacant holding and wasteland in a Paharia village with a non-Paharia.

15. When asked by the team: Will not the implications of Section 20 and 41 of the SPT Act, 1949, put a bar on transfer through lease to a non-tribal ‘person’, natural or juristic, he said, he was of the opinion that land can be given on lease. Incidentally, as Deputy Commissioner of the District, he okays leaseholds for stone quarrying on raiyati lands in Pakur, which, according to his own words, he finds perfectly legal.

16. When further asked whether Samatha judgment (1997) would not put a bar on transfer to non-tribals in scheduled tribal area, he responded by saying that Balco Judgment overruled Samatha judgment. Thus, given his understanding, what the Government is doing is perfectly legal and necessary for development.

17. When asked why people are resisting displacement if it is a matter of development, Sri. Sone answered by saying that if they have grievances, it is for them to approach him to sort out matters. The team members pointed out to him that the people expect him to meet them at a convenient place where all the affected people can gather and he could listen to them and get first hand information. Sri. Sone said he was ready to listen to them but stressed that they should respect his authority as the District Head and, hence, he expected them to meet him in his office and then he would willingly listen to their representatives or even to all of the affected people if they come to Pakur. Was it possible for such large crowds of people to leave their homes and come to Pakur, a distance of 60 kilometers? The Deputy Commissioner expressed his willingness to arrange conveyance for their transportation. Or was he sounding a caution? Given the tense situation at Pachwara, would the administration dare to step in where angels fear to tread by going to the home turf of the tribals?

IV. Facts from the people of the affected area
18. The PUCL team also directed its steps to the people’s turf to hear their version at their doorstep. Approaching the people in Pachwara locality was something of a heroic attempt. We were warned that roadblocks and tense atmosphere would greet us. In spite of initial hesitations and suspicions, which the tribals of the area harbour towards any outsider, we managed to get an audience with Sri. Bijoy Hembrom, the Pargana of Alubera Bungalaw and Sri.Cornelius Hembrom, Headman of Pachwara village. Almost two hundred men and women gathered instantly as if materializing from nowhere.

19. What the team perceived was one of subdued tension in the atmosphere and anger in the minds of the villagers. In the course of our conversation a clear picture emerged as to the why of this tension and anger. “We have been living here fore long. Our forefathers Sido and Kanhu and their followers sacrificed their lives and won for us freedom from oppression and gave us an identity.” said Pargana Bijoy Hembrom. (The Pargana is the head of a number of villages under one Bungalow). “And all of a sudden, like a bolt from the blue, we hear that someone is coming to enter our premises and oust us as if we are encroachers and criminals. Can any one do that? We shall live here and shall die here. No power on earth can make us move out. Or they will have to kill us all?” Headman, Cornelius Hembrom, pointed out that although by and large the villagers are illiterate, they are conscious of their rights and are getting organized. They are well conversant with the tenancy laws, which protect their land from alienation through sale, mortgage, lease or transfer. They have also formed Gram Sabhas under the Provisions of the Panchayat Raj Act (Extension to the Scheduled Tribe Area).

They are aware that their Gram Sabhas, under the Indian Constitution, are village republics vested with Constitutional rights and powers, a factor which the Government is overlooking by not consulting them in the planning and programming of development projects. Consultation of the Gram Sabha is mandatory as the villagers very aptly pointed out. When asked why they do not want to dialogue with the Government, they vehemently said: If it is the Government’s need to get land from us let it come to us. It is not for us to go and knock at their doors. It is not our need. With that the people were trying to make it clear that at no point of time would do they want to direct their steps to Pakur to talk to D.C. They also pointed out that it was not a question of a few people discussing the issue. The whole issue has to be sorted out in the presence of all the affected people and that too at their home turf. If the D.C. would make it a point to meet them at a convenient place near their homes they would willingly meet him and then a dialogue would be possible.

20. As far as the villagers are concerned, they have formed themselves into an Organization called Rajmahal Bachao Andolan. And they are of one mind in not wanting to move out of their land, come what may. They would not even want to hear of any rehabilitation plans. They know fully well the implications of the Tenancy laws of Santal Parganas. Even they, as tribals, cannot buy land anywhere in the Santal Parganas Division. As it is, under the rehabilitation package, only homestead land is proposed. Such a package will be totally unacceptable to the people even if they are willing to move out. They also know that elsewhere in Santal Parganas, at Lalmatia and at Chitra, collieries have displaced and decimated tribals and most of the promises of rehabilitation remained only on paper. They also speak of Mr. Sharan who has pitched his tent at Amarapara. According to them he was the executive officer in Lalmatia and Chitra and the rehabilitation programme under him, they say, was but a mirage. So these villagers are not ready to trust him or anyone for that matter.

