Bihar’s third survey for land consolidation, NITI Aayog's Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title
Bihar’s “third survey” for land consolidation which is underway is linked to NITI Aayog's Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title. Significantly, any violation of fundamental rights and constitutional rights in the process of special survey for land consolidation will have no legal remedy in the Courts and Tribunals because the laws under which this exercise is being undertaken are under the Ninth Schedule and Article 31 B of the Constitution of India. It has implications for social policies guided by indiscriminate digital and biometric profiling.
The first survey happened during 1898-1920. Cadastral Survey was undertaken under Bengal (Bihar) Kashtkari Adhiniyam, 1885. The word 'cadastral' means a public record of the extent, value and ownership of land for purposes of taxation. This type of survey involves the preparation of village maps showing the boundaries of groups of holdings, large scale plans of survey fields showing the boundaries of each holding,topographical details and all measurements, and land registers giving the number, nature, tenure, area assessment and reputed ownership of each holding. This survey is repeated from time to time when changes occur in occupation and in the boundaries of fields particularly when such changes are too numerous to be dealt with by the ordinary revenue staff. The term 'cadastral' has been derived from the French word 'cadastre' which means public register of ownership of parcel of land. In fiscal terms, it means a register of properties according to their value.
The second survey happened during the 1960s. This revisional survey of land started after the abolition of zamindari in 1950 but 12 districts of Bihar were not covered.“Revisional Survey” means survey operations initiated and conducted on the basis of the blueprint map of the cadastral survey in order to update the land records.
The third survey of the land for the consolidation of land is happening under Bihar Special Survey and Settlement Act, 2011 and Rules under it and the related provisions of the Bihar Consolidation and Holding and Prevention of Fragmentation Act, 1956. The Bihar Special Survey and Settlement (Amendment) Rules, 2019 defines “Special Survey”. It means the construction of digital maps and construction and maintenance of record of rights to be made on the basis of position of the property and ownership relating to the land with the help of modern technology by using aerial Photographs/Satellite Images - taking the latest position of land.” The special survey work has been pending at least since September 2020 after the amendment in the law in 2019.
Bihar special survey work for the raiyats/land holders has started in compliance with an Order No. 177 dated January 11, 2024 issued by the Directorate of Land Records and Survey, Government of Bihar and the order of Chief Minister dated July 3, 2024. Letter No.:- 252, dated August 24, 2024. A formal announcement in the format of Form-1 was made for village-wise land survey and settlement between August 1-7, 2024. A village-wise Gram Sabha was scheduled between September 16-30, 2024. The survey exercise and publication of the final record of rights is required to be completed by August 24, 2025.
A review of the implementation of the special survey law and the related provisions under the Bihar Consolidation and Holding and Prevention of Fragmentation Act shows that the drawn out process of survey and settlement is likely to increase social unrest and increase the burden of civil and criminal cases related to land disputes. The claim that work of special survey and settlement, when completed, would reduce the cases of land disputes is not supported by any study. If over 60 per cent of incidents of crime in the state occur mainly because of land-related disputes, the spate of reported crimes amid the current special survey indicates that these incidents are likely to increase in near future if the exercise is not stopped in supreme public interest.
A careful scrutiny of the provisions of these laws has revealed that there is no provision which is linked to land dispute related crimes. There has been no study undertaken in this regard in the State. It is not surprising that despite the announcement that the special survey work started in September 2020 and was to be completed by December 2023, it made no progress. There was another announcement made in September, 2022 that the special survey and settlement of lands will be completed by November 2024. On July 3, 2024, Chief Minister sought completion of the Special Survey by July 2025. The special survey commenced in 45,862 revenue villages to digitize land data with a one-year time frame for completion. He repeated the observations he had made in September 2022 about the exercise being aimed at reduction of crimes related to land disputes. He repeated them again in July 2024.
The framers of the law did not factor in the implications of these laws on non-resident Biharis who constitute over 15-20 million. Between 1951 and 1961, about 4 percent of Bihar’s population migrated. In 1971, 2 percent of its population migrated. In 1981,the total number of migrants more than doubled at around 2.5 million. During the inter-censual period between 2001 and 2011, around 9.3 million Bihari people migrated (Census 2011). Had the Census been conducted on time in 2021, it would have shown how these laws are unjust and insensitive to the just needs of non-resident Biharis and their resident families.
