CRITICAL ANANLYSIS OF LAND LAW OF STATE OF JHARKHAND

PESA ACT

The 73rd Constitutional Amendment which came into force w.e.f. 24th April, 1993, inserted Part
IX in the Constitution of India and accorded Panchayats a Constitutional status as institutions of
local self-governance for rural India. Article 243M of the Constitution, while exempting the Fifth
Schedule Areas (FSA) from implementation of Part IX of the Constitution, provides that
Parliament may by law extend its provisions to the Scheduled and Tribal Areas subject to such
exceptions and modifications as may be specified in such law and no such law shall be deemed
to be an amendment to the Constitution. On the basis of the report of the Bhuria Committee
submitted in 1995, Parliament enacted “The Provisions of the Panchayat (Extension to the
Scheduled Areas) Act, 1996” popularly known as PESA Act, extends Part IX of the Constitution
with certain modifications and exceptions to the Fifth Schedule Areas notified in ten States viz.
Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh,
Maharashtra, Odisha, Rajasthan and Telangana. These Schedule areas in ten States extend in 108
districts (45 fully and 63 partly covered).

Importance of the provisions of PESA Act:

Gram Sabhas and Panchayats, under PESA Act, have been vested with greater powers, which
include approval of plans, programmes and projects for social and economic development,
mandatory consultation before acquisition of land in the Schedule Areas for development
projects and before resettling or rehabilitating persons affected by such projects, mandatory
recommendations prior to grant of prospecting licence or mining lease and grant of concessions
for exploitation of minor minerals in Scheduled Areas. Panchayats and Gram Sabhas, in the
Scheduled Areas, have been endowed with such powers and authority as may be necessary to
enable them to function as institutions of self-government. In short, PESA Act mainly aims to
protect the tribal population from exploitation by making Gram Sabhas and Gram Panchayat
centers of self-governance and has laid special thrust to empower Gram Sabha which has not

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been conferred by any other Act in any State. Effective implementation of PESA Act will bring
about the benefits to the tribal population.

Critical Analysis of Implementation of PESA Act:

1. The State Government of Jharkhand has not yet framed PESA Rules.
2. The progress of the State of Jharkhand in respect of compliance of concerned State subject
laws with the PESA Act is very slow, which need special attention of the State Government. The
status of compliance of concerned subject laws are as under:

REQUIREMENTS UNDER THE PESA ACT

State land Acquisition N
Excise N
Forest Produce Y
Mines and Minerals N
Agri Produce market N
Money lending N

*** Jharkhand Govt. has adopted a resolution on 8.2.2017 conferring ownership right over MFP
to GP.

3. The progress of the State of Jharkhand in respect of compliance with the section 4 of PESA
Act is also slow, which need attention of the State Government.

The Pathalgadi Rebellion

Pathalgadi are basically one way to demarcate the territories and say outsiders (govt officers) that
the law of the land is no longer followed in the region. It is a movement of the tribal folks of the
villages of Jharkhand. The movement derives its inspiration from the provisions of the PESA.

“A village shall ordinarily encompass a habitation or a neighborhood of habitations or a

hamlet or a neighborhood of hamlets comprising a neighborhood and managing its

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 affairs in accordance with traditions and customs; every village shall have confidence a
gram sabha consisting of people whose names are integrated in the electoral rolls for the
panchayat at the village level and each gram sabha will likely be competent to safeguard
and withhold the traditions and customs of the people, their cultural identity,
neighborhood property, and the worn mode of dispute resolution.”

The leaders of the movement have made their minds to chop the key provisions of the PESA as
messages on enormous stones in allege to reveal Adivasi folks about this law, which empowered
a village as an administrative unit. This has created a law and order situation and has created
anti-state sentiments among the people. They have created hatred among folks, breach of peace,
and obstructed public servants from accomplishing their work. They also have boycotted all the
government institutions and have refused to take part in elections.

MESA (The lost Cause)

The state governments have taken a varied look into the Land acquisition and has diluted the 5 th
Schedule areas by coming up with municipalities. In the past few years tribal rights activists have
filed 31 cases against different urban local bodies, calling them illegal. They have also sued state
governments for illegally implementing the municipal Act in scheduled areas. Their concern is
that state governments are taking advantage of this parliamentary lapse to give speedy clearances
to mining companies and industries in resource-rich scheduled areas.

The municipal Act has no provision to protect the traditional and cultural rights of tribals over
their land, forests, minerals and other natural resources as granted under the Fifth Schedule of the
Constitution. As per the provisions of the Fifth Schedule no land in scheduled areas can be
transferred to non-tribal people and no project can be set up without the community’s approval.

The state governments are upgrading the panchayati areas within the scheduled area into
municipal areas and are taking the areas out of the purview of PESA provisions, which mandate
village council’s approval for setting up any project. Worse, they are doing so without providing

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alternative protective provisions to the municipal areas. This is creating legal infirmity. As per
the 1991 census, there were 167 urban local bodies in Schedule Five areas. Their number has
increased since. Between 2007 and 2009, Chhattisgarh and Madhya Pradesh upgraded 26 and
eight tribal rural areas into municipalities, and these are the areas with major industrial
investment proposals.

The MESA Bill was prepared based on the recommendations of the Bhuria Committee, whose
report had paved the way for the PESA Act for tribal rural areas (see ‘Genesis of the lost Bill’).
The Bill aims to protect the land rights of tribals and provides for a standing committee on tribal
affairs in each municipality. It was introduced in the Parliament on July 30, 2001. Later, it was
referred to the Parliamentary Standing Committee on Urban and Rural Development, which
recommended its adoption in November 2003. Till the monsoon session of 2017, the Bill was
enlisted for discussion every session. But no one knows what happened to the Bill after that.