21. The headman Cornelius summed up the overall mind of the people: 'We too believe in Development. If at all the minerals have to be extracted from our fields, we will do it ourselves when are we are capable, when our children have grown up and educated and when, as a community, we are able to manage the affairs.”

22. At the moment tension, coupled with anger, is in the air. Some dalals, according to the villagers, sneaked into the villages and tried to win over people by tempting them with country liquor. When detected, they were brought before the Village Council, as per traditional custom, and were warned not to indulge in such criminal activities and were sent way with an injunction not to enter that area for such anti-social activities. They, in turn, went and filed cases, allegedly instigated by vested interests, implicating people in kidnap, attempt to murder etc. As a result the villagers allege police harassment even by entering their homes at unearthly hours even when only women are at home. The police, they say, are waylaying innocent villagers, including teenagers, on their way to markets or work places and arresting them. They also allege that some tribal dalals fake police voice through telephone and create commotion. Therefore the villagers have resorted to self-defense tactics. They do not expect outsiders to enter their area. Only known visitors with prior information may be welcomed as friends. As a result even Govt. officials and PSEB functionaries are sitting on the fence with fingers crossed.

V. Implications and interpretations
1. Socio-cultural
2. Legal

1. Socio-Cultural
23. Socio-Cultural: The tribal community is a cohesive community with its communitarian mode of living, interaction and decision-making. It depends on a life close to nature with its rivers and forests, with agricultural fields and grazing lands, places of communitarian gatherings for festivals and village functions. It also has its ancestral abode right in its midst. It is in this socio-cultural phenomenon they live and conduct their affairs. Their homes may be mud walled and grass roofed but they have a beauty and functional practicality of their own. Unlike pucca concrete houses, their thick mud-walled houses are air cooled throughout the year. Compare them with the matchbox model Indira awas constructions the poor tribals are given without any concern for environment and climatic variations.

24. The tribals depend on agriculture. The apex Court in its Samatha Judgment (1997) very aptly pays homage to the agricultural life style of the tribals: ‘Agriculture is the main part of the economy and source of livelihood to the rural Indians and a source and succour for social status and a base for dignity of person…Land is their most important natural and valuable asset and imperishable endowment from which the tribals derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source for economic empowerment. Therefore, the tribes too have great emotional attachment to their lands. The land on which they live and till assures them equality of status and dignity of persons and means to economic and social justice and is a potent weapon of economic empowerment in social democracy.’ (Civil Appeals Nos. 4661-02 of 1997, SAMATHA VS THE STATE OF A.P. AND OTHERS, with civil appeal nO.4603 OF 1997, Paras: 9 & 10).

25. This is the very factor to which the tribals give prominence. If in the event of their being displaced from their land even in the name of National development, if they are not given equivalent land for land, it will be cutting their very roots and denying them the right to live with the dignity of a human person. Bereft of land for agricultural purposes, a tribal is a lost entity in the world of cutthroat competition and rat race. The simple tribal with his humane and socialist values of communitarian living and acting, is alien to a world with its one-upmanship trend. Business he is unaccustomed to. Bargaining is alien to him. For him two plus two is four not, three or five. In a world, which thinks and acts otherwise, what is the tribal going to do even with a pot of money. Nor has the Nation, over five decades of our independence, prepared him with education and orientation to vibrate with the fast moving world. The outside world talks of development and he is asked to ‘disinvest’ his only life support, his agricultural fields, in favour of those who want to extract gold out of his fields for their own profit in the name of so-called development. He is expected to step out of his homeland, which he tended with love and care by clearing jungles and thickets, by braving wild animals and malarial mosquitoes. Step out he must to make room for those who want make a fast buck.

26. At this stage he asks just one question? Where am I to go? What am I to do? Get a strip of homestead land and look up and swallow air for sustenance? Is it my fault that there are minerals beneath my fields. If they need to be extracted, why don’t you allow me to it myself. Or why don’t you become, at the least, a partner with me. You take half the profit for your financial investment and I take half the profit for the asset of my land and its resources. Such are the questions the tribal today asks in his own simple and inimitable style.

