#121
August 2004
From Sharecroppers to Landowners:
Paving the Way for West Bengal’s
Bargadars
Robin Nielsen and Tim Hanstad
This report may be reproduced in whole or
in part with acknowledgment as to source.
© Copyright Rural Development Institute 2004
ISSN 1071-7099
The Rural Development Institute (RDI), located in Seattle, Washington, USA, is a
nonprofit 501(c)(3) corporation. RDI is a unique organization of lawyers devoted to
addressing the problems of land reform and related issues in less developed countries and
in countries whose economies are undergoing transition. RDI’s goal is to assist in
alleviating world poverty and instability through land reform and rural development.
RDI staff have conducted field research and advised on land reform issues in over 40
countries in Asia, Latin America, Africa, Eastern Europe, and the Middle East. For
more information, please visit the RDI web site at www.rdiland.org.
RDI’s Executive Director, Tim Hanstad ([email protected]) and Staff Attorney Robin
Nielsen ([email protected]) are based in Seattle.
Acknowledgements
RDI thanks the Bill & Melinda Gates Foundation and the LeBrun Foundation for
their support of this research.
The fieldwork supporting this report was greatly enhanced by the significant efforts
and contributions of RDI’s West Bengal Representative, Partha Majumdar, Ramesh
Deshpande of the World Bank, and Professor S. Pal and Dr. M.B. Rahim from Visua
Bharati.
TABLE OF CONTENTS
EXECUTIVE SUMMARY ..........................................................................................................1
I.
INTRODUCTION ............................................................................................................3
II.
THE UPHILL CLIMB OF WEST BENGAL’S BARGADARS...........................5
A. The Cost of Insecure Tenure.................................................................5
B. The Achievement of Operation Barga ..............................................8
III.
TRANSACTIONS IN BARGA LAND .......................................................................9
A. RDI Rapid Rural Appraisal Fieldwork: April and October
2000 ..................................................................................................................12
B. RDI Rural Household Land Questionnaire: December 2000January 2001 ...............................................................................................17
C. RDI Fieldwork: November 2003..........................................................18
VII.
CONCLUSIONS FROM STUDIES AND FIELDWORK...................................23
A. Types of Transactions ............................................................................23
B. Transaction Characteristics................................................................24
VIII.
OPPORTUNITIES FOR FACILITATING TRANSACTIONS IN BARGA
LAND .................................................................................................................................25
VII.
CONCLUSION ...............................................................................................................32
EXECUTIVE SUMMARY
West Bengal’s sharecroppers, known as bargadars,1 have benefited enormously from the
State’s land reforms and legislation-implementation programs like Operation Barga. The
success of West Bengal’s efforts is evident in its villages: the economic and social status of
many bargadars has been significantly enhanced. So much so, in fact, that many
bargadars have taken the success a step further: on their own initiative, they are
negotiating for, and obtaining ownership of, the land they cultivate as bargadars.
But bargadars and landowners are paying unnecessarily high prices -- both monetary and
otherwise -- for these voluntary transactions. West Bengal’s Land Reforms Act did not
fully contemplate the prospect of bargadar transactions in barga land or the complexity of
those transactions. In order for bargadars to obtain land ownership, they often must
engage in inefficient and costly two-step transactions with their landowners, which
doubles administrative costs and requires significant time. Parties that attempt to avoid
the additional costs by electing a more streamlined, one-step process may save extra
stamp duty and fees, but often create a cloud on the title to the land. In both cases, the
parties are paying more (or obtaining less) than necessary, and the cumbersome nature of
the process likely has a deterrent effect on other potential transactions.
West Bengal has an opportunity to remove these impediments to voluntary transactions
in barga land. Moreover, the State could take steps to facilitate transactions without
sacrificing the legislative provisions that have protected (and ultimately empowered) its
bargadars for the last 25 years.
Options for Action
Based on transaction information obtained in the course of its fieldwork, RDI developed a
set of proposed options for encouraging and facilitating transactions in barga land. The
options for action to support bargadars are not mutually dependent, and thus may be
considered singly or in combination:
•
Implement and fund the existing legislative provisions authorizing a public
financing mechanism to help bargadars purchase barga land.
•
Design a single-step transaction for the sale or exchange of barga land to
bargadars that includes safeguards to confirm the non-coercive nature of the
transactions.
•
Exempt bargadar transactions in barga land from stamp duty and registration fees,
or reduce the costs.
A bargadar is a person who cultivates the land of another person on condition of delivering a share of the produce
of that land to that other person. West Bengal Land Reforms Act of 1955, as amended (“LRA”), § 2(2).
1
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•
Set a floor for the percentage of barga land that a bargadar receives in ownership
in exchange for the bargadar’s forfeiture of cultivation rights to the remainder of
the land.
•
Where a bargadar wishes to purchase barga land, provide a method for setting the
price of the parcel, require a minimum discount off the market price, and permit
the parties to negotiate for a higher discount.
•
In the event a bargadar wishes to be bought out of his cultivation rights, require
the price paid to the bargadar to be set at no less than 50 percent of the market
value of the entire parcel of barga land.
•
In conjunction with safeguards to protect small landowners, permit bargadars to
require landowners to sell or exchange barga land in order to allow bargadars to
obtain ownership of some percentage of the parcel, or the cash equivalent.
•
Establish a separate formula for transactions in true roadside barga land, i.e., land
that abuts a main road in certain designated blocks or districts. A bargadar who
wishes to sell his interest would receive no less than 25 percent of the market value
of the roadside barga land or an amount that will allow him to purchase a similar
amount of identifiable non-roadside land, whichever is more.
•
Where bargadars have obtained ownership of barga land, grant them the right to
sell the land, or set a temporally limited (5-10 year) ban on sales.
The above list is a menu from which one or more of the options can be selected. RDI
believes that West Bengal can best encourage and support the aspirations of its bargadars
with the following actions:
•
Streamline transactions with a single-step process that is exempt from
administrative fees and that establishes an equitable 50 percent floor, with
recognition of a separate formula for a very limited class of roadside barga land;
•
Activate the financing mechanism for bargadar purchases of barga land, as
already contemplated by the Land Reforms Act;
•
Empower the poorest bargadars by permitting them to mandate a sale or exchange
of barga land for ownership, provided that safeguards for small landowners are
included; and
•
Allow the new landowners (former bargadars) to realize the full value of their
land by permitting it to be freely transferable after expiration of a five-year period.
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I.
INTRODUCTION
In Birbhum District, a second-generation bargadar seeking ownership
of part of the five-bigha2 plot he cultivates negotiates with the
landowner for ownership of three bighas in exchange for giving up his
right to cultivate the remaining two bighas.
In South 24 Parganas District, a bargadar offers to release his barga
rights to a one-bigha parcel of roadside barga land in exchange for
ownership of a two-bigha parcel of agricultural land.
In East Midnapur District, a bargadar negotiates with the landowner
to purchase his barga land for a substantial discount off the market
price.
In the villages of West Bengal, these and other bargadars are negotiating for ownership of
the land they have cultivated -- often for generations -- but never owned. The
transactions are a welcome indication that the land reform efforts designed to regulate the
relationship between bargadars and landowners have been successful: many of the State’s
previously marginalized bargadars are exercising newly achieved bargaining power to
become landowners.
But transactions in barga land are arranged at a cost. Provisions in the West Bengal Land
Reform Act intended to protect bargadars from oppressive landowners also inhibit the
manner in which bargadars can acquire ownership of the land they cultivate. Bargadars
and owners have limited options: they may elect a two-step transaction that requires
them to pay the stamp duty and registration fees twice. They may attempt a single-step
transaction that results in a cloud on the title. Or the bargadars may abandon their
aspirations of land ownership altogether because they have been dissuaded by local
officials, who incorrectly inform them that the transactions are illegal, or by land
developers, who convince them that the terms of the transaction are non-negotiable.
