विषय: भूमि अधिग्रहण और विस्थापन के संघर्ष में साथ देने वाले हैं तो उनसे अनुरोध है.

झारखण्डसे हमारे दोस्त, श्री शाही, लिखते है,
उद्धरण
नगरी के भूमि अधिग्रहण, संघर्ष और कानूनी लडाई में कुछ बातें हैं जिन्हें मालूम कर लेना चाहिए,
१. किस कानून और नोटीफिकेसन के तहत यह अधिग्रहण हुवा था ? 
२. क्या अधिग्रहण की सभी प्रक्रिया अच्छी तरह से पालन की गयी थी? [कौनसी चाल खेली जाती है?]
३.अगर नहीं, तो वे कौन, कौन से वायेलेसन हैं? उन्हें चिन्हित किया जाय.
४. प्रत्येक सभा में इस बात को दोहराया जाता है कि छोटानागपुर टेनेंसी एक्ट के अन्दर भूमि अधिग्रहण सेडुल एरिया में नहीं हो सकता है… सी एन टी एक्ट की वह कौन सी नियमावली है, जो कि अठारहवीं सदी के भूमि अधिग्रहण कानून में अधिग्रहण को रोकती है..इसे कृपया चिन्हित कर के पोस्ट करें..
५. यह भी कहा जाता है कि अगर भूमि अधिग्रहण किया गया और उसे कुछ सालों तक उपयोग में नहीं लिया गया तो उस जमीन को रैयतों को वापस करने का प्रावधान है..अगर ऐसा है तो किस कानून या किस नोटीफिकेसन के अंतर्गत यह आता है..कृपया पोस्ट करें..
६. यह बात भी उठाती रही कि उस समय के बिहार सरकार के कृषि विभाग ने एक पत्र लिखा था कि अब इस भूमि की आवश्यकता नहीं है और इसे वापस कर दिया जाये..यह पत्र तो बिहार के कृषि विभाग से ही निकल सकता है….अगर कोई इसमे मदद करे तो धन्य …
यह तो साफ है कि दो ही रास्ते हैं इस अधिग्रहण को रोकने के…
कानूनी ….
कानूनी, संघर्ष के लिए तो ईन सभी बिन्दुवों को साथ में लेकर ही किसी कानूनी विद को संपर्क किया जा सकता है..
और जन संघर्ष के लिए तो सभी राजनितिक दल..अपने , अपने मोहरे खेल ही रहे हैं…हम लोग तो वहां असहाय से लगते हैं..तो क्यों न हमलोग कानूनी लडाई के साथ कुछ करें.. अगर आप सभी लोग भूमि अधिग्रहण और विस्थापन के संघर्ष में साथ देने वाले हैं तो उनसे अनुरोध है कि इस बारे में जो भी कागजात उपलब्ध हों उन्हें यहाँ या दयामनी बरला के पेज पर पोस्ट करें…कुछ सहायता होगी…धन्यबाद…

उद्धरण समाप्त
मैं इसे ब्लॉगके जरिये सामने रख रहा हूँ, की आप लोग भी इस अहम काममे हाथ बटा सके. मुझे जो जानकारी प्राप्त हुई है, वोह कुछ ऐसी है.  स्केडूल  एरियाका जिक्र हमारी संविधानमें हुआ. इसलिए १९०८ में गठित छोटानागपुर टेनन्सी एक्टमें (छोटेए) उसका उल्लेख नामुमकिन है. लेकिन बादमे इसमें जरुर संशोधन हुआ है, क्योंकि कलम ७१अ वर्ष १९६९ दाखल होनेके संदर्भ प्राप्त होते है. बहुत कोशिश के बावजूद नेट्पे छोटेए मिला नहीं. लेकिन नीचे प्राप्त सदर्भोंके हवाले लगता नहीं की भूमि अधिग्रहणमें छोटेए कोई बाधा डालता है. निचे अधोरेखित समथा फैसलाभी इसकी पुष्टि करता है.
बिर्सा मुंडाने जो अभियान चलाया उसका नतीजा कलम ४६ मे साफ़ साफ़ दिखाई देता है. रयत जमीनसे पराया ना हो, इसकी कोशिश यहाँ की गयी है. यहाँ आदिवासी जमीन बिगर अदिवासिको बेचनेमे बाधा डाली है.
^^
(1) No transfer by a Raiyat of his right in his holding or any portion thereof –
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent :
Provided that a Raiyat may enter into a ‘bhugut bundha’ mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgages be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years :
Provided further that –
(a) an occupancy-Raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;
(b) an occupancy-Raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the Holding is situate.
(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and
(d) any occupancy-Raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange gift, will, mortgage or otherwise to any other person.

