ALLIANCE FOR SUSTAINABLE & HOLISTIC AGRICULTURE (ASHA)
SEEKS ON NITI AYOG’S MODEL AGRICULTURAL LAND LEASING ACT 2016
This note has been prepared based on ASHA’s affiliate Rythu Swarajya Vedika (RSV)’s work on the rights of tenant farmers in the states of Andhra Pradesh & Telangana. Together with other farmers’ organizations, RSV has struggled for the implementation of the A.P. Land Licensed Cultivators Act (2011) and for bringing improvements in the Act so that the large number of tenant farmers in the state get justice and access to institutional credit and all other government support systems meant for cultivators. Having worked extensively on the issue of farmer suicides, we have found that the highest extent of agrarian distress is being faced by tenant farmers in A.P. and Telangana and about 70% of the farmers who commit suicide are tenant farmers. This is true, as per civil society reports, in Karnataka and Odisha too. Therefore, if Governments are serious about addressing the agrarian distress and to stop farmer suicides, it is an urgent imperative to address the situation of tenant farmers.
ASHA would also like to state upfront that legalizing land lease is not a substitute to addressing landlessness and its effect on livelihood security, justice against structural injustice and inequities, and relationship to social status in rural India. Meaningful addressal of land rights is still a pending issue and that needs to be addressed squarely too.
Alliance for Sustainable and Holistic Agriculture (ASHA) participated in some of the deliberations during the drafting of NITI Aayog’s Model Agricultural Land Leasing Act, and also provided serious inputs subsequently. We have been involved in the discussions on the Model Act in states such as Andhra Pradesh, Odisha, Karnataka and Telangana. In the process, we have gained a deeper understanding of the provisions of the Model Act and its implications. Combining our field experience of working with tenant farmers in different states, and our study of the Model Act and the A.P. Land Licensed Cultivators Act, this note has been prepared.
(1) The Model Land Leasing Act 2016 of NITI Ayog is fundamentally flawed and RSV’s earlier representation to the Government of India on this matter is annexed.
(2) The biggest issue with the Model Land Leasing Act is the huge asymmetry between the provisions for the Lessor (creating a whole lot of protections – not putting any Responsibility), and the provisions for the Lessee (removing existing protections in law – while not adding any actionable Rights). For example, the Act does not even mention in the Responsibilities of the Lessor that the Lessor is not eligible to obtain Crop Loans, disaster relief or other subsidies on the leased-out land during the lease period. Unless this asymmetry is addressed, it would be a big injustice to the interests of the tenant farmers, taking things backward even from their current situation.
(3) The Model Act 2016 does not place any responsibilities on the State Government to provide recognition to the Lessee cultivators and ensure that they get access to all required support systems. It simply puts the entire onus on the Lessee cultivators to get into an agreement, get it registered and so on. In this respect, the A.P. Land Licensed Cultivators Act (2011) is much better for the Lessee cultivators because it places an obligation on the Government to identify all the lessees (or licensed cultivators) and issue a loan and other benefits’ eligibility card.
(4) The framing of the Model Act 2016 assumes that once the land owners are assured that their ownership rights are protected and their “fear” is removed, then the entire recording of leases and entitlements of Lessee cultivators will happen automatically. Therefore, the provisions are predominantly geared towards creating and protecting the rights of the Land-owners, and not creating any rights or protection for the Lessee cultivators.
This ignores the ground realities. We can cite the example of collective land leasing by Kudumbashree JLGs (Joint Liability Groups) in Kerala, even though land leasing is banned in the state. It is apparent that if there is a political will to support cultivators who lease in land, including women’s collectives, much can be changed for the betterment of such cultivators. Here, Panchayats are facilitating such leasing in and collective cultivation with both backward and forward linkages put into place.
It is also a reality that about 32 lakh acres is being cultivated by tenant farmers in A.P. without jeopardizing the rights of the owners. In the past few years, more than 5 lakh tenant farmers have been issued Loan Eligibility Cards every year, without a single case of tenant farmers claiming any rights. On the other hand, the Land owner-Lessors have been enjoying the benefit of many government schemes meant for cultivators – including the interest-free and pavala-vaddi loans, disaster relief, input subsidies, and so on.
Unless there is an onus on the government to ensure that non-cultivators will not get benefit of government schemes, the current situation will continue.