West Bengal can remove these impediments and streamline the transaction process for its
bargadars and landowners alike. By supporting transactions in barga land, the State can
encourage and facilitate the next stage of land reform. Moreover, the State can take this
step without sacrificing the legislative provisions that have protected and empowered
bargadars for the last 25 years.
West Bengal should act now in order for the greatest number of bargadars to benefit from
legislative changes. Transactions are occurring, bargadars are paying a higher than
necessary price to acquire ownership of the land they cultivate, and some of the poorest
bargadars are excluded for transactions altogether. More important, existing protections
of bargadar rights are not immutable. In the event that the government changes hands,
Local custom dictates the definition of “bigha.” In the research areas, there are between two and three bighas per
acre.
2
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new legislation could undermine the “permanent,” heritable rights to cultivation that
bargadars currently enjoy and undo the achievements of land reform.3 The current
government can prevent the erosion of bargadar rights and solidify land reform progress
by helping bargadars become owners now.
This report provides a brief history of West Bengal’s bargadars and the State’s legislative
efforts to regulate the relationship between bargadars and landowners. The report
summarizes studies and fieldwork that have examined transactions in barga land and
analyzes how current law hinders those transactions. The report concludes with a menu
of options and recommendations for encouraging and supporting transactions in barga
land in the future.
Precisely this type of erosion of rights occurred in Egypt. Nasser’s 1950’s era land reform in Egypt granted tenants
“permanent,” hereditary rights and low rents that lasted for decades. But when the political will shifted in the
1990’s, new legislation eroded the tenants’ protected rights, and wider scale evictions followed. See generally
COUNTER-REVOLUTION IN EGYPT’S COUNTRYSIDE (Ray Bush ed. 2002).
3
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II.
THE UPHILL CLIMB OF WEST BENGAL’S BARGADARS
Sharecropping is one of India’s oldest institutions. Sharecroppers can trace their roots to
ancient times, when Moghal emperors, Hindu kings, and Muslim rulers demanded a
share of the produce from the lands within their domain.4 West Bengal’s bargadars date
back at least as far as the 4th century, when Buddhist monks and farmers reached
agreements regarding cultivation of land owned by monks. Buddhist principles allowed
monks to possess land but did not permit them to cultivate the land personally. As a
result, at places like Nalanda University where the monks owned extensive agricultural
lands surrounding the university, the monks leased the land to neighboring farmers in
exchange for a share of the produce. 5
The arrangement between the 4th century Buddhist monks and their neighboring farmers
foreshadowed West Bengal’s landowners’ relationship with the State’s bargadars. From
the earliest times until 1950, the arrangement between landowners and bargadars was a
matter of personal contract. The parties established the terms of the contract, usually
orally, and the individual arrangements reached between an original owner and bargadar
often continued for generations. 6
A.
The Cost of Insecure Tenure
The servient nature of the relationship between bargadars and the owners of the land they
cultivated created fertile ground for exploitation. West Bengal’s economy has historically
been agriculturally based, and, until recently, non-agricultural employment opportunities
were extremely limited.7 The majority of the population has long relied on the land for its
livelihood, and the relationships between landowners and those who cultivated the land
have reflected that dependence. Those who did not own cultivable land had no power to
demand employment or wages as a matter of right, and the landowner could dictate the
terms and conditions of the relationship.8
Bargadars traditionally served at the will of the landowners, and landowners maintained
the power of eviction over the bargadars. Bargadars farmed at a subsistence level and
were often dependent on landowners for food, inputs, and credit. Some additionally
depended on the landowner for a house site or for access to water or grazing land.
4
Bikram Sarkar, LAND REFORMS IN INDIA 10-17 (1989); D. Thakur, POLITICS OF LAND REFORMS IN INDIA 3 (1989).
Tushar Kanti Ghosh, OPERATION BARGA AND LAND REFORMS 1-4 (1986); Uday Shankar Saha & Mandira Saha,
Regulating the Sharecropper System: Operation Barga, in ACCESS TO RURAL LAND, RURAL POVERTY, AND PUBLIC ACTION
231 (A. De Janvry et al. eds. 2001); Anil Chakraborti, BENEFICIARIES OF LAND REFORMS: THE WEST BENGAL SCENARIO
18 (2002).
5
6
Ghosh, supra note 5, at 2-3; Chakraborti, supra note 5, at 18-19.
7
Praveen K. Jha, AGRICULTURAL LABOR IN INDIA 12-13 (1997).
8
C.B. Damle, LAND REFORMS AND CHANGING AGRARIAN RELATIONS 2-3 (1993).
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Bargadars had no leverage to exert against landowners; landowners could harass them,
threaten eviction, or physical abuse them with little or no consequence.9
The powerlessness of the bargadars contributed to the history of large-scale discontent in
the rural areas. Undivided Bengal and ultimately West Bengal endured centuries of
sustained peasant uprisings.10 These reoccurring peasant revolts were violent reminders
of the inequities of land control and distribution.
Although the need for legislation regulating the relationship between bargadars and
landowners was undeniable, reform was a long time coming. The Bengal Tenancy Act of
1885 contained no protections for bargadars, and the 1928 amendment actually placed
restrictions on recording bargadars as tenants.11 In 1947, following Independence and in
response to the violence of the Tebhaga movement, the State passed the Bengal Bargadars
Temporary Regulation Bill and the Bargadar Ordinance. However, despite their
promising titles, neither piece of legislation provided legal protections for bargadars, who
at that time were estimated to comprise approximately one-third of cultivator
households.12
It was not until the government’s enactment of the West Bengal Bargadars Act in 1950
that the rights of bargadars were delineated with an eye toward empowering bargadars in
their relationships with landowners. The terms of the Bargadars Act were ultimately
subsumed into Chapter III of the West Bengal Land Reforms Act of 1955 (“LRA”), which,
as amended, is the controlling legislation to this day.13
The LRA included provisions safeguarding the cultivation rights of bargadars,
determining the share of produce paid by bargadars, setting requirements for a
bargadar’s termination of cultivation, and establishing a jurisdiction for disputes
regarding barga land. Unfortunately, despite the legislative intent to protect and
empower bargadars, the adoption of the LRA resulted in evictions of some bargadars
because the law permitted landowners to resume “personal cultivation.” By definition,
“personal cultivation” included the use of hired labor and servants, a definition that
allowed landowners to retain control of their land without expending personal effort or
the labor of their immediate family. The LRA also permitted eviction of bargadars who
did not have proper documentation of their status, which was often difficult to obtain.
Amendments to the LRA closed these loopholes and added to the bargadars’ protections.
The amendments provide that a person cultivating the land of another is presumed to be
9
Saha & Saha, supra note 5, at 231.
The major uprising included the Sannyasi Revolt (1763-1800), the Minnapore Revolt (1766-1783), the Farazi Revolt
(1838-48), the Peasants’ Revolt in Tipperah (1844-1890), and the Tebhaga movement (1946-47). Ghosh, supra note 5,
at 5-6.
10
11
Ghosh, supra note 5, at 30.
12
Sarkar, supra note 4, at 171-72; G.K. Lieten, CONTINUITY AND CHANGE IN RURAL WEST BENGAL 147, 152 (1992).
13
Saha & Saha, supra note 5, at 231-32.
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a bargadar (with all the attendant rights) and the onus of proving otherwise rests on the
party alleging that the cultivator is not a bargadar.14 Bargadar rights to cultivate barga
land became hereditary.15 Shares for bargadars and owners were revised so that the
parties shared equally in the event that the landowner supplied the plow, cattle, manure,
and seeds; in all other cases, the bargadar was entitled to 75 percent and the landowner 25
percent.16
One of the most important provisions of the LRA prohibits capricious termination of a
bargadar’s right to cultivation. Before a landowner can terminate cultivation by a
bargadar, a government official must certify that one of the following situations exists:
(a) without reasonable cause, the bargadar failed to cultivate the land or has used
it for non-agricultural purposes;
(b) the bargadar has not personally cultivated the land;
(c) the bargadar has failed to tender the share of produce to the landowner under
the terms required by the LRA; or
(d) the landowner needs to bring the land under personal cultivation.17
The LRA establishes broad landowner rights to transfer their land.18 However, by 1981
amendment, bargadars received a pre-emptive right (i.e., right of first refusal) on the
transfer of any portion of the owner’s holding. Noncompliant transfers are void.