After its passage from the Bihar legislature, the Bihar Special Survey and Settlement Act, 2011 was published in the Bihar Gazette on December 22, 2011 subsequent to Governor’s assent on December 20, 2011. Its purpose can be ascertained only by a harmonious construction of relevant provisions of the Bihar Tenancy Act, 1885 (as amended till 2017) and Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956 (as amended in 1970, 1975 and 1982). The purpose of these laws is to undertake survey of the land and regularize the status of raiyat and create a record of rights.
The special survey is aimed at conducting surveys in the whole of the state using modern technology, aerial survey technique with ground verification by means of Digital Global Positioning System (DGPS), and Electronic Total Station (ETS). It is also aimed at preparation and maintenance of to-date record of rights for revenue and land resource management, computerisation of land records in uniform way to address gap between computer data and to-date ground realities, conclusive ascertainment of current title, possession and classification of lands - for agricultural credit, subsidy, relief and insurance related activities. It provides for identification & demarcation of public lands, Government lands, lands treated as common property resource and the like-to record it in the Record of Rights. It provides for Publication of record of rights and consolidation operations after special survey and settlement under the Bihar Consolidation & Holding & Prevention of fragmentation Act (as amended in 1975).
The Bihar Consolidation & Holding & Prevention of Fragmentation Act deals with the closure of the consolidation operations. As soon as possible, after fresh maps and records have been prepared and certificates of transfer have been issued to the raiyats under the scheme, the State Government shall issue notification in the Official Gazette stating that the consolidation operations have been closed in the unit. It prohibits transfer of lands. Section 37 of the Act deals with "Bar of jurisdiction of Civil Courts. It states: "No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. " Section 37A of the Act states: "Authorities under the Act to be deemed courts of competent jurisdiction." Section 37 B of the Act states that "Authorities under this Act have powers and privileges as are vested in a Civil Court in certain matters".
Section 14 of the Bihar Special Survey and Settlement Act provides for maintenance of records in digital form. Section 20 of the Act overrides all other laws. Section 21 of the Act makes State a party in “certain cases" but does not define “certain cases”. These laws put a bar on the jurisdiction of civil Courts which indicates the trend of executivisation of judicial functions.
The provisions incorporated in the Bihar Consolidation & Holding & Prevention of Fragmentation law during internal emergency (1975-1977) in this regard need to be subjected to a test of constitutionality. In order to restore peace in rural and urban areas of the State disturbed due to the special survey, there is a compelling need to stop the exercise and revise the law and rules in consultation with all the land rights holders and farmer organisations to make it more pragmatic. It must take people into confidence regarding the relationship between the special survey and the consolidation of land under the Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956.
Notably, in November 2019, NITI Aayog's Model Conclusive Land Titling Act was framed. Its Section 56 states: Compulsory use of biometric identification-The Authority may, by notification from time to time in this regard, appoint a date from which it shall provide compulsory use of one or more than one particular personal identification system such as biometric authentication, Iris diagram or finger-print,or any other such method for establishing the identity of any person, for the purpose of any transaction or transfer of any Immovable Property recorded in the Register of Titles. Its Section 65 (2) (m) provides power of the State Government to make Rules states: "use of biometric authentication including AADHAR or other identification." NITI Aayog shared this Model Act and the Maharashtra Land Titling Act with the States for adoption.
A Bihar Gazette Notification dated May 9, 2023 stated that Aadhaar Number is voluntary but news reports in Bihar say, it is mandatory! The fifth sentence in the last paragraph of the Bihar Gazette notification dated May 9, 2023 clearly says, "Aadhaar authentication" is "on voluntary basis" for the registration of land. It has to be voluntary because of Section 7 of the Aadhaar Act 2016. The second para of Section 7 of the Aadhaar Act 2016 implies that Aadhaar is not mandatory for anything. It shows that due to some communication gap or ignorance of relevant legal provisions, there is misreporting of facts regarding Aadhaar being mandatory. But contrary to this notification, Aadhaar Number is being demanded during the registration of land. Coincidentally, the Union Budget by the Union Finance Minister unveiled plans for 'Bhu-Aadhaar' unique IDs for rural land parcels and digitization of urban land records by 2027.
Bhu-Aadhar refers to Unique Land Parcel Identification Number (ULPIN). ULPIN is part of the Digital India Land Records Modernization Programme (DILRMP). It is a 14-digit identification number accorded to a land parcel based on the longitude and latitude coordinates of the land parcel and depends on detailed surveys and geo-referenced cadastral maps. ULPIN is a Single, Authoritative Source of Truth for information on any parcel of land or property to provide Integrated Land Services to the citizens as well as all stakeholders. The ULPIN system is based on an international standard which complies with Electronic Commerce Code Management Association (ECCMA) standard and Open Geospatial Consortium (OGC) standard. There is a formula to generate and assign ECCMA (Electronic Commerce Code Management Association) Standard prescribed 14 digit Unique ID “Property Natural Identifier Unit” (PNIU) using the parcel Geo Referenced coordinate of vertices. This computationally generated Unique ID would be organically dependent on Parcel vertices expressed in Lat/Long coordinates “Property Natural Identifier Lot” (PNIL) and Unique ID (PNIU) would spatially be pointing to the surface of the parcel.