2.Socio-legal
27. Where does the law stand in all this ? Under the framework of the Constitution and, in line with the spirit of The Government of India Act, 1935, which categorized the ‘Tribal Areas” as Excluded Areas, special provisions were made in a separate schedule, namely the Sixth Schedule of the Constitution for administration with special powers. Other tribal tracts, categorized as ‘Partially Excluded Areas’ were christened Scheduled areas placing them under the Fifth Schedule of the Constitution. The Fifth Schedule covers comprehensive provisions to protect the tribals of the Scheduled Areas ‘against the State as also other exotic forces.’ As Dr.B.D.Sharma very well points out, the raison d’etre behind this was Nehru’s Panchsheel which enunciated:

1. People would develop along the lines of their own genius and we should avoid imposing anything on them. We should try to encourage in every way their own traditional arts and culture.
2. Tribal rights in land and forest should be respected.
3. We should try to build up a team of their own people to do the work of administration and development. Some technical personnel from outside will, no doubt, be needed, especially in the beginning. But we should avoid introducing too many outsiders into tribal territory.
4. We should not over administer these areas or overwhelm them with a multiplicity of schemes. We should rather work through, and not in rivalry to, their own social and cultural institutions.
5. We should judge results, not by statistics, or the amount of money spent, but by the quality of human character that is evolved.

28.“The Fifth Schedule constitutes ‘an integral scheme of the Constitution with direction, philosophy and anxiety to protect the tribes from expropriation. Its objective is ‘to preserve tribal autonomy, their culture and economic empowerment to ensure social, economic and political justice for preservation of peace and good government in the Scheduled Areas. All actions of the State must be in furtherance of the above Constitutional objective and dignity of persons belonging to the Scheduled Tribes, preserving the integrity of the Scheduled Areas and ensuring distributive justice as an integral scheme thereof. The executive in the name of the Governor stands vested with all the necessary powers, perhaps more, for achieving the aforesaid objectives.”(B.D.Sharma, The Fifth Schedule, Vol.1, p.56. Publn.Sahyog Pustak Kuteer Trust, N. Delhi)

29. Santal Parganas Division of Jharkhand State falls within the Scheduled areas under the 5th Schedule of the Constitution. In order to protect the tribals in this Scheduled Area and to put them on the road to genuine development, in line with their socio-cultural set up, appropriate legislative provisions in the Santal Parganas Tenancy Act, 1949, have been provided for. Their traditional village administration under their traditional tribal head, MANJHI/PRADHAN, has been given a legal status under the Act. Further, the rayats of Santal Parganas are protected from land alienation. Section 20 stipulates: No transfer by a raiyat of his right in his holding thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied shall be valid... Further Section 41 provides: No vacant holding and no wasteland in a Paharia village the within Damin-I-Koh Government Estate shall be settled with a person who is not a Paharia. The SPT Act guides further settlement of wasteland, nala, river, grazing land and road. under Sections 27, 28, 35 and 36. Under Section 33 wasteland settled must be brought under cultivation within five years. Otherwise it reverts, meaning thereby that settling of wasteland is only for agricultural purposes.

30. Leaving aside Samatha Judgment and Balco Judgment, The Santal Parganas Tenancy Supplementary Provisions) Act, 1949 is a potent weapon to protect triblas from alienation.

31. Against this background one has to view the transfer on lease by the Jharkhand Government the land in the Scheduled Area in Pakur District to the Punjab Electricity board to do business. 640 hectares of raiyati land, 360 hectares of forest, 2 hectares of homestead land, 34 hectares of river and rivulets, 28 hectares of road and 22 hectares of grazing land for the Central Block alone, covering approximately 13 square kilometers. In addition the Government has acquired another 28 square kilometers of land to constitute two other blocks (North and South) for coal extraction.
The Government’s view is that it has the power to acquire land for a ‘specific purpose’. Granted that acquisition is within legal limits, the question to ask is what is specific purpose? It can reasonably acquire for its on purpose, say for the railways, or for public utility service under its control. But then when the Government acquires the land in the tribal area to hand it over to a non-tribal juristic person on lease, legal experts opine that the Executive is overstepping its authority without any legislative sanction. Section 20 of the SPT Act clearly bars any lease.

The act of taking away tribal holdings under the Land Acquisition Act and then making it over to an outsider and a non-raiyat on lease, is but an act of flouting the provisions of the Santal Parganas Tenancy Act under the so-called ‘legal garb’. Under the existing law even a rayiat or a land holder in the scheduled area of Santal Pargans cannot take or give on lease any rayiti holding.