Furthermore, even if a bargadar does not exercise his pre-emptive right and the owner
sells or otherwise transfers the land, the bargadar retains his rights on the land, including
his right of cultivation and pre-emptive right against transfer.19 When taken as a whole,
the provisions largely prevent landlords from evicting bargadars – at least on paper.
In reality, these provisions were not enough in themselves to alter the fortunes of the
bargadars. The legislative changes and strengthening of bargadar rights in the LRA did
not give the bargadars the ability to enforce those rights against the landowners. Despite
the legislative enactments, for all practical purposes the bargadars’ relation to the land
and landowners continued to be dictated by the same insecurity of tenure that had
characterized bargadars for centuries.
14 LRA
15
§ 21(B)
LRA §§ 15(2) and 15A.
16 LRA
§ 16. The history of this provision is discussed in detail in Lieten, supra note 12, at 153-54.
17 LRA § 17. These circumstances contain definitions that further protect bargadars, such as a strict interpretation of
“personal cultivation” by a landowner, and the requirement that if the landowner resumes cultivation, such
resumption cannot leave the bargadar with less than one hectare to cultivate nor put the landowner in a position of
cultivating in excess of three hectares. Sec. 17.
18
LRA § 4.
19
LRA § 8. Transfers by exchange, partition, bequest, and gift are excluded. LRA § 8(2).
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B.
The Achievement of Operation Barga
In 1978, the newly elected Left Front government undertook the challenge of
implementing the legislative protections for bargadars with the launch of Operation
Barga.20 The program had a simple goal: to record the names of West Bengal’s bargadars
on the state’s revenue record and educate bargadars about their rights. Operation Barga
did not confer new rights on bargadars. Rather, through the intensive village-level
education program, bargadars received public recognition of their status, the attendant
rights to permanent cultivation and control of the shares, and they ultimately realized the
security of tenure promised by the legislation.21
Operation Barga registered a million bargadars by 1984; by 1997, another 400,000 had
been recorded, bringing the total to 74 percent of the estimated two million bargadars in
West Bengal.22 As of December 2003, 1.5 million bargadars have been recorded, and they
cultivate over 1.1 million acres of West Bengal’s agricultural land.23 An overview of the
achievements of land reform in West Bengal is provided in Table 1.
20 Jiban Kr. Ghosh, The Changing Agrarian Scene Under the Impact of Land Reforms Programme: A Case Study of Operation
Barga Programme in West Bengal, in ECONOMY OF WEST BENGAL: PROBLEMS AND PROSPECTS 43-45 (A. Raychaudhuri &
D. Sarkar eds. 1996).
21 Lieten, supra note 12, at 154-57; A. Banerjee et al., Empowerment and Efficiency: Tenancy Reform in West Bengal, 110
JOURNAL OF POLITICAL ECONOMY 239, 242 (2002); Chakraborti, supra note 5, at 28-29.
22
Saha & Saha, supra note 5, at 232.
23 West
Bengal Land Reform Report up to December 2003 (2004) (on file with the Rural Development Institute).
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III.
TRANSACTIONS IN BARGA LAND
A deluge of studies tracked the achievements of Operation Barga. The studies collected
and evaluated data on registration numbers, land productivity, and improvement in
living conditions and status.24 The research revealed that, as a general matter, the
combination of effective legislation, political will, and a well-conceived implementation
program released the bargadars from dependence on landowners and moneylenders. In
the wake of Operation Barga, the social and economic status of West Bengal’s bargadars
grew, and their bargaining power in relation to landowners increased.25
24
A sample list of studies undertaken and summary of their findings is found in Chakraborti, supra note 5, at 3-7.
25
Saha & Saha, supra note 5, at 234-36; Lieten, supra note 12, at 162, 175-76.
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Table 1: West Bengal Land Reform Statistics26
People
Population
Rural population
Agricultural population
Average rural household size
Agricultural households
80.2 million
57.7 million
41.2 million
5.6 persons per household
7.36
Land
Net arable land
13.34 million acres
Ceiling Surplus Reform
Declared surplus land
Vested surplus land
Redistributed ceiling surplus land
Beneficiaries who received
ceiling surplus land
1.37 million acres
1.28 million acres
1.04 million acres
2.54 million
Operation Barga
Land covered by tenancy reform
(Operation Barga)
Tenancy (bargadar) beneficiaries
1.1 million acres
1.5 million
Homestead Plots
Households receiving homestead plots
311,243
Total beneficiaries under all reforms
(including ceiling surplus, bargadars,
homestead plots)
Up to 4.3 million27
The data contained in this table is based on the 2001 Census of India (<www.censusindia.net>) MINISTRY OF
RURAL DEVELOPMENT, GOVERNMENT OF INDIA, ANNUAL REPORT 2000-2001, at 177 (2001), and WEST BENGAL LAND
REFORM REPORT UP TO DECEMBER 2003 (2004) (on file with the Rural Development Institute).
26
27
Some people have received benefits under more than one program.
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As a result of Operation Barga, bargadars were finally in a position to assert their
cultivation rights on barga land, and the landowner’s ability to sell the land to anyone but
the bargadar was severely restricted. However, most bargadars have been financially
unable to purchase barga land outright, and transactions in barga land have accordingly
most often been based on the bargadar’s transfer of the right to continued cultivation on a
portion of the barga land in exchange for receiving ownership of the remaining portion.
Despite the volume of research conducted, few studies focused on the effect of Operation
Barga and land reform on land markets and, more specifically, bargadar transactions
relating to barga land.28
Specific attention to the nature of the transactions in barga land that have transpired and
are currently occurring is important for at least two reasons. First, the extent to which
and the manner in which bargadars are negotiating with landowners for ownership of
barga land are expressions of enhanced bargaining power that results from increased
tenure security. These negotiations -- often initiated by bargadars in an attempt to
solidify their rights even further -- are an indication of the success of land reform efforts
and Operation Barga. The success is important to document both as an achievement of
the West Bengal government and those who partnered with the government in Operation
Barga, and also as a model for other programs designed to implement legislative reform.
Second, in the 25 years since the advent of Operation Barga, West Bengal’s labor market
has been shifting from rural to urban areas as non-agricultural employment opportunities
expand.29 As occupational mobility increases, the value of perpetual landowner-bargadar
relationships decreases. Landowners wishing to pursue non-agricultural opportunities
and looking for ways to facilitate the shift to more diverse livelihood strategies are
hampered by the restrictions on their ability to sell barga land. At the same time,
bargadars wishing to continue agriculturally based livelihoods have little incentive to
increase their investment in land owned by others. The current legislation supports the
status quo and offers little encouragement or support for those wishing to enhance and
diversify their livelihood opportunities.
As non-agricultural opportunities increase in West Bengal, landowners and bargadars
will increasingly seek ways in which they can extricate themselves from their restrictive
relationships. Information regarding the transactions that have occurred and are
occurring can assist in identifying problems experienced by the bargadars and
landowners as they negotiate, process, and conclude transactions, suggest ways in which
Vikas Rawal, Agrarian Reform and Land Markets: A Study of Land Transactions in Two Villages of West Bengal, 19771995, 49 ECONOMIC DEVELOPMENT AND CULTURAL CHANGE 611, 612 (2001). In the course of collecting data on
Operation Barga, some studies note the change in ownership of barga land. See e.g., Rawal, at 623; Saha & Saha,
supra note 5, at 234; Tim Hanstad & Jennifer Brown, LAND REFORM LAW AND IMPLEMENTATION IN WEST BENGAL:
LESSONS AND RECOMMENDATIONS 44-46 (Rural Development Institute Report No. 112, December 2001).