^^.
१९९७मे समथा वि. आंध्र सरकार, इस मुकदमेमे उच्चतम न्यायालयका निर्णयभी इस मामलेमे (स्केडूल ५) देखना होगा.
^^
The Court in its final verdict, declared that ‘person’ would include both natural persons as well as juristic person and constitutional government and that all lands leased by the government or its agencies to private mining companies apart from its instrumentalities in the scheduled areas are null and void. In addition it also held that transfer of land to the government or its instrumentalities is entrustment of public property as the aim of public corporations is in public interest and hence such transfers stand upheld

1. As per the 73rd Amendment Act, 1992, ….”every Gram Sabha shall be competent to safeguard…..Under clause (m) (ii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a scheduled tribe”.
2. Minerals to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State
3. In the absence of total prohibition, the court laid down certain duties and obligations to the lessee, as part of the project expenditure.
4. At least 20% of net profits as permanent fund for development needs apart from reforestation and maintenance of ecology.
5. Transfer of land in Scheduled Area by way of lease to non tribals, corporation aggregate, etc stands prohibited to prevent their exploitation in any form.
6. Transfer of mining lease to non tribals, company, corporation aggregate or partnership firm, etc is unconstitutional, void and inoperative. State instrumentalities like APMDC stand excluded from prohibition.
7. Renewal of lease is fresh grant of lease and therefore, any such renewal stands prohibited.
8. In States where there are no acts which provide for total prohibition of mining leases of land in Scheduled Areas, Committee of Secretaries and State Cabinet Sub Committees should be constituted and decision  taken thereafter.

^^.
डेली पायोनिअर के अनुसार छोटेए कलम ४९ के अंतर्गत आदिवासी तथा दलित जमीन, बिगर-आदिवासी तथा दलितको हस्तान्तर की जा सकती है, लेकिन कारखानदारी, कृषि एवं सार्वजनिक उद्देश्य मात्र.
फोकस मेंगेझिन के अनुसार कलम ७१अ के अंतर्गत आदिवासी जमीन मूल मालिकको वापिस की जा सकती है. ^^According to the section 71 A of CNT Act, the STs’ land can be returned back to the rightful owner. If on that land, the building or house is constructed then on Court’s order the estimate of building or house is done.  The aggrieved party can take back land and house after the payment of compensation.^^.
मधु किश्वार वि. बिहार सरकार १९९६ के फैसलेंमें उच्चतम न्यायालयने आदिवासी जमीनके मामलेमे महिलाओंको कुछ सिमित उत्तराधिकार निश्र्चीत  किये, जो आदिवासी परंपरा तथा सामान्य कानूनके अनुसार मौजूद नहीं थे [छोटेए कलम ७ और ८]. ^^…But on his death, his dependent family females, such as his mother, widow, daughter, daughter-in-law, grand-daughter, and others joint with him have, under Section 7 and 8, to make way to a male relatives within and outside the family of the deceased entitled thereunder, disconnecting them from the land and their means of livelihood. Their right to livelihood in that instance gets affected, a right constitutionally recognized, a right which the female enjoyed in common with the last male holder of the tenancy. It is in protection of that right to livelihood, that the immediate female relatives of the last male tenant have the constitutional remedy to stay on holding the land so long as they remain dependent on it for earning their livelihood, for otherwise it would render them destitute.^^.
ग्लाडसन डुंगडुंग लिखते है की झारखण्ड सरकार का यह दावा है: ^^The government claims that the land was acquired in 1957-58 for the extension of the ‘Birsa Agriculture University and Seed Bank’ under the ‘public purpose’ provided in the section 17 (4) of the Land Acquisition Act 1984. However, Rs, 155,147.88 was allocated for the compensation but out of 153 Raiyats (tenants), 128 had declined the compensation offered and merely 25 Raiyats of a particular community had received it. When 128 Raiyats declined the compensation, the Government deposited their money Rs. 133732 in the treasury but they were not informed. ^^.
जमीन अधिग्रहण का उद्देश बदलनेके कारण उच्चतम न्यायालयने ग्रेटर नॉएडा इंडस्ट्रीअल डेवेलपमेंट ऑथोरिटीको जमीन वापिस करनेका आदेश दिया था. लेकिन यह ध्यानमें रखना जरुरी है की ये जमीन बिल्डरोंको दी जा रही थी. 
माहिती अधिकार के अंतर्गत जमीन अधिग्रहण के कागज [१९५७-१९५८] हासिल किये गए और छोटेए भी साथ साथ मिल जाये तो इसपर काफी रोशनी गिर सकती है. 
० ० ० ० ० ० ० ० ० ० ० ०० 
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4 Responses to “विषय: भूमि अधिग्रहण और विस्थापन के संघर्ष में साथ देने वाले हैं तो उनसे अनुरोध है.”