32. It will be pertinent to point out that even the Government was seized of the gravity of the situation after the historic Samatha judgment in Civil Appeal nos. 4601 and 4602/1997. Interpreting ‘person’ to include the Government, and transfer of immovable property to include ‘the prospecting licenses and mining lease’, the Apex Court ordered that all transfers of land belonging to the State Government at any time in the past or present in the scheduled area of Andhra Pradesh, to-non-tribals, and of mining leases/prospecting licenses whenever granted by the State Government in such areas to non tribals were absolutely void and impermissible and all mining operations in the Schelued area of A.P. by industrialists be stopped forthwith. The Supreme Court also directed that if similar acts in other States do not totally prohibit grant of mining leases of the land in the Scheduled areas, action would be initiated by the State Government for similar enactments. (Para 130)

33. It is interesting to note that immediately thereafter, the Government of India, Ministry of Mines issued a directive note, dated 10th July, 2000( Vide No.16/48/97-M.VI) to the Committees of Secretaries pointing out that “The majority view in the Samatha case has virtually re-written the Fifth Schedule to the Constitution by making it mandatory for the Governor to make regulation prohibiting the State Government from transferring its lands to non-tribals.” (Vide Para 10)

34. Following the Samatha Judgment The National Commission for Scheduled Castes and Scheduled Tribes dispatched a letter to all the Deputy Commissioners of Santal Parganas Division pointing out directives of the Honorable Supreme Court in the Samatha Judgment ‘for your information and necessary action.’ (No.6/5/2000 ESDW-II, dated 10.01.2001)

35. It is further to be noted that nearer home in Santal Parganas Division, the then Divisional Commissioner, Smt. Mary Kachhap, IAS, wrote to Sri.M.M.Banerjee, Advocate General, Jharkhand, Ranchi. dated 27.04.2001,Memo no.71/Res. the following: “ . . .from the documents enclosed it is apparent that a perpetual and grave contempt of the Honorable Supreme Court Order dated 11.07.1997 given in Civil Appeal nos.4601-4602/1997 is being committed by not following the clear and unambiguous order of the Honorable Supreme Court and therefore it is stated that all mining operations in the Scheduled Areas of Santal Parganas Division especially those in the Scheduled Areas of the districts of Pakur and Sahibganj must be stropped forthwith. It is also observed that the State Government must immediately take Policy decision and issue necessary orders for urgent compliance of the directions of the Honorable Supreme Court of India.” (No.71/Res.)

36. The only exception the Apex Court has made in the Samatha Judgment is transfer of land in the Scheduled area to Cooperative Societies composed solely of tribals or mortgage of the land to a Cooperative and Mortgage Bank registered as an instrumentality of the Sate or any Government approved lending agency to improve the agricultural lands or sale to an agent of the Government. (Para 48)

37. Taking umbrage under the recent Balco Judgment by the Government Executive authority or by the PSEB Executive Officer does not carry any weight. Among other things, the Balco Disinvestment Case, (Transferred Case (C) No.8 of 2001(with T.C.© Nos. 9 & 10 of 2001), D./- 10.12.2001, AIR 2002,SC.350, BALCO Employees Union Regd. Petitioner vs. Union of India, Respondents), pertained to the question whether transfer of tribal land by way of lease to non-tribals was permissible. The Apex Court ruled that “This was clearly permissible under the provisions of Section 165(6) M. P.Land Revenue Code,1959) as it then stood.” Hence, leasing was possible within the parameters of the law as it existed then in M.P. This provision and its interpretation have no bearing whatever on S.20 of the Santal Parganas Tenancy (Supplementary Provisions Act, 1949) which clearly stipulates that no transfer of raiyati land can be had by way of sale, mortgage, lease or any other contract or agreement.

VI. The development debate
38. Now the question is one of development. The Government says it is the National development. In the interest of the National development displacement cannot be ruled out. even if it means uprooting the triblas from their age-old traditional moorings and scattering them to fend for themselves. Dams have to be built, minerals have to be extracted and wild sanctuaries have to be established.

39. The Pachwara tribals too speak of development. They are not averse to development. They too are for it. But their idea is borne out of ground realities. Their right to existence. Right to life. Right to land and resources. They speak of the great struggle their forefathers Sido-Kanhu and others fought in the then Kohisthan against the British Raj and its exploiting agents and how they liberated their land in then historic Santal Hul(Insurrection) of 1855 and got the area named as Santal Parganas District.