(5) The NITI Ayog Act says that even under an oral lease, the rights of the land owners are protected under the Act. At the same time, there is no process that obligates the state government to recognize the oral Lessees and ensure their entitlements. This is a huge contradiction – what is the incentive for any land owner to have a written lease and register it?
(6) The most important aspect is the Entitlements and Eligibility given to Lessee cultivators. These are given in (Sections 5(d) and 5(e)), but the Act doesn’t say how they are actionable. Unless we have an explicit section on the Responsibilities of the State Government to ensure that the Entitlements and Eligibility are realized, this is meaningless.
(7) There should also be penal provisions if land owners are leasing out but not deliberately not recording the leases, or availing of benefits meant for actual cultivators at the expense of the Lessee.
In summary, our demands are as follows:
(a) State Governments should not take such a flawed Model Land Leasing Act as a starting point for making a new law.
(b) State Governments should hold broad consultations on the AP Land Licensed Cultivators Act 2011 and earlier Tenancy Act and come up with a way forward for protecting the interests of the tenant farmers and sharecroppers and ensuring that they get access to all support systems and subsidies. How to make agriculture economically sustainable for the persons who are actually doing the cultivation should be the main driving objective. The NITI Ayog’s Model Land Leasing Act should be discussed in this context.
(c) Meanwhile, the Governments of Andhra Pradesh and Telangana should focus on proper implementation of the 2011 Act, and strengthening it on the basis of recommendations already given by the Working Group in 2014.
With the above-mentioned serious reservations, we are providing a set of amendments to the NITI Aayog Model Act, in order to address our concerns at least partially. We also call upon all State Governments like Maharashtra and Odisha which are considering the NITI Aayog Model Act, to have wide-ranging consultations with all the farmer organizations who are involved in working on these issues.
CLAUSE BY CLAUSE AMENDMENTS PROPOSED
|NITI Aayog Model Agricultural Land Leasing Act 2016
Statement of Objects and Reasons:
An Act to permit and facilitate leasing of agricultural land, to improve agricultural efficiency and equity, access to land by the landless and semi-landless poor, occupational diversity and for accelerated rural growth and transformation; provide recognition to farmers cultivating agricultural land on lease for enabling them to access loans through credit institutions, insurance, disaster relief and other support services provided by Government, while protecting fully the land rights of the owners; and matters connected therewith or incidental thereto.
An Act to permit and facilitate leasing of agricultural land, to improve agricultural efficiency and equity, access to land by the landless and semi-landless poor, occupational diversity and for accelerated rural growth and transformation; provide recognition to farmers cultivating agricultural land on lease for enabling them to access loans through credit institutions, insurance, disaster relief, marketing, subsidies, and other support services provided by Government, while protecting fully the land rights of the owners; and matters connected therewith or incidental thereto.
3. Land Lease – Agreement, Termination, Rights and Responsibilities
3 (b) Provided that the land leased in and cultivated by the Lessee, together with any land owned by the Lessee, does not exceed the limits prescribed in the Land Ceiling Act.
|(d) The Land owner-Lessor and the Lessee Cultivator shall enter into a written lease agreement with mutually agreed terms and conditions.
Provided that an oral lease shall also be legal in the sense that a Land owner-Lessor leasing out land on oral basis shall not forfeit his/her right over land because the lease agreement is not written as required under this Act or that any other law requires it to be so.
|DELETE the second portion of the clause that oral lease shall also give the same protection to the Land Owner-Lessor.
(Explanation: The very purpose of giving an enabling support for a Lessee who has been invisible so far will be lost out, if the lease continues to be oral.).
3. Land Lease – Agreement, Termination, Rights and Responsibilities
(f) Government shall not fix the duration of the lease period, as this shall be decided and mutually agreed upon by the Land owner-Lessor and the Lessee Cultivator.
Provided further that any period of lease as per the lease agreement under this Act shall not create any protected tenancy right on a Lessee Cultivator
(g) Government shall not fix a minimum or maximum lease amount in fixed cash or kind or share of produce to be given to the Land owner – Lessor for use of the land as this shall be decided and mutually agreed upon by the Land owner- lessor and the Lessee Cultivator;
DELETE the first portion of this sub-clause 3(f) and entire sub-clause 3(g) about government not fixing duration, lease amount etc.
(Explanation: The statement that the government shall not fix the duration…. Is understood, given that (d) and (e) already cover this)
3. Land Lease – Agreement, Termination, Rights and Responsibilities
(h) The lease agreement may or may not be registered, depending upon the mutual agreement of the Land owner-Lessor and the Lessee-Cultivator.