28
29 Jha, supra note 7, at 41, Table 10 (showing growth of urban employment at three times the rate of rural
employment); Lieten, supra note 12, at 199-200. Information obtained through fieldwork relating to the changing
character of some agricultural land in the districts surrounding Calcutta is noted in section III(C).
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the problems can be addressed, flush out the need for protections, and provide a basis for
considering legislation that will facilitate the transactions in the future.
As discussed in detail below, between 2000 and 2003, RDI conducted three separate
rounds of field research related to the issue of bargadar transactions in West Bengal. In
2000, application of the rapid rural appraisal method in three districts of West Bengal
exposed the extent to which bargadars were voluntarily entering into transactions with
their landowners for ownership of barga land. A team followed up these findings with a
500-household survey in five districts in late 2000-early 2001. The survey results provided
information regarding the nature and extent of the transactions in barga land. Most
recently, during interviews with research team members in November 2003, bargadars
and landowners in five districts confirmed the occurrence of barga land transactions.
During this fieldwork, bargadars, former bargadars, and landowners reported new
methods by which the parties designed transactions to suit their needs. The interviews
revealed the extent to which the current legislation creates unnecessary costs and
inefficiencies for the parties and the increasing pressures on parties negotiating for
roadside (i.e., non-agricultural) barga land. The specifics of these rounds of fieldwork are
outlined in Sections A - C below.
A.
RDI Rapid Rural Appraisal Fieldwork: April and October 2000
In April and October 2000, an RDI team30 conducted field research in the Midnapur,
Maldah, and Birbhum districts of West Bengal. The primary purposes of the field
research were (1) to observe and better understand the nature, extent, and impacts of the
land reform legislation’s implementation; (2) to identify ways in which West Bengal’s
land reform policy, law, and implementation might be further improved; and (3) to
design and field-test a questionnaire for a more extensive, 500-household survey on a
broad range of rural land issues.31 It was not until the fieldwork was underway that RDI
became aware of the extent to which transactions were occurring in barga land.
In each district, the teams spent the majority of their time talking directly with farmers in
individual or group settings, using rapid rural appraisal methods. The RDI teams
interviewed a total of 72 farmers in 32 villages during the two rounds of fieldwork in
West Bengal: 27 farmers in Midnapur, 32 in Maldah, and 13 in Birbhum. Of these farmers,
54 owned all of the land they cultivated and had acquired this land through purchase,
inheritance or land reform. Ten farmers owned a portion of the land they farmed and
were bargadars, tenants, or contractors on another portion of their holding. Four farmers
were bargadars on all of the land they cultivated, although not all were recorded
bargadars. Finally, four interviewees neither owned nor sharecropped land, but worked
as agricultural laborers. The largest landowning farmer cultivated 18 acres, and the
30 The team included Ramesh Deshpande from the World Bank, who was instrumental in initiating and contributing
to RDI’s early work in India.
31
Hanstad & Brown, supra note 28, at 39.
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average holding size (including owned and bargadar land) among all interviewees was
3.4 acres.
Map of West Bengal
Rural Development Institute
From Sharecropper to Landowner: Paving the Way
For West Bengal’s Bargadars
Page 13
Map of West Bengal Districts
Rural Development Institute
From Sharecropper to Landowner: Paving the Way
For West Bengal’s Bargadars
Page 14
In addition to collecting specific information about bargadar experience directly from
bargadar respondents, researchers collected general information concerning the effect of
Operation Barga and the nature of bargadar-landowner relationships from all
respondents.
1.
Effect of Operation Barga on Tenure Security.
The interviews revealed that Operation Barga has been widely, although not universally,
implemented in the districts surveyed. Recorded bargadars (and at least some
unrecorded bargadars32) have received significant benefits from the anti-eviction and rent
control provisions in the law and, as a result, have been empowered in their relationships
with landlords.
Significantly, in the course of its fieldwork, RDI received no reports of bargadar evictions
in the past ten years. This finding is consistent with data from several other studies.33
Operation Barga appears to have provided long-term, secure, inheritable rights to those
who recorded, and likely gave many unrecorded bargadars more security.34 In fact, from
the perspective of the land sales market, Operation Barga was almost too successful: the
legislative protections for bargadars limit the landowners’ ability to sell their land to
anyone except the bargadar, and bargadars can rarely afford to purchase the land.
Consistent with numerous village-level studies, it also appeared that a minority of bargadars have chosen not to
record their rights, usually because they wanted to maintain (or feared not maintaining) a good relationship with the
landowner.
32
33
For example, Banerjee, Gertler, and Ghatak note that eviction threats almost disappeared after Operation Barga.
Banerjee et al., supra note 21, at 14. See also S.S. Pal, IMPACT OF TENANCY REFORMS ON PRODUCTION AND INCOME
DISTRIBUTION: A CASE STUDY OF OPERATION BARGA IN WEST BENGAL (Policy Paper No.1, National Center for
Agricultural Economics and Policy Research, 1995); Ghosh, supra note 20; and Uday Shankar Saha, Operation Barga
for Sharecropping System Reform – Impact of Two Decades Experience in West Bengal, India 8 (1988) (unpublished
paper on file with Rural Development Institute).
34
A study conducted by the State Institute of Panchayats & Rural Development (the “Institute”) in 2002 suggests a
different conclusion. The study reported that 14.37 percent of bargadars had been “dispossessed” of barga land
following Operation Barga. Of those bargadars who had been dispossessed, 24.14 percent cited “eviction” as the
cause of their dispossession, 9.82 percent cited “inability to invest” as the cause, and 66.04 percent classified their
reason for dispossession as “other.” Chakraborti, supra note 5, at 59. At first glance, this data appears to support a
concern about the tenure security of bargadars following implementation of Operation Barga. However, the design
of the questionnaire appears to assume the continuation of the historically unequal relationship between bargadars
and landowners and did not contemplate the complexity of those relationships in more recent times. As a result, the
data includes a sufficient amount of ambiguity to render the results difficult to evaluate. As an initial matter, the
questionnaire did not ask for the dates of any reported evictions, and may have inadvertently captured data about
evictions prior to or at the time of Operation Barga. Second, the Institute study appears to limit its analysis of
changes in barga land ownership to those resulting from actions presumed to be hostile to the rights of bargadars.
The use of terms such as “dispossession” and “eviction” -- both of which presume an involuntary act against the
bargadars -- may have, in fact, included changes in possession of barga land that were the result of voluntary
transactions. The findings of the Institute, which include changes in rights to barga land cultivation as a type of
“dispossession” (and note that 66 percent of “dispossessed” respondents potentially fall into this category), are not
inconsistent with that conclusion. No other researchers have found similar high rates of evictions, and most report
no increase in evictions subsequent to Operation Barga. See e.g., Banerjee et al., supra note 21, at 14; Saha & Saha,
supra note 5, at 234 (citing multiple studies). It seems far more likely that a large percentage of the changes in
bargadar cultivation of barga land captured by the Institute study are the result of voluntary transactions in barga
land.
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2.
Transactions in Barga Land.
In the course of its 2000 fieldwork, RDI discovered that numerous bargadars and
landowners had entered into transactions that resulted in the bargadar receiving either
ownership of a portion of the barga land (ranging from 25 percent to 60 percent of the
land) or a cash equivalent, in return for giving up protected bargadar rights on the
remaining land. Such transactions had occurred in at least half of the villages in which
researchers inquired, and in most of these villages, the deals were described as
“common.” Researchers received no reports that such transactions were coercive. On the
contrary, all those describing the transactions emphasized that they were voluntary.