A. Historical Perspective

40. At this juncture, it is imperative that a historical perspective is attempted on the indigenous settlers and their settlement complexities. The earliest inhabitants of the Rajmahal hill Range area are historically said to be the Sauria tribals of Dravidian origin. The Rajmahal Hill Range runs along Santal Parganas as a north to south nerve center covering a distance of 150 kilometers. The range is a depository of minerals of different varieties. As early as 302 BC. the existence of the Saurias was recorded by Greek traveler and historian Megasthenes who described them as Maler of Kohistan as the land was then known. Today the Paharias call themselves by the same appellation, Maler. It goes to their credit too that they were the earliest group to resist the wanton intrusion of the British into their safe and secure sanctuary. Under the leadership of Ramna Aharia a revolt against the white man was unleashed through guerilla fighting in 1776 A.D.

41. Faced with the threat of the indigenous people, the British, with ulterior motives, began to encourage migrating Santal tribals to gain access into Kohisthan. From Orisa, Dalbhum, Barabhum, Manbhum, Chotanagpur, Hazaribagh, Bankura, Palamu and Birbhum the Santals trickled in. They were in search of greener patures. With tactical patronage form the British, the trickle became a flood to the consternation of even the British. The new immigrants soon put their pastoral and agricultural skill to effective use by clearing forests and converting them into fields and farmhouses. They were a force to reckon with by the fag end 18th century. But alongside this extension of patronage, the British also encouraged traders and moneylenders from neighboring Bengal to pitch their tents in the area.

Extortion by these hordes, corruption by revenue and government officials, alienation of land into non-tribal hands etc. paved the way for sprouting discontent among the Santals. Suffocated by injustice and oppression from all sides visionary leader Sido of Bognadih village near Barhait sent a clarion call to all the Santals to get organized and rise up in arms. His other brothers Kanhu, Chand and Bhairav and his sisters Phulo and Jhano too joined him to give his leadership shape and substance. This resulted in the famous Santal rebellion of 1855, which swept the British administrators off their feet unexpectedly as the latter had been taking the simple and guileless tribals for granted.

42. The insurrection of 1855 was suppressed with might and the leaders exterminated. But the British wanted to prevent another such uprising in future. Hence they declared the disturbed area a new district and named it Santal Parganas under Act XXXVII of 1855, and removed Santal Parganas from the operation of the general laws of Bengal Presidency and pulled up their socks to tone up the administration. However, the tribals soon learned that it was but window- dressing exercise of the British as the situation did not in any way improve. By 1870, within a period of 15 years, air was pregnant with fears of a new uprising. Mindful of the shock treatment of 1855,the British did not want to take another chance to face the fury of the tribals. Hence, a Regulation was passed as the Santal Parganas Settlement regulation III of 1872. It once again removed Santal Parganas from the application of general laws and made it into a Non Regulation District. It declared the non-transferability of raiyati lands and affirmed the power of the Deputy Commissioner, as the executive head of the district, to interfere with illegal land alienation and to enforce the provisions of the Settlement Record.

43. By the Government of India Act, 1935, Santal Parganas was declared a ‘partially excluded area’ and section 92 of the Act laid down that no Act of any Legislature should apply to it unless the Government by public notification so directs and the Governor may make such notifications or exceptions while extending any Act as he may deem fit. These provisions, while repealing Section 3(2) of the Regulation III of 1872, put the Constitutional stamp as guarantee to keep this area a Non Regulation District.

44. The Tenancy laws of Santal Parganas district were further strengthened by the Bihar Act XIV of 1949 and the Santal Parganas Tenancy( Supplementary Provisions) Act, 1949. Moreover, Santal Parganas, excluding Godda and Deoghar, was declared a Scheduled Area under the Presidential Notification of 1950.

B. The Constitutional Mandate

45.Clause 5(1) of the Fifth Schedule of the Indian Conmnstitution lays down that the Governor may, by notification, direct that any particular Act of any Legislature shall not apply to the Scheduled Area or part thereof. This provision thereby guarantees protection of the tribals in the scheduled area from untoward happenings emanating from vested interests, motivated individuals and Government executives and even the Legislature.

