New Delhi: On May 30, 2021, as India reeled under the second wave of the pandemic, a team of surveyors from Bihar's revenue department landed up in the western town of Chhapra. At a street near the city municipality building, where the state government has proposed a new flyover, the officials measured the land where shops and homes would be demolished to make way for the construction.

About 35 people who live and work in these buildings came out to protest. The government had not offered them any compensation for the loss of land, they argued. But this was unsurveyed land and hence public property, the team retorted.

"We have been here for generations," said Atul Kumar, one of the protesters whose house and metal fabrication workshop are marked for demolition. "And now they are just asking us to leave without any compensation."

Bihar is among the eight Indian states--and two Union territories (including Delhi)--that have not surveyed significant parts of their geographical area--ranging from 2% in Rajasthan to 75% in Delhi--according to data compiled in 2020 by the National Council for Applied Economic Research. Among the states, Bihar has the highest proportion of such unsurveyed land--20% of its area or 18,832 sq km, equivalent to the state of Nagaland. Most unsurveyed land lies in urban areas in India, according to the NCAER study.

In over a decade, the Union government's Digital India Land Records Modernization Programme, which seeks to provide states with financial and technical help to update and digitise land records, has been able to carry out surveys on just 3% of the total geographical area of the country. In 2020, the government launched the SVAMITVA programme to survey residential areas in rural areas but this mission leaves out urban areas.

Why have so many areas in India been left unsurveyed and how does this leave people vulnerable to eviction without any compensation? For answers to these questions, we take a close look at Chhapra's case.

To begin with, only farms

Andaman and Nicobar Islands, Bihar, Haryana, Karnataka, Manipur, Delhi, Rajasthan, Punjab, Telangana and West Bengal lack records for parts of their land area, according to the NCAER, which obtained the information from state governments as a part of its effort to create a Land Records Services Index that measures the quality of state land records. The data on unsurveyed land relate to only unforested areas.

There are different reasons for why various regions remained surveyed, many of them going back to the time the British administered India. While initial land surveys in India date back to the Mughal Empire, the most prominent ones were carried out by the colonial government in the late 19th and early 20th century, according to a report of the department of land resources under the Ministry of Rural Development.

But the British only surveyed agricultural lands, leaving out inhabited areas of villages and cities as well as forests, said Deepak Sanan, a retired Indian Administrative Service officer and lead author of the NCAER study. "The point [for the British] was to survey areas from where land revenue came," he said.

After India adopted its Constitution in 1950, the maintenance of land records became the state governments' responsibility. They were supposed to survey all the lands again but the pace of this work varied, often grinding to a near-halt in some states, Sanan said.

Slopes, mining zones, riverine lands excluded

As a United Nations Development Programme report found in Odisha, land surveys were carried out on only flat land; slopes beyond the 10-degree gradient were classified as uncultivable wasteland. But these stretches are cultivated by tribal households without land titles.

In Karnataka's Ballari district, lands belonging to 12 villages that were a part of the former princely state of Sandur were supposed to be surveyed under a 1977 law but this has not been done yet. The villages are in iron ore mining areas and with no land rights in hand, villagers came under pressure to sell their land to mining companies and related infrastructure units.

Unsurveyed lands in Bihar are called 'topo' lands and are mostly situated on the banks of silt-laden rivers like the Ganga that shift their course every few decades, creating new land parcels. The first surveys in Bihar were carried out by the British between 1905 and 1915 and left out lands that subsequently emerged from the river. In 1959, the Bihar government decided to carry out a revisional land survey, but this has still not been completed despite a 2011 law requiring its expedition, according to a proactive disclosure under the Right to Information Act by the state revenue and land reforms department.

There are more states, such as Chhattisgarh, which have not surveyed forested lands. In India's north-eastern region most states have surveyed only urban lands and not community-controlled rural areas, said Sanan of NCAER.

To address the lack of surveys on forest lands, the Forest Rights Act of 2006 required that unsurveyed habitations within forests be converted into revenue villages before recognising the rights of Adivasis and traditional forest-dwellers.

This exclusion of forests and inhabited areas from land surveys is a crucial gap in land governance, said Sanan, because "forest areas are the most vulnerable lands, while inhabited lands are economically valuable".

In 2008, the government included a component in its land records modernisation programme to provide funds and technical assistance to states to carry out surveys on lands, as we said. However, it has made just 3% progress since then--and that includes data for the resurvey of already surveyed land, according to the scheme's progress dashboard.

In 2020, the government launched another programme to survey lands. The SVAMITVA (Survey of Villages Abadi and Mapping with Improvised Technology in Village Areas) scheme, under the Ministry of Panchayati Raj, aimed to survey inhabited areas in villages and issue property cards to residents. But the scheme leaves out urban inhabited areas like in Chhapra, which constitute the biggest chunk of unsurveyed lands, as the NCAER study found.