Researchers found two basic types of transactions occurring. In the first type, which
appeared to be more common, the bargadar receives ownership rights on a portion of the
erstwhile barga land and the landowner (or a third party) receives unencumbered
ownership rights on the remaining land. In the second type, the bargadar releases
bargadar rights to all the barga land and receives a cash payment, which is usually
calculated based on a percentage of the market value of the unencumbered barga land.
In both cases, because of legislative provisions protecting the bargadar, the deals are
typically two-step transactions. In the first step, the landowner gives the bargadar full
ownership rights to all the barga land. This transaction is, however, registered as a sale.
Although the deed includes a sale price, typically no cash is delivered. The bargadar’s
name is removed from the State’s official record of bargadars because the bargadar has
become an owner of the entire parcel. In the second step, the bargadar either gives or sells
a pre-determined portion of the land back to the landlord, or to a third party, in exchange
for retaining full ownership rights of the remainder. This second step is also registered as
a sale.35
These transactions appeared to be more common in Maldah District than in Midnapur or
Birbhum. In one village visited in Maldah, there had been 50 recorded bargadars in the
village, and all were reported to have concluded such voluntary deals with their
landlords. In other villages in Maldah, farmer interviewees told researchers that such
deals were “very common” or “fairly regular.” In Midnapur and Birbhum, farmer
interviewees were more likely to describe the frequency of such deals as “occasional,”
although researchers were told in one Midnapur village that such deals had occurred on
40 percent of the village’s barga land.
Bargadars involved in transactions in barga land also appeared to be acquiring a larger
share of the land in ownership in Maldah than in the other two districts. In Maldah, the
bargadar’s share of the barga land received in ownership ranged from 25 percent to 60
percent; the most common share was 50 percent. In the villages visited in Midnapur and
This type of two-step transaction was confirmed in interviews conducted by other researchers. See e.g., Banerjee et
al., supra note 21, at 15.
35
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Birbhum, bargadars more commonly received only 25 percent of the barga land in
ownership.
Several respondents reported that the transactions were initiated because of the
landowner’s need for money, usually the result of a forthcoming marriage of a daughter.
The interviews revealed two consequences of the two-step process. First, such
transactions only occur where a substantial element of trust exists between the landowner
and bargadar. Landowners who have strained relationships or who otherwise do not
trust their bargadars are not likely to take the first step of giving the bargadar full
ownership of all barga land. Farmer interviewees acknowledged that a trusting
relationship is a prerequisite for such deals. Second, because the transactions involved
two steps registered as sales, the deals incur twice the transaction costs of normal land
sales.
B.
RDI Rural Household Land Questionnaire: December 2000January 2001
In the December 2000 through January 2001 period, RDI and local partners from Visua
Bharati surveyed 500 households in five districts: Birbhum, Burdwan, South Dinajpur,
Midnapur, and Purulia.36 The questionnaire responses were consistent with the findings
of the earlier fieldwork:
•
46 percent of bargadars and 38 percent of all respondents37 were aware of at least
one transaction between a bargadar and landowner in their village.
•
Of those (bargadars and all other respondents) reporting that they knew of
bargadar transactions:
98 percent of bargadars and 95 percent of all respondents reported that the
transaction(s) between bargadar and landowner were “always mutual and
voluntary” or “mostly mutual and voluntary.”
80 percent of bargadars and 80 percent of all respondents believed that
bargadars engaging in transactions received ownership of a percentage of
barga land in exchange for relinquishing barga rights to the remaining
land.
36
Professor S. Pal and Dr. Kazi M.B. Rahim from Visua Bharti were the Survey Field Coordinators.
The questionnaire was answered by bargadars, those who lost land rights as a result of land reform, those who
received agricultural land, those who received homestead land, and landless respondents.
37
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46 percent of bargadars reported that the owner received ownership of the
remaining land, while 46 percent of all respondents reported that a third
party received ownership of the remaining land.
33 percent of bargadars and 32 percent of all respondents stated that they
were aware of bargadars who had received ownership rights to all barga
land in exchange for a sum of money.
92 percent of bargadars and 84 percent of all respondents reported that
bargadars might relinquish their barga rights on the land without receiving
ownership to any of the land. 81 percent of the latter stated the bargadar
receives a sum of money in exchange for their barga rights.
C.
RDI Fieldwork: November 2003
In November 2003, an RDI team conducted interviews in five districts in West Bengal:
Birbhum, Midnapur, Howrah, North 24 Parganas, and South 24 Parganas using the rapid
rural appraisal method. The purpose of the fieldwork was to obtain further information
about the nature and frequency of transactions in barga land.
1.
Agricultural Land: Birbhum District
Researchers interviewed bargadars and landowners in individual and group settings in
four different villages in Birbhum District. All persons interviewed were aware of
transactions by bargadars and landowners relating to barga land, even if they had not
themselves engaged in transactions. In all cases, the interviewees identified the
transactions as voluntary.
a.
Initiation of negotiations and terms of sale or exchange.
The bargadars and landowners interviewed stated that bargadars were as likely as
landowners to initiate discussions on sale or exchange of barga land. In three reported
cases the landowner was under financial pressure to sell the barga land. The need for
cash was occasioned by a daughter getting married, a son needing a job, and an owner
preparing to leave the area. In another case, a bargadar initiated the discussion of the
exchange because he was unable to cultivate the entire parcel of barga land and sought
ownership of a smaller portion that he could cultivate. In another case, a pair of
bargadars offered the landowner cash for the purchase of the entire parcel of barga land.
Most bargadars interviewed considered receipt of 33 percent of the barga land to be the
minimum percentage of land they would accept in exchange for relinquishment of their
right to cultivate the whole. The highest reported percentage of land taken by a bargadar
in ownership was 60 percent.
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Personal relationships play a role in the negotiations. The majority of bargadars were
comfortable negotiating the terms of transactions with the landowners. Some noted that
small landowners were often in the same economic status as bargadars and subjected to
the same economic pressures. One bargadar agreed to take ownership of a portion of
barga land because the landowner was in dire need of cash. Another bargadar stated that
while he believed he should receive at least 40 percent of the barga land in ownership, he
admitted that, if the landowner asked, he would reluctantly accept an agreement whereby
he received only 25 percent. The landowner was in financial distress, and the bargadar
believed that he would be under social pressure from others in the village to respond
affirmatively to the landowner’s proposed terms. Unwilling to be placed in that position,
the bargadar avoided all discussions of a possible transaction with the landowner.
b.
Types of transactions.
The November 2003 interviews with bargadars and owners in Birbhum District confirmed
that two-step transactions in barga land are still common. However, interviewees also
revealed that some transactions had been done in a single step. In single-step
transactions, the landowner prepares a sale deed for the portion of land that the bargadar
will take in ownership. In exchange, the bargadar declares by affidavit or other document
that he will forego his right to cultivate the remainder of the owner’s land. The affidavit
is an informal document that is recognized by the local community. Importantly, the
affidavit is not registered with the authorities and the bargadar remains officially
recorded on the remaining land.38
The single-step transaction in which the bargadar remains recorded on the land retained
by the owner creates a cloud on the title. However, the continuation of the bargadar
recording serves the landowner’s purposes because, if the bargadar’s name is removed
from the official records, another bargadar will be settled on the land. Under the LRA,
bargadars may surrender their cultivation rights, but even if the state-appointed official
approves the surrender, the landowner cannot resume personal cultivation. The
landowner must turn the land over to another bargadar for cultivation.39 Thus, retention
of the bargadar’s name on the record protects the landowner from accepting a new
bargadar on the land. At the same time, however, the retention of bargadar’s name on the
record creates a cloud on the title and, at least on an official level, substantially limits the
owner’s ability to sell the land.