46. Further the provisions of Panchayats (Extension to the Scheduled Areas, PESA), 1996 has revolutionary implications arming the villages as grassroots village republics vested with powers to protect, preserve and manage their customs, traditions and resources. In the words of Constitutional Expert Dr.B.D.Sharma, “ The Community at the village level managing its affairs in accordance with its traditions and customs is now fundamental in the governance of Scheduled Areas. The competence of the Gram Sabha has been acknowledged in safeguarding the preserving community resources, which in the context of Scheduled Areas covers all natural resources including land, water, forests and minerals. In particular PESA envisages that recommendation of the Gram Sabha shall be made mandatory before granting of prospecting license, mining lease and other concessions in respect of minor minerals.” Section 4.reads as: Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural community resources and the customary mode of dispute resolution. Sharma points out that the above provision concerning Gram Sabha is also in consonance with the spirit of the International Labour Organization “Convention Concerning Indigenous and Tribal people in Independent Countries’ 1957 (ILO Convention 169). The Convention insists on establishing procedures for

• consultation with the tribal people for ascertaining whether and to what extent mining activity would prejudice their interest,
• fair compensation for damage, which they may sustain, and
• participation in the benefits of such activities.

Sharma further points out that “There is no reason why the provision of mandatory recommendation of PESA by the Parliament for minor minerals for which the Guidelines are being commended to the States for adoption, would not be accepted as a working rule for other minerals as well whose regulation is exclusively within the jurisdiction of Central Government. ”(Sharma B.D. Mineral Resources and the Community, Sahyog Pustak Kuteer (Trust), New Delhi 110013,Publd.Jan. 2003 pages 4 & 32.)

47. In Sharma’s’ understanding: “...any use of natural resources in the habitat of a community by any other person, natural or juristic, in terms of any agreement under any law whatsoever is subject to the natural rights of the Community acknowledged in terms of ’competence of Gram Sabha’ by the Constitution. Moreover, any provision in any law to the extent it is inconsonant with this special feature shall be deemed to have lapsed already by virtue of section 5 of PESA at ‘the expiration of one year from the date on which PESA received the assent of the President’, that is 23.12.1997. Thus, any agreement or contract in any form, which ignores this special feature to the extent of that inconsistency became ineffective on that date automatically.” p.15, ibid.

48. The grouse of the Santals and the Paharias of the proposed Pachwara Coalmines Project area is that, at no point of time, starting with the survey, which was done over 15 years ago, and the recent exercise of acquisition, no consultation in any form, either with the villagers or with the Gram Sahbas, has taken place. Till date, no proper information has reached them as to how and how much land has been acquired by the Government. They allege that no Gram Sabha was consulted at any time hitherto. Unlike as understood by others the tribals claim to have formed Gram Sabhas in every village. As mentioned earlier, the PSEB Project Executive Officer, Sri. Sharan, argued that the people’s claim to have formed Gram Sabhas was not true. Even the Deputy Commissioner of Pakur District was unaware of existence of Gram Sabhas in his district and deplored the incompetence of the District administration in helping people to form Gram Sabhas.

49. There appeared to be a sure communication chasm between the State and the people of the proposed Project area. With the mounting of people’s anger towards the administration for not having consulted them or their Gram Sabhas and their adamancy to stay put, tension is mounting. Even the administration is on tenterhooks and is too cautious to take any step lest it will stumble.

50. Will the muzzle power of the State prevail ultimately steamrolling over people’s will in order to pulverize their Constitutionally mandated little republics? If What Sri.Dinanath Sharan revealed is any indication of the shape of things to come, then who will be able to stop the floodgates of untoward events and disastrous consequences? Sharan mentioned that Sri. Babulal Marandi, the then Jharkhand Chief Minister under the NDA Government, told him that the Government was prepared to dispatch about one thousand CRPF into the area to take control of the situation and ‘to contain the disgruntled elements’. Does power have to flow through the barrel of the gun to negotiate with the simple and guileless tribals who are also getting conversant with the laws of the land? What has the so-called civilized gentry and the development crazy world to reply to the simple words of the Tribal Chieftain of Seattle which he addressed in 1854 to the President of the United States:

“How can you buy or sell the sky, the warmth of the land? The idea is strange to us. If we do not own the freshness of the air and sparkle of water, how can you buy them? Every part of this earth is sacred to my people. Every shining fine needle, every shore, every mist in the dark woods, every clearing and humming insect is holy to the memory and experience of my people.”


Sd. P.A.Chacko, Secretary, PUCL, Dumka Unit
Anant Hembrom, Member
Md.Rehman, Member and
B.N.Upadhyay, Member

Annexe: Tribals Displaced from 1950-1990 (Lakhs)*

* A.Minz. Developmentand/or Destruction in Jharkhand and / Growing Fascism. Update Collective, p.72

PUCL DUMKA UNIT, OFFICE AT JOHAR, NEAR LIC, DUMKA 814 101, JHARKHAND, INDIA. TEL.06434-223708 E-mail: johrd@sancharnet.in

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