The exercise of special survey for consolidation of land and biometric authentication through Aadhaar Number as proof of conclusive land title is happening unmindful of the fact that the Aadhaar case is pending before a 7-judge Constitution Bench of the Supreme Court. It is apparent that it is related to the the Asset Monetization programme and the National Monetisation Pipeline (NMP), a Government of India's initiative to establish a roadmap for "monetisation ready" assets. Pursuant to the announcement made in the Union Budget 2021-22, the NMP is listing potential core assets of Union Government Ministries/PSUs for monetization during the period 2021-22 to 2024-25. For instance, there are 258,000 acres of land with port trusts and railways has 113,000 acres. The State government too has surplus land. The special survey and settlement exercise aims to ascertain surplus land in the state for possible announcement of distribution ahead of the upcoming assembly elections. The plan was prepared by NITI Aayog in collaboration with the concerned Infrastructure Ministries in pursuance of the recommendations made by the Finance Ministry’s Vijay Kelkar Committee in 2012. Notably, NITI Aayog has sent a Model conclusive land titling law to the States. It is apparent that these initiatives pave the way for social policies guided by digital-biometric determinism and discredited Eugenic thinking.
Conclusion
Amidst growing unrest, on September 20, 2024, Bihar revenue and land reforms minister announced that the government is determined to go ahead with the ongoing land survey in the state but more time would be given to landowners for submission of self-declaration regarding ownership of land. “We have looked into the matter and the deadline would be extended. The official communication will be issued in a few days. We have reviewed the ongoing process, and it has been going well. The objective of the entire exercise is to help the genuine people with digitised land records to end disputes once and for all. They will get time to file self-declaration”. The official communication has not been issued as yet. The problem of land in many families which is still in the name of grandfathers and great grandfathers, while several generations shifted outside has not been addressed by the government. Nothing has been done to respond to the allegations of corruption at the ground level in getting documents prepared. Digital platform for procuring land-related documents is a problem rather than a solution in rural areas. The land acquisition for major projects is also a big challenge for the survey. Even if land is acquired, giving compensation becomes a challenge due to lack of proper land records and documents.
The survey does not factor in the temporary nature of the diara land and frequent changes in river-courses which has led to many disputes and lawsuits related to land and fishing rights. The complications which arise due to alluvial and deluvial land has been ignored. The land in Bihar is subjected to alluvial and deluvial action by the rivers. The land which is found adjacent to the river course and made up from the changing course of the river, is known as alluvial land. It refers to lands gained from the rivers by alluvion. The land lost due to river is diluvion land. It does not deal with the legality of suit land purchased through auction sale given the fact that the auction sale is illegal for want of notice and also under the provisions of Money Lenders Act as well as due to misdescription of the sold land.
According to state government's data, there are 33.16% poor families in the Other Backward Classes (OBC); 25.09% poor families in the General Category; 33.58% poor families in the Extremely Backward Classes (EBC); 42.93% poor families in the Scheduled Castes (SC); and 42.7% poor families in the Scheduled Tribes (ST). From among these poor and Dalits, a large number were given land by erstwhile landlords. They are likely to be deprived because of absence of required documents. Dalits who came to possess land because of struggle by people's movements are likely to be adversely affected because of paucity of property documents. The concerns of those who live in urban areas but have land in rural areas has not been addressed as yet. There is nothing in the law, the rules and the technical guidelines to suggest that the issues of ownership in the matter of huge number of pending land ownership dispute related court cases has been factored in.
In such a backdrop, the survey must start after ascertaining and factoring in all these aspects in general and the status of Court cases related to land ownership disputes in particular at the Gram Sabha level.
For all the special land survey documents and technical guidelines refer to https://dlrs.bihar.gov.in/compendium.pdf
Dr. Gopal Krishna
The author is a lawyer and a bilingual philosophy and public policy researcher. He has given expert testimony before the Indian, European and German Parliamentary Committees in the matter of national and international legislations on the land acquisition, national identification, hazardous waste trade, corporate code of conduct, civil liability for nuclear damage, consumer protection and biological diversity. E-mail:forcompletejustice@gmail.com
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