Tenancy : Framework and Realities
The desired direction of policy towards tenancy reforms was laid down by the National Commission on Agriculture, 1976 in the following words :
“
The principle of abolition of intermediaries having been accepted, the idea of
continuance of tenancy under the private land owner is anomalous. Tenancy
reforms should be directed to the stage of finally breaking up landlord-tenant
nexus. Agriculture should be treated as a family occupation of the peasant
cultivator and not as a source of subsidiary unearned income. In a normal
peasant proprietor economy there is no place for absentee landlordism, which
should be discouraged and ultimately curbed.”
(National Commission on Agriculture, 1976, Abridged Report, P.690)
Tenancy Reforms has the following main objectives :
v Rent should not exceed the level of one fifth to one fourth of the gross produce
v Tenants should be accorded permanent rights in the land that they cultivate, subject to the special rights of resumption to be exercised by the privileged category of landowners
v The sub-tenants/ under raiyats/ share-croppers should enjoy a degree of permanence in respect of land being cultivated by them
v There should be security to the sub-tenants/ under raiyats/ share-croppers against eviction at will
v The landlord-tenant relationship, except in the case of the few privileged categories, should end in the conferment of rights upon the tenants
The magnitude of tenancy in terms of the proportion of leased-in area does not capture the total nuance of tenancy. Even in a narrow economic sense, the same proportion leased-in area under different terms of tenancy has substantially different applications, both towards agricultural development and the well being of the tenants. Fixed money, fixed produce and share of produce are the most important tenancy contracts.
Various studies point out the existence of concealed tenancies despite a ban on leasing in some states. It has been found that :
· The average area leased in and operated by the un-recorded tenants is higher than those of the recorded tenants
· The distribution of tenants by size class of area leased in and operated also points to clear-cut edge of the unrecorded over the recorded tenants. Among the unrecorded those operating above five acres are higher than that of the recorded tenants
· The average area operated by unrecorded tenants is higher than of the recorded tenants
· Sizable area operated by tenants is irrigated but even here the percentage of irrigated area operated by unrecorded tenants is higher than those of the recorded tenants
Conferment of ownership rights on tenants remains the optimal goal, which does not seem to be achievable in the foreseeable future. What seems feasible, according to Utsa Patnaik even while existing ownership of land is retained (except for tribal and illegally alienated which must be restored) is to focus first on conferring owner-like security of tenure on the lessees by registering them through a drive to record de facto tenancy in the presence of the village population. This will only succeed if the onus of providing that a piece of land is being cultivated by a tenant does not lie with the tenant, whose declaration that he does so supported by the general body of the cultivators should be deemed sufficient. The onus of providing that a piece of land is not being cultivated by an unrecorded tenant should rather be on the less or if the latter wishes to contest that tenant’s claim to be registered. Second, the implementation of reasonable maximum rent is required to avoid the over exploitation to which the tenants are currently subject, the extension of government procurement directly from the producer at fair minimum support prices will help to loosen the stranglehold of private traders as will the extension of institutional credit. At the same time it is necessary to extend the public distribution system in these areas to enable those who remain food-deficit, to access food grains at the affordable price.
The incidence of tenancy
is still substantial in some regions.
The banning of tenancies and imposing restrictions on leasing out has
only led to tenancies being pushed underground.
As long as a class of landowners who shun physical labour and vast army
of landless agricultural labourers and marginal peasants coexist, any legal ban
on tenancy will remain a dead letter. As
tenancy is contracted secretly in violation of the law, the tenant’s position
always remains precarious and consequently, the tenant has no incentive to
cultivate the land efficiently. And in
several regions, landowners keep the land fallow or raise only one crop where
two could be raised. They do not lease out the land for fear of losing their
rights if they let it out illegally. Apart from the fact that a total ban on
the creation of tenancies is unworkable, there are also serious doubts about
the advisability of prohibiting leasing out of land.
(a) Some
States have provision for conferment of ownership rights upon the
under-raiyats/sharecroppers.
(b) Suitable
amendments may be initiated in the laws so as to make uncorroborated testimony
of the under-raiyat / sharecropper admissible with sufficiently over-riding
evidentiary value as under Section 57 of the Indian Evidence Act.