The lease agreement shall be registered at the local Panchayat level where the agricultural land falls, attested by the Village Revenue Officer.
(Explanation: This is so that there is some oversight to the entire lease agreement, especially given that there may be an unequal relationship between lessee and lessor).
4. Rights and Responsibilities of Land Owner – Lessor
a) (ii) does not cause damage to soil health,
MODIFY: a) (ii) does not cause willful damage to the land
(Explanation: this provision of damage to soil health can be easily used to evict a Lessee even during the term of the lease, given that even application of fertilizer can be said to cause damage to soil health)
h) Shall not be eligible to obtain crop loans for the leased-out land from banks, cooperative societies or any government institutions during the currency of the lease period,
i) Shall not be eligible for those benefits and government support systems which are meant for the actual cultivator, at the expense of the Lessee, including interest subvention on crop loans, crop insurance, disaster relief and subsidies for income security and other purposes.
5. Rights and Responsibilities of the Lessee Cultivator
e) Shall be entitled to obtain crop insurance, disaster relief or any other benefits or facilities provided to the farmers by the State or Central Government…
MODIFY: e) Shall be entitled to obtain crop insurance, disaster relief, marketing, subsidies or any other benefits or facilities provided to the farmers by the State or Central Government…
CHAPTER – III
Enforcement of Lease Agreement and Dispute Resolution
MODIFY Chapter Title to:
“Facilitation of Land Leasing and Enforcement of Lease Agreement and Dispute Resolution”
INSERT BEFORE Section 8
Facilitation of Land Leasing
(i) The Competent Authority shall as prescribed, take up extensive campaigns to create awareness amongst land owners and landless/semi-landless cultivators about the provisions of the Act through involvement of SHGs, Gram Panchayats, Tenant Farmer Associations, Agriculture Workers Unions, Farmers’ Associations etc.
(ii) The Competent Authority shall strive to build a village wise database of non-resident non-cultivating landowners and landless cultivators within a prescribed timeframe and in a prescribed manner.
(iii) The Competent Authority shall take necessary steps as prescribed towards bringing in as many non-cultivating landowners and landless cultivators into the ambit/coverage of the provisions of this Act.
(iv) The State Government shall make provision of additional incentives and support for collective cultivation under Joint Liability Group mechanism, especially of women farmers. Provided further that such JLGs will be supported with Kisan Credit Cards, Insurance coverage, interest subvention on par with other farmers, marketing support, and any other direct subsidies. Additional incentives shall be provided for leasing in of fallow lands in a JLG approach.
(v) The State Government shall establish a Credit Guarantee Fund to facilitate loans to Lessee Cultivators.
|8. Enforcement of lease terms
The Competent Authority shall be responsible for the following:
(i) Enforcement of terms of lease;
(ii) Facilitating return of the leased out agricultural land to the Land owner Lessor on expiry of the lease period.
(iii) Taking necessary steps as prescribed to ensure that the landless lesee-cultivator gets the benefit of crop loan from banks/cooperative societies or any other government institutions, obtain crop insurance, disaster relief or any other facilities, subsidies and schemes provided by the State or Central Government based on the lease agreement and during the currency of the lease period.
(iv) Issuance of Lessee Cultivator Entitlement passbook, in a timely manner for credit access and insurance enrollment to take place for the agricultural season;
Provided that the Lessee Cultivator Entitlement Passbook issued would be for the period of lease as specified in the lease agreement, and would be proof of the entitlement of the Lessee Cultivator to all benefits and facilities as specified in 5(d) and 5(e).
(v) Filing of the list of Lessee Cultivator entitlement passbooks issued with all relevant details with the District Level Bankers Committee, for facilitating access to credit, and with the Agriculture, Revenue and Marketing Departments.
(vi) Ensuring that the status of cultivation of the lands for which lease agreements are executed under this Act shall be recorded in the cultivation account (Adangal/pahani) for the entire period of the lease and updated, subject to the renewal of the lease agreement.
(vii) Taking necessary steps to ensure that the landowner-Lessor shall not be eligible to raise loans from banks/cooperative societies or any other government institutions obtain crop insurance, disaster relief or any other facilities and schemes provided by the State or Central Government based on the lease agreement and during the currency of the lease period. Land Owner – Lessors who lease out land but do not record the lease under this Act, or avail of benefits from government which are explicitly meant for actual Cultivators may be subject to legal action for fraud and misrepresentation.