Those interviewed stated they were not concerned about the cloud on the title created by
the bargadar recording because the land transactions in the area were entered into
between local people who knew of the bargadar’s relinquishment of rights. Furthermore,
those interviewed reasoned that in the event that an outsider became interested in
purchasing the land, at that point the parties could go to court and initiate a case to clear
38 In a variation on this type of transaction, a bargadar declares in court that there has been a mistake regarding his
status and he officially gives up his rights to cultivate the land. In exchange for this relinquishment of all rights, the
owner registers part of the land in ownership in the name of the bargadar.
39
LRA § 20B.
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the title. Thus, while the cloud on the title and discrepancy between legally and socially
recognized rights to the land create the prospect of land disputes in the future,
landowners do not consider the prospects to be significant enough to prevent them from
engaging in one-step transactions.
2.
Roadside Barga Land
The four districts surrounding Calcutta are a different environment than the much more
rural Birbhum district and present some unique concerns relating to transactions in barga
land. In all villages visited in Midnapur, Howrah, North 24 Parganas, and South 24
Parganas, bargadars and landowners identify a high percentage of barga land (or land
that had been barga land) as “roadside barga land.” Roadside barga land is land that
abuts a main road (and sometimes a secondary road) through a village in an area next to a
city and with a certain level of traffic. Roadside barga land is valued less for its
agricultural potential than for its location and its potential use for some form of
residential, commercial, or otherwise non-agricultural venture or development.
a.
Voluntary transactions.
The land market is active in these districts. Land agents and developers eagerly search for
bargadars cultivating roadside barga land who wish to sell their rights. Despite this
potential pressure, bargadars who sold roadside barga land reported that they had been
willing sellers: in one case the busy roadside location interfered with a bargadar’s
irrigation and cultivation and he preferred a quieter location for farming. In another case,
the bargadar wanted to cease cultivating any land. In a third case, the bargadar on two
parcels offered to relinquish his rights to the smaller piece of more valuable roadside
barga land in exchange for ownership of a larger piece of less valuable land that could still
be cultivated.
b.
Types of transactions.
The majority of the transactions for roadside barga land referenced in the course of
interviews employed a single type of agreement: the owner (or the owner’s agent) pays
the bargadar a cash amount equal to a percentage of the market value of the entire parcel
in exchange for the bargadar’s release of his right to cultivate the whole. However, the
bargadars and former bargadars also reported that they had engaged in (or were aware of
others engaging in) two-step transactions in which barga rights to a percentage of land are
exchanged for ownership of another percentage of land.
Interviews also revealed a handful of land purchases by bargadars. In these cases, the
bargadars had access to income from a non-agricultural source. For example, in East
Midnapur, a bargadar who earned income as a carpenter was slowly purchasing, bit by
bit, the land he cultivated as a bargadar.
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c.
Involvement of the panchayat.
The panchayat (local governance body) was involved at some stage in the majority of
transactions in the districts surrounding Calcutta. In some cases, the panchayat organized
meetings of the parties and advised bargadars about the value of land and the process of
sale. For example, in one village, the panchayat had assisted a land developer in
identifying the bargadars on a stretch of roadside land that was marked for a large
development. In other cases, the panchayat played a more limited role. Some bargadars
reported that they reached their agreements with the landowners privately, then signed
the final documents in front of the panchayat.
Bargadars interviewed generally trusted the panchayat’s involvement in the transactions
for barga land. However, they did not follow the panchayat’s recommendations blindly.
For example, a bargadar in North 24 Parganas District refused the panchayat’s
recommendation to accept the owner’s offered price for roadside barga land. The
bargadar believed the land was more valuable than the price offered by the owner and
supported by the panchayat, and despite the panchayat’s effort to close the deal, the
bargadar held out for a higher price.
d.
Transaction terms.
In ten villages in four districts, bargadars and owners uniformly reported that in all cases
where owners wanted to buy out the interest of bargadars, bargadars received 25 percent
of the market value of roadside barga land. One owner noted that this percentage was
“understood and accepted” by everyone. One bargadar stated that the 25 percent share
was “a matter of the village custom.” Disturbingly, three bargadars in two different
villages reported that agents and land developers informed them that 25 percent was the
“government percentage” or the “legal percentage,” and that bargadars were not
permitted to negotiate a different percentage.
In addition to being subject to inaccurate information about the alleged mandatory nature
of the 25 percent formula, bargadars on non-roadside barga land in the districts
surrounding Calcutta are pressured by the formula for roadside barga land. In the
districts where roadside land is at a premium, the 25 percent formula influenced
transactions in non-roadside, pure agricultural land. In Howrah District, transactions in
which bargadars took a percentage of non-roadside barga land in ownership in exchange
for relinquishment of the remainder were uniformly set at 25 percent.
However, not all bargadars accept the pressure exerted by the roadside barga land
formula. Several bargadars stated that they felt comfortable bargaining with their
landowners; they recognized that the landowners were limited in their ability to sell the
barga land absent some agreement with the bargadars. Thus, a bargadar in East
Midnapur who developed two bighas of land and made it cultivable refused the owner’s
efforts to purchase the land for 25 percent of the market price. The land was valuable
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because of the bargadar’s improvements, and he wanted at least one bigha in ownership
in exchange for giving up his right to cultivate the remaining one bigha.
In another case, a bargadar whose family cultivated a roadside barga plot in South 24
Paganas for three generations refused all efforts by the owner to purchase his barga rights
at 25 percent of the market value of the land. In the bargadar’s opinion, such an
agreement would be unfair: the bargadar had improved and invested in the land over the
years and the landowner did not live in the village. The bargadar is satisfied continuing
as a bargadar on the land if the owner does not increase his offer.
In a third case the panchayat recommended that the bargadar accept a buy-out price
offered by the landowner; the bargadar refused, content to wait for a higher offer from the
owner. The bargadar noted that he was a recorded bargadar, which gave him some
additional leverage against the owner. As in the other two cases, the bargadar was well
informed about land values and felt comfortable taking and holding a position in his
negotiations with the landowner.
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VII.
CONCLUSIONS FROM STUDIES AND FIELDWORK
The fieldwork undertaken and studies conducted present a remarkably consistent picture
of the characteristics of transactions in West Bengal’s barga land, which are set forth
below.
A.
Types of Transactions
Bargadars and landowners are using a number of different (and imperfect) methods to
transfer ownership of barga land. The following is a list, in order of frequency of
occurrence of method, that bargadars and landowners report using to transfer barga land:
•
Exchange for Percentage Ownership (Two-Step Transaction). In this most
common method of transaction, the owner first grants all barga land to the
bargadar. The transaction is recorded as a sale and subject to transaction costs.
Following receipt of the land, the bargadar gives a portion back to the owner or a
third party, free of his rights of cultivation. The bargadar retains ownership of the
remainder. This second step is also recorded as a sale and subject to transaction
costs.
•
Buy-Out of Bargadar. This transaction method is most common in the districts
surrounding Calcutta. In those areas, an owner seeking ownership of the entire
parcel (for himself or for subsequent sale) most frequently buys out the bargadar’s
interest. The price for most reported cases, including those for roadside barga
land, is set at 25 percent of the market value of the land.
•
One-Step Transaction: Relinquishment of Barga Rights by Affidavit. In this type
of transaction, the owner prepares a sale deed for the portion of land that the
bargadar will take in ownership. In exchange, the bargadar declares by affidavit
or other document that he will forego his right to cultivate the remainder of the
owner’s land. The document is not officially registered with the State authorities,
and the bargadar remains recorded on the remaining land.
•
Two-Step Transaction: Relinquishment of Barga Rights in Court. In this type of
transaction, the bargadar declares in court that there has been a mistake regarding
his status as a bargadar, and by official act, the bargadar gives up his rights to
cultivate the land. In exchange for the bargadar’s relinquishment of all bargadar
rights to the land, in a second step the owner registers part of the land in
ownership in the name of the former bargadar.