(c) The issue of tenancy should be excluded from
the purview of the civil courts.
(d) Probably
it is high time that a tribunal with appellate hierarchy be constituted right
from the village level with adequate representation for the weaker sections and
representatives from the unorganised rural labour.
(e) Where there is provision for payment of
compensation in lieu of ownership rights the same may be paid by the State
Government on behalf of the under-raiyats.
(f) There should be an in-built mechanism vide
which the correction of the records of rights takes place without going through
the gamut of mutation proceedings.
(g) There should be a provision that during the
tendency of a dispute absolute ownership rights should be enjoyed by the
tenants / under-raiyats.
(h) Lands held by the temples and religious institutions
should be brought within the operation of amended tenancy laws. The income derived from land may be
substituted by annuity.
Issues for consideration under the Tenancy Laws
I. The existing
tenancy laws are so stringent that access to land for the poor has become
difficult and has given way to concealed tenancy which is exploitative and
neither favourable to the tiller nor to the land owner. Hence it is necessary to make tenancy laws
more simple and flexible so that both the tenants and the landowners are
benefited.
II. There are
variations in the tenancy laws from state to state and in some cases there is
deviation from the national policy on tenancy reforms. It is therefore necessary that there should
be uniformity in laws in all the states.
III. The number of
absentee land owners is increasing and their land are unutilised as they are
not leasing out the land for the fear of loosing ownership rights. Some arrangements need to be made to put such
land on productive use and also ensure that the ownership rights of the
landowners are protected. The Gram
panchayats can play useful role in this regard.
The Gram Panchayats can take the possession of such land with the consent
of the landowners and distribute to the land less poor for cultivation on the
rent decided by the Gram panchayats. The
Gram Panchayats can charge certain percentage of rent for managing the lands of
the absentee landowners.
IV. Gram Panchayats
should also be provided more responsibilities with necessary resources and
functionaries to manage land specifically for up dating land records and
recording tenancy as the existing system is not capable to up-date land records
and there is practically no recording of tenancy.
V. Gram Panchayats
can also deal with transfer, mutation and other related activities in the
management of land. It will help in
reducing conflict and land related violence in the villages.
VI. To tackle to
some of the emerging problems like reverse tenancy which is often justified on
the grounds of more efficient use of land but rob the poor of its benefits
mainly because of lack of infrastructure, appropriate investment should be made
in infrastructures sector accessible to the poor.
VII. All forms of tenancy e.g. sharecropping, fixed
kind rent and fixed cash rent should be included within the definition of
‘Tenants’. The Bataidar (sharecropper)
should have the right to deposit the produce rent with the nearest revenue
authorities if the landowner refuses to furnish the rent receipt. The fair rent should be fixed at 1/5th
of the gross produce.
VIII. The major problem with the implementation of
tenancy legislations is that the tenants do not come forward to register their
lease. Personal enquiry reveals that,
fear of the landlords and lack of awareness has prevented the tenants from
coming forward. Therefore, some
administrative intervention is needed.
Targets could be set for the field level officers in proportion to the
expected concealed tenancy in the village.
The Village Administrative Officer is the person who works directly in
the village and has complete knowledge about such cases, so he could be deputed
to do this work.
IX. Secure tenure and/ or access rights are
critical to ensuring long-term food security for families and communities. Without such security and/ or rights it is
also difficult for families and communities to invest in land improvement,
means of production, and/ or conservation measures. Appropriate steps should be taken for
distribution of passbooks to the actual cultivators and sub tenants evidencing
their rights in the land.
X. The major drive should now be to record of the
tenants on a large scale. Without
entering their names in the record of rights, the tenants are unable to accrue
all the benefits assured to them under various legislations. The sharing of input and outputs, the
duration of the tenures, the fixation of rents etc. always go against the
tenants, as they find it difficult to prove that they were cultivating the
land. Without changing the skewed pattern
of land ownership, there will not be any changes in the social structure of the
villages. The official machinery should imbibe enough spirit so that the
concealed tenants can get better of their ‘fear psychosis’ and come forward for
recording their rights. The Patwari should be duty bound to enter the name of
the tenant as cultivator in Girdawari.