State policy not clear

In Chhapra, the under-construction flyover passes through a densely populated neighbourhood and requires the partial demolition of 295 structures, according to a letter from the district collector of Saran (which covers Chhapra) to the state revenue department in June 2020. Yet, the area is unsurveyed land and there is no provision under law to grant land titles to the people living there, the letter said.

In 2015, the Patna High Court held that the state government could not evict people from unsurveyed land under the Bihar Public Land Encroachment Act 1956 because "the nature of [unsurveyed land] is yet to be established by the authorities" and hence is not "public land" as per the Act. But, in 2017, the state's law department said that all unsurveyed lands were state property.

Legislators have often raised questions in the state assembly about the need to survey such lands. In 2018, Mithilesh Tiwari said there was "a large chunk of land in Bihar, particularly along the rivers" that was unsurveyed. "People have been living on it for centuries and the government even takes taxes," Tiwari said. The government responded by assuring that it would bring out a policy on unsurveyed lands "soon".

"There are huge tracts of unsurveyed land in Bihar and Uttar Pradesh along the Himalayan rivers like Ganges and Gandhak," said a Bihar government official closely involved in land governance, who declined to be identified as he is not an authorised spokesperson.

The Bihar revenue department has, on several occasions since 2019, considered developing a policy to survey unsurveyed but occupied lands, according to the agenda of the department's meetings with district collectors (see here and here).

But there is no policy yet. In March 2021, state revenue and land reforms minister Ram Surat Kumar said in an interview that the state government had found that "land mafia" was involved in grabbing unsurveyed lands. Hence the government had set up a committee to come up with ways to grant ownership to the rightful occupants of such lands.

In January 2021, Chhapra's district collector issued a memo to Bihar Raj Pul Nirman Nigam Limited, the state government agency that oversees flyover constructions, stating that disputed and unsurveyed land belongs to the government. The state, the letter said, would only reimburse the cost of demolition if the residents were to demolish the marked properties themselves, according to a writ petition filed before the Patna High Court by 30 residents.

On March 10, the court ordered status quo on the project. The case is still being heard.

Chhapra protests

Saran district collector Nilesh Deore told IndiaSpend that the state advocate general had in 2017 said that lands that come up on riverbeds are government property. Following this, the state government stopped any registration or mutation of properties in unsurveyed lands, including the disputed area in Chhapra. Deore declined to comment further stating that the matter was pending before the High Court. "The total area for demolition is just 61 decimals (0.61 acres). This is an important project which will ease traffic congestion," he said.

In their petition before the high court, the residents have submitted documentary evidence of their possession of the land including property taxes and sale deed documents--some of it dating back to the 1930s.

"Merely because land has not been surveyed, [it] cannot be a ground to draw a presumption adverse to the interest of the citizens," their petition argued. It asks for a direction to the state to not dispossess them until the surveys are completed and their right to the land is decided.

Affected residents have organised as the Chhapra Shahar Bhumiswami Sangathan (Chhapra City Landowners Association), held press conferences to air their views and carried out street marches. They have said that they are willing to give up their claims if they are paid compensation. They have also questioned how their land, in the heart of the city, was left unsurveyed.

"The district collectorate and district courts are also located between our houses and the Ganges river. If we are on unsurveyed lands then so are they," said Atul Kumar, one of the protesters in Chhapra.

The land did eventually get surveyed--on May 30, 2021, during the pandemic--but this was for the construction work and not to create land records. That evening, the revenue official leading the survey filed a criminal case against the residents who had protested, charging them with voluntarily causing hurt, preventing a public official from discharging their duty, and violating the Covid-19 protocol under the Disaster Management Act, 2005, as per the First Information Report filed with the police. In his complaint, the official said that the 'status quo' order of the High Court did not apply to the survey.

The Bihar government should have carried out a survey by now on the land, said Pranab Ranjan Choudhury, director of the Center for Land Governance in Bhubaneshwar. "And if this was encroachment, then the state should say why it wasn't removed earlier, and whether the responsible official was penalised," he pointed out.

Choudhury said that even if the occupants are encroachers, they are dependent on the land and must be offered compensation and rehabilitation to avoid conflict. In Odisha, the state offered land titles to residents of informal settlements, and in the case of the Ahmedabad Metro, the Gujarat government offered rehabilitation after verifying property claims using available documentary evidence, family trees, and participatory appraisals, he said. In the case of the Ahmedabad Metro, all affected people are eligible for compensation and rehabilitation irrespective of their land ownership status.

Former bureaucrat Sanan said that if the state admits the rights of the people, it would have to acquire the land under the Land Acquisition Act and pay double the market rate as compensation. Now that the state has the legal opinion to back it, it would rather classify the occupants as encroachers to get the flyover built quickly, he said.

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