  1. Prem Verma Says:

    Dear RP, Excellent summarisation of the legal facts. Both sides of the coin are equally important, i.e. Legal as well as Agitational Pressure. Sri Prashant Bhushanjee, though unable to come to Ranchi immediately due to his earlier tight schedule, is willing to take up the legal matter in Supreme Court provided we can send him all the documents available with us on this question. Ms Medha Patkarjee has given her concurrence to come to Ranchi after the 30th to give strength and support to our struggle. We need to meet in Nagri village early next week to discuss and give shape to these programmes at the earliest. Kindly coordinate. Prem Verma

  2. Aaarti Dua Says:

    Ranchi law students win battle for varsityManeesh Chhibber Posted online: Tue Sep 25 2012, 00:18 hrsNew Delhi : Three years after it was set up, the National University of Study and Research in Law, Ranchi, could finally have its own building, thanks largely to the efforts of a group of students.The students waited for nearly three years for the state government to get the land allotted to the university vacated, but in vain. So, they approached the Jharkhand High Court — a second-year student, Abhinav Prakash, even argued the case — and convinced it to order the government to clear the land within two weeks.Since it was established in 2010, the university is housed in a part of the Birla Institute of Technology Polytechnic, Mesra. In April, 2011, the government allotted 73 acres in Nagri for the campus but villagers stalled construction. They said the land was theirs even though the state claimed to have acquired it for an agriculture university over 50 years ago. It soon became a political issue and the government dragged its feet over getting the land cleared of alleged encroachments.Earlier this year, the Jharkhand Bar Association petitioned the High Court to order the government to facilitate construction of buildings to house the university. But it was the investigation by the students — all involved with the university’s Centre for Legal Aid Programme — that showed to the court that the land, which the villagers claimed to be farming, was almost barren.“The students did an amazing job, unearthing facts that exposed a lot. First, they researched the literacy statistics of those claiming to be totally dependent on land for farming as they were illiterate, proving that their claim was not true. Then they pointed to the court that there was no way the villagers, whose lands had been acquired over half a century ago under the Land Acquisition Act, could claim ownership of the same,” said the university’s Vice Chancellor Prof A K Koul.Prakash, who argued the case, said: “We decided that we couldn’t wait and watch. Some of us did the research while others, with the help of the faculty, drafted the plea to be submitted to the court. It is encouraging that the court not only heard us patiently but passed a favourable order immediately.”Incidentally, construction for an Indian Institute of Management on a piece of land nearby is stuck due to the same reason.

  3. R P Shahi Says:

    Dear Sadanad, Thanks for your concern and forwarding this mailWell , it seems this is an era of judiciary activism and every one seem to be a bit scared of this legal system. I am a person to repect law of the land but when the people who are supposed to interperate and judge the situation as per law, behave like dictetors or rulers, I feel scared.The student is doing the job which he is supposed to do after getting degree and may be congratulated for this act, but here are some thing which always haunts me and if some one from adovocate / judiciary side can explai it I may get some peace,1. Just beside Jharkhand High Court there was a public road through which people like me used to go for daily marketing ( vegetable, eggs, meat etc) and beside it there was one govt house where some minster used to live. High court wanted to use this house and asked for it from Govt, which was immediatey given to the. Now one day we found that high court had taken over that public road( news papers reported that they got after writing to govt) and blocked it. Now this road around 50 ft wide is being used for Adovocates car parking. Can the legal brian explain me as to why a public road which was being used by more than 4-5000 people every day should be closed just because adovocates of high court have to park their cars? I know they would say that its legally done..but the govt consists of such people who have many cases in CBI and High Court . Will they deny whatever Chef Justice wishes? Not in their life time.Is it justified for any law abiding person to block such path?2. I am resident of Ranchi since 1965 and have seen the growth and developement with keen eyes. The only group of professionals who developed well in every circumstances are adovocates and CAs ( No offence meant). When Jharkhand was formed there used to be 2-3 Ambessedors and Fiats along with few scooters around this High Court. in past 11 years all 3 sides of High Court is full of larger cars/ SUVs. The line of cars have extended to about 400 meters both side of the road in front of court. Do we need such intrepreters of law? I recall Sri M.K.Gandhi's view for adovocates in Hind Swaraj, when ever I pass through this place.The lower court too has the same scene, every where the cars, motorcycle and litterally no place for walk.Apart from the govt servants adovocates are the only independet practicing community which gets free parking in Ranchi. We who pay all commercial taxes, even shop and establishment dont have even paid parking in front of our offices.Dont you feel that a seperate state is being carved out for few? 4. Through RTI, we have come accross documents which shows that Law University had MOU with B.I.T that they will build their own building in 3 years on the 36 acres land provided by BIT. Its in black and white and one fails to understand why they need more than 36 acres of land? What are they going to build? Parking lot for their students too?Continued……

  4. R P Shahi Says:

    ……….Continuation5. The students went around and found that the land is barren, well tyhe pictures of paddy plantation is on face book and any one can see what happens there. But who are they or high court to judge this? Do we try to see what are they doing? The adovocates right from their start of carrier dont give receipt to their clients. They are then promoted to judges without any test or transparent criteria( Its unique). The selection too is from the same cadre. No reform is achnowledeged by judiciary. Are we to ask as how many cases a judge who gets all 5 start facilities on public money clears per day or per month? If they want quantative results from others, they should also be prepared to be judged by others.Its a clear cut case of high handedness and one can see this in a seperate case too where High Court has asked and got 165 acres land for building new building. Do we need such huge buildings to deal with law of a land where Rs 28 per day is sufficient for daily living of 70% population?I am sure we dont need this. I am confident that a person who exploits the system to get luxery can not do justice. Things are heading towards confrontation and it is high time that people start it. RP Shahi

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