All efforts should be made to gather evidence about oral tenancy cases
and to initiate legal processes to establish tenancy rights, including
recording of names in Khatauni. The
Patwari (Lekhpal) should be duty bound to enter the name of the tenant as a
cultivator in Khatauni. There is usually
a tendency on the part of the Patwari to show the field as Khudkasht. In the tenancy laws, the tenancy should be
made legal and a provision of recording of the tenancy should be made.
XI. The institution of Gram Panchayat should be fully associated with recording of tenants and Girdawari.
XII. If the principle of ‘land to the tiller’ is to be enforced, conditions should be created where it may not be possible to own acreage of land beyond what can be operated intensively. Therefore, elimination of absentee land ownership would be desirable and for that the definition of ‘personal cultivation’ should be revised and made stricter in relation to residence, income and participation of the landowners. The definition of ‘personal cultivation’ should lay stress on these ingredients as (a) the person claiming to be cultivator of the land must bear the entire cost of cultivation; (b) he must cultivate his own land by his own labour, or by the labour of any member of his family; (c) he or a member of his family should reside for the greater part of the year in the locality, where the land is located; (d) cultivation should be the main source of his income.
XIII. Although laws have been enacted to cover agricultural lands, sufficient safeguards have not been taken in respect of the non-agricultural lands in the rural area. There are numerous town dwellers, which have acquired agricultural lands in the rural area, but does not either reside in the area or practice agriculture. Such people, who are for all practical purpose non-agriculturists, should not be permitted to hold agricultural lands. The Law should, therefore, take care o such ‘gentlemen farmers’ and provide for the prevention of exploitation of agricultural lands by them for purely the motive of profit.
XIV. The phenomenon of ‘reverse tenancy’ has been noticed in many parts of the country. The marginal and small farmers who are compelled to lease out to bigger landowners, should be linked with institutional agencies, anti-poverty programmes and rural development schemes to make them viable. If they lack implements, irrigation facilities, and inputs, such facilities should be extended to them.
Reflections on Tenancy
In
At all
Contract Farming : Tenancy Implications
The notion of contract farming is a late emerging trend in the Indian agricultural scenario. Contract farming is a system of farming in which agro-processing or trading units enter into a contract with farmers to purchase a specified quantity of any agricultural commodity at pre-agreed prices. Small farmers who are generally capital-starved and left to them cannot make major investment in new technical inputs. Contract farming can fill in this gap by making available quality inputs, technical guidance and management skills to the farmers. By entering in to a contract, the company reduces the risk of fluctuating market demand and prices of his produce. The land rights of contract farmers remain unaffected and fully protected and judged in this way.
Contract farming, is a sharing of profits through a networking of mutual commitments, in pursuit of defined, timed goals. It can succeed in the following farm sectors well :
· Reverse tenancy areas where large farmers lease in from small farmers
· Medium to large plots, not necessarily leasing in from lesser farmers
· Farmers with sharecroppers, where amicable settlement is to be reached between the sharecroppers and the landowners to interact vis-à-vis the industry.
The Contract Farming protagonists recommend :
I. The existing laws governing land leasing in various regions should be reviewed, simplified and liberalized
II. Land leasing should be made legal in all areas, subject to provision that the size of operational holding of a farm family should not cross ceiling limits
III. The clause of adverse possession of land in the land laws of various states should be done away with, as it interferes with the free functioning of land lease market
IV. All cases of land leasing should be properly recorded at the gram panchyat level, which will send details of the lease to local concerned revenue officer for the purpose of record
V. Leases could be for any duration, namely seasonal, annual or for more years. Also the land owners will have the rights of automatic resumption of land after the agreed lease period
VI. All such cultivators who have lease in land even for a season or year should be entitled to access short term bank credit, against pledging of expected output
VII. As far as possible the system of sharecropping should be replaced by fixed cash or fixed produce system of leasing which are relatively more efficient
VIII. The existing system of regulation of rent by the state should be done away with. In principle the rent should be the market rent, as agreed upon in writing by the lessor and the lessee.