•
Buy-Out of Owner. There were very few examples of this type of transaction.
However, in cases where a bargadar sought ownership of the entire parcel of
barga land, he generally received 25-33 percent of the parcel at no cost and paid
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the owner the market price, or a discounted market price, for the remainder. In
some cases, the bargadar paid for the entire parcel at a discounted rate.
B.
Transaction Characteristics
Regardless of the form of the transactions, the majority of the reported transactions shared
the following characteristics:
•
Transactions are almost always voluntary. Transactions may be initiated by either
side, and either side may refuse to continue negotiations.
•
Bargadars believe they have the most power to negotiate a good deal for
themselves where (1) they are recorded bargadars; (2) they have paid the shares
due the owner; and (3) they have paid for improvements to the land.
•
Personal relationships count. Some bargadars express empathy for small
landowners and a desire not to take advantage of the owners in any transaction,
particularly where the landowner lives in or near the same village. Conversely, if
the owner is absentee, some bargadars believe the owner is entitled to less
consideration.
•
The terms of transactions for the exchange of barga rights in a portion of barga
land for ownership of the remainder range from 25 to 60 percent of the parcel in
ownership to the bargadar.
•
The transaction processes used by bargadars and landowners all have unnecessary
costs, either monetary or otherwise (e.g., a cloud on the title).
•
Parties with difficult or strained relationships are less likely to discuss a
transaction in barga land. Bargadars and landowners alike may fear that they will
be taken advantage of by the other party in the course of the negotiations.
For roadside barga land:
•
Transactions for roadside barga land are almost always buy-outs of a bargadar’s
interest in the entire parcel.
•
In a buy-out of the bargadar’s interest in roadside barga land, the bargadar almost
always receives a cash payment in the amount of 25 percent of the market value of
the whole.
•
In villages where there is a market for roadside barga land, the 25 percent formula
is often extended to transactions in non-roadside barga land, to the disadvantage
of the bargadars.
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VIII. OPPORTUNITIES FOR FACILITATING TRANSACTIONS IN
BARGA LAND
With recognition of these characteristics that have emerged from the ongoing transactions
in barga land, RDI developed a set of proposed options for encouraging and facilitating
transactions in barga land. Some options require minor alterations in existing legislation,
rules, and regulations while others are limited to implementation of existing legislation
and rules. The options range from very simple to more complex. The options are not
mutually dependent and thus may be considered singly or in combination.
•
Implement and fund the existing legislative provisions authorizing a public
financing mechanism to help bargadars purchase barga land.
By 1981 amendment to the LRA, the State Government received the power to establish a
State Land Corporation or one or more Regional Land Corporations to finance
transactions in barga land. The corporations were conceived as entities to advance funds
to recorded bargadars to enable them to purchase up to one hectare of the land that they
cultivate.40 Bargadars who use the funds for the land purchase must mortgage the
purchased land to the Corporation as security for the advanced funds.41
This section, which has yet to be implemented, would provide those bargadars who
cannot afford to purchase their barga land with the funds to do so. This provision would
likely provide the greatest assistance to the poorest of the bargadars – those who do not
have resources with which to purchase land and whose barga land is so small it is not
worth dividing between owner and bargadar.
•
Design a single-step transaction for the sale or exchange of barga land to
bargadars that includes safeguards to certify the non-coercive nature of the
transaction.
Designing and implementing a one-step transaction process that permits bargadars to
assume ownership of all or a portion of their barga land in exchange for cash or
relinquishment of cultivation rights to the remainder would greatly facilitate bargadar
transactions. A standard procedure that can be followed by parties, regardless of the
terms of their particular agreement, would bring certainty and predictability to the
transaction process. In addition, a single-step process would avoid the double transaction
costs imposed in two-step procedures.
In order to protect against the possibility of involuntary transactions, the process should
require all parties to meet in the presence of a neutral third party, such as a panchayat
member, and execute a statement of voluntariness in conjunction with the transaction
document. The statement should require the parties to assert their willingness to enter
40
LRA § 21C.
41
LRA §21C(7).
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the transaction and their agreement to the terms of the transaction. The neutral party
should enter his or her own attestation to the evidence observed indicating the
voluntariness of the transaction.
•
Exempt bargadar transactions in barga land from stamp duty and registration
fees, or otherwise reduce the costs.
The stamp duty and registration fees for transactions are generally paid by the parties
making the purchase and thus impact owners and bargadars alike. Exempting the
transactions in barga land from stamp duty and registration fees would put money in the
hands of the parties to barga land transactions.
The government would lose the fees that would have been paid by the parties had the
transactions not been exempted. In addition, exempting the transactions from the official
fees would not avoid the possibility that unscrupulous officials will seek their own
private, unofficial fees. Nonetheless, despite these potential problems, the merits favor
providing an exemption. First, benefiting the rural poor by allowing them to forego
paying transaction costs is consistent with the State’s general interest in enhancing the
livelihoods and opportunities for the rural poor and its specific interest in supporting the
bargadars’ transactions in barga land and its treatment of other beneficiaries of land
reforms.42 Second, it is far easier on the State to forego receipt of unrealized funds than to
make payments from realized funds; the State will make no cash outlay yet the bargadars
and landowners will receive full financial benefit. Third, exempting the transactions from
stamp duty and registration fees will not increase the potential for corruption. In any
event, the government should not deny bargadars and landowners a benefit under the
guise of curbing corruption.
An exemption for transactions in barga land would provide a tangible, monetary benefit
to bargadars and owners without requiring a cash outlay by the government. In addition,
bargadars and owners would have the certainty of knowing that the exact cost of the
transaction they contemplate will be the price they negotiate.
•
Set a floor for the percentage of barga land received by the bargadar in
ownership in exchange for the bargadar relinquishing cultivation rights to the
remainder of the land.
We recommend that a minimum of a 50 percent of the barga land should be received by
the bargadar in ownership in any exchange with the landowner. This minimum is higher
than some agreements reached by bargadars and landowners but not as high as the most
favorable deals struck by bargadars. It is important to set the floor above the minimum
because a floor often also defines a ceiling and has the effect of standardizing a percentage
for all transactions.
See e.g., West Bengal Land and Land Reforms Manual, Chapter XIII, § 191 (beneficiaries of governmentdistributed land are exempted from premium and revenue payments for the land received).
42
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If the 50 percent floor does set a standard for a majority of transactions, the percentage is
an appropriate compromise between extremes. A formula in which both sides receive 50
percent of the land has an inherent equity and is fitting for circumstances where the
fortunes of bargadars and local landowners are more similar than different.
•
Where a bargadar wishes to purchase barga land, require the landowner to sell
the land to the bargadar at a fixed discounted price, and permit the parties to
negotiate for a higher discount.
Barga land has a lower value then unencumbered land, and bargadars should receive a
minimum discount off the market price and be able to bargain for a higher discount, as
appropriate to the circumstances. This provision could be coupled with a restriction on
the resale of the former barga land for a five-year period in order to prevent third parties
from benefiting from the discount sale price.
•
In the event a bargadar wishes to be bought out of his cultivation rights, require
the price paid to the bargadar to be set at not less than 50 percent of the market
value of the entire parcel of barga land.
This provision would give bargadars the cash equivalent of an exchange transaction in
which the bargadar receives not less than 50 percent of the barga land. As discussed
below, a separate formula can be adopted for true roadside barga land.
•
In combination with protections for small landowners, permit bargadars to
require landowners to sell or exchange barga land in order to allow bargadars to
obtain ownership of some percentage of the parcel, or the cash equivalent.
