A Civil Society Delegation led by former Finance Minister Panchanan Kanungo has submitted on 9th September, 2015 a memorandum to the Governor of Orissa requesting him to send back the ‘Odisha Land Grabbing (Prohibition) Bill-2015, which was arbitrarily passed by government on 27th Aug,2015 in total absence of legislative environment.
We put below the contents thereof on records:
Subject: Request for sending back the recently passed Odisha Government Land Grabbing (Prohibition) Bill 2015 to Odisha Legislative Assembly for reconsideration under the first proviso to Article 200 of Constitution.
We the members of the civil societies and concerned citizens bring the matter to your kind notice for the appropriate constitutional steps. On 27th August 2015, the Odisha Legislative Assembly has passed the Odisha Government Land Grabbing (Prohibition) Bill 2015 and which is yet to get your assent. We find serious concerns on the whole provisions and contents of the bill, which posed a serious threat to the future land rights and livelihood of dalits, tribals, daily wage earners, slum dwellers and land less marginal farmers of the state.
It is the fundamental principle of law that the land related matters are dealt with primarily under civil laws. So “unauthorized occupation” of land couldn’t be dealt with under penal laws and any person who is occupying a place of land shouldn’t be declared as committing crime and vesting power to police to arrest the said person without warrant. Thus the Odisha Government land grabbing (prohibition) bill is contravening the procedure established by law under the Code of Civil Procedure (CPC), Central law.
It is the settled position of the law in Olga Telis Vs Bombay Municipal Corporation that the slum dwellers or pavement dwellers are not occupying public land by choice, but due to compulsion to have their shelter and livelihood. The Constitution bench of the apex court in the above noted case observed that “mnse rea” is the primary ingredient of an “offence’ and the slum dwellers or pavement dwellers are not occupying public lands in cities to commit an offence. So mere unauthorized occupation of land by them, can’t construe an offence and thus the bill in question doesn’t confirm the ratio decided by the constitution bench of the honorable Supreme Court.
The provisions of the bill in question have overriding effect on the Odisha Municipal Corporation Act, Odisha Municipality Act etc. which have been enacted by the state legislature keeping in view the basic principles of 74th amendment of the constitution.
We are indeed disturbed with the draconian provisions of the bill in question, which provide unauthorized occupation by any person including landless, homesteadless, peasants, adivasis, dalits , slum dwellers, women, third gender, physically challenged persons etc. is a crime and cognizable offence , punishable under the said bill up to seven years with a fine tune of Rs. 20,000. It’s a mockery on the poverty stricken and marginalized sections of the society. The bill doesn’t confirm to the fundamental principles of democracy, Constitution of India and more embodied with unfettered authority overriding many other state and central laws. These include Indian Evidence Act 1872, Panchayat Raj Extension to Schedule Areas Act (PESA) 1996, The Schedule Tribe and other Traditional Forest Dwellers Act (FRA) 2006, Odisha Land Reform Act (OLR) 1960, Odisha Prevention of Land Encroachment Act (OPLE) 1972, Odisha Government Land Settlement Act (OGLS) 1962 etc. The bill was passed on 27th August 2015 after the boycott of the legislator belonging to opposition political parties and even in abrogation of established parliamentary procedures.
We are also bring to your kind notice that the bill if becomes law, shall also be extended to the parts of Schedule Areas. The provisions under para 5 (2) of the fifth schedule of the constitution of India , gives authority to the Governor of the state and Tribes Advisory Council (TAC) to make special regulations for the peace and good
Governance in the schedule areas. The bill in question is ultra virus to the provisions of the Constitution in view of the above unconstitutional provisions.
Therefore, we pray.
a) To send back the Odisha Government Land Grabbing (Prohibition) Bill 2015 for discussion on the floor of the assembly for appropriate amendments in the above said provisions and with a direction to secure its compliance to the provisions made under Part-IX and Part-IXA of Constitution;
b) To make a Regulation on prohibition of land grabbing and land distribution in Scheduled Areas as required under Para 5(2) of Fifth Schedule.
With Kind Regards,
Sj. Panchanan Kanungo, Ex. Finance Minister, Odisha.
Sj. Rabi Das (Senior Journalist), Bhubaneswar.
Adv. Biswapriya Kanungo, Human Right Activist, Bhubaneswar.
Mr. Sandeep Pattnaik, National Council for Advocacy Studies, Bhubaneswar.
Mr. Narendra Mohanty, State Convener, INSAF, Odisha.