This provision would give bargadars a legal right to force a sale of a portion of barga land,
or an exchange of cultivation rights to 50 percent in exchange for ownership of the
remaining 50 percent, as elected by the parties. This provision is the next appropriate step
to supporting bargadars who wish to become landowners. Absent the ability to force
their landowners to enter into a transaction, regardless of the other recommendations
adopted, a percentage of bargadars will never be able to extricate themselves from
sharecropper status. Significantly, that percentage will potentially be the poorest of the
bargadars and also those who cultivate land owned by the wealthiest of landowners
because they will be the least likely to enter into voluntary transactions. This provision
will provide those with no other avenue to land ownership the ability to attain that status
and require those landowners with no incentive to seek to transfer a percentage of their
barga land to do so.
The interests of small landowners could be protected by the requirement that the parties
must agree on either the sale or exchange, thereby assuring the landowner of at least 50
percent of the barga land in full and clear ownership if he wishes. In addition, small
landowners could be protected by a provision that prohibits a bargadar from forcing a
transaction where the landowner owns less than a certain amount of land, or the bargadar
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owns more than a certain amount of land. New small landowners (whether former
bargadars or others) could be further protected with a requirement that a bargadar must
have cultivated the barga land for a certain number of years before he can force a sale or
have been a recorded bargadar on a date certain.
•
Establish a separate formula for transactions in true roadside barga land, i.e.,
land that abuts a main road in certain designated blocks or districts. A bargadar
who wishes to sell his interest in roadside barga land would receive not less
than 25 percent of the market value of the roadside barga land or an amount that
will allow him to purchase a similar amount of identifiable non-roadside land,
whichever amount is greater. The 25 percent formula is a floor; the bargadar can
insist on a higher price.
The recommended 25 percent formula reflects the current practice in the districts
surrounding Calcutta.
The reduced percentage (from the 50 percent formula
recommended for agricultural land) recognizes the changing nature of some roadside
land from agricultural land to non-agricultural land and the attendant higher value of
some roadside land -- an increase that is unrelated to its agricultural use or potential. The
25 percent recommendation is a floor, and bargadars like the one in South 24 Parganas
who rejected 25 percent as insufficient because the landowner is absentee and the
bargadar had improved the land will continue to be free to negotiate more favorable
terms.
The recommendation differs from the actual practice in the districts to the extent that it
restricts the roadside barga formula to land that actually abuts a main road in certain
identified blocks or districts. Land that is removed from the roads should be governed by
the 50 percent formula. Barga land that is not adjacent to a road generally will have more
value as agricultural land than as commercial land and thus is properly subject to the 50
percent formula.
The distinctions made on the basis of the relation of the land to a road and location within
a particular village or block may appear arbitrary and in some cases may not reflect the
actual nature and value of certain plots of land. Because the location of the land (in
relation to a block or district, and in relation to a road) will determine which formula
applies, there will necessarily be areas where different formulas apply to adjacent parcels.
For example, two adjoining plots on a road may be subject to different formulas if they are
on the boundaries of blocks or districts that adopt different formulas. Or a plot adjacent
to a roadside plot may have just as much commercial value to a developer as a roadside
plot because a developer is siting a large project, but the non-roadside plot will still be
subject to the 50 percent formula while the roadside plot will be governed by the 25
percent formula.
Despite this type of potential randomness, the dual formulas and restriction of the 25
percent formula to actual roadside land in identified districts or blocks are reasonable and
warranted. If West Bengal wishes to encourage and support those bargadars aspiring to
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land ownership and to promote voluntary transactions in barga land at the least cost to
the parties, the legislation should establish clear, readily understandable standards for
those transactions. Uncertainty hinders transactions; parties are most likely to enter into
negotiations when they can identify the parameters of a possible agreement in advance
and plan their negotiations accordingly.
As an initial matter, the recommended provision allows each block or district to
determine whether circumstances in that area justify adopting the separate roadside barga
land formula. This decision is appropriately made at that level: local officials and
residents are best able to judge the land values and market activity in their area, and the
provision allows them to respond to that reality.
In addition, the recommended provision relating to roadside barga land provides the
parties to potential transactions with certain knowledge of what category of land is
involved and what formula applies. The parties will know whether their block or district
has adopted the 25 percent formula for roadside land, and, if so, whether their land abuts
a road and is therefore subject to the 25 percent formula. That certainty will protect
bargadars from pressure exerted by landowners and developers who attempt to
categorize all agricultural land as subject to the 25 percent formula simply because the
land is located in a district where some true roadside barga land has been purchased
under that formula. Further, because the provision provides the percent as a floor, the
bargadars will still be free to negotiate for better terms.
The option for an exchange for agricultural land is intended to support those bargadars
who wish to continue cultivating. In the event that the bargadar elects the option for an
exchange, the parties should be required to identify and secure the purchase of the new
parcel as a condition of the transaction.
In summary, absent this type of provision addressing unique nature of roadside barga
land and defining roadside barga land narrowly and precisely, bargadars on land in the
districts surrounding Calcutta will remain vulnerable to the pressures of the active land
market.
•
Where bargadars have obtained ownership of barga land, grant them the right
to sell the land, either immediately or after the expiration of a five to ten-year
period.
Some of the most significant economic benefits of land ownership are tied to its
transferability. Unencumbered land has the highest value, and freely transferable land
will provide former bargadars with the full value of their new assets. In addition, if the
new landowner knows he can sell his holding, he is more likely to invest in the land,
make improvements, and take care not to degrade the land and resources.
A concern about this recommendation might be raised by those who fear that if former
bargadars have the right to sell their newly acquired land, they will make improvident
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decisions regarding the land or be forced to sell the land to large, exploitative landowners.
There is, however, no apparent empirical support for this concern. The great majority of
West Bengal’s existing landowners are marginal or small farmers who do have the right to
sell land that is not encumbered by bargadar rights. Yet, no significant numbers have
sold their land to large landowners due to distress, coercion, or improvidence. In fact,
empirical studies of rural land sale markets reveal that such markets in West Bengal tend
to equalize rather than polarize landownership structure. The net transfer of land
through the sale market has been from relatively large landowners to relatively small
landowners (most likely because of the land reform’s positive influence). 43
Moreover, even if there was a sound empirical base for concerns about the effect of the
unfettered transfer of barga land, the concerns can be readily addressed with legislation
and available resources. For example, the proposed one-step transaction procedure for
the purchase of (or exchange for) barga land should require appropriate safeguards to
ensure that the parties are entering into the transaction freely and voluntarily. Similarly,
to the extent that the State believes that some bargadars who seek to become owners will
be unable to weather the unpredictability of an agricultural livelihood, the State can
establish better insurance mechanisms or other additional financial and technical support.
The State may also consider placing a temporal moratorium of five to ten years on a
former bargadar’s ability to sell his land. In short, the imagined problems are either
preventable or resolvable, and should not serve as an excuse to restrict bargadars’ ability
to become landowners.
Selection of Options
The list above is, as previously stated, a menu from which one or more of the options can
be selected. In the interest of encouraging and supporting the aspirations of bargadars
and based on our admittedly limited understanding of the related political, economic, and
social realities in West Bengal, we offer the following recommendations:
43
•
Streamline transactions with a single-step process that is exempt from
administrative fees and that establishes an equitable 50 percent floor, with
recognition of a separate formula for a very limited class of roadside barga land;
•
Activate the financing mechanism for bargadar purchases of barga land, as
already contemplated by the Land Reforms Act, and both mobilize existing state
government resources and also seek international donor financing for such
purchases;
•
Empower the poorest of bargadars by permitting them to mandate a sale or
exchange of barga land for ownership, with provisions protecting small
See Rawal, supra note 28; Sankar Kumar Bhaumik, TENANCY RELATIONS AND AGRARIAN DEVELOPMENT: A STUDY
OF WEST BENGAL (1993).
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landowners from forced sales or exchanges in cases where the landowner will be
left with less than a certain amount of land, the bargadar will own more than a
certain amount of land, or the bargadar has not cultivated the land for a sufficient
period of time.
•
Allow the new landowners (former bargadars) to realize the full value of their
land by permitting it to be freely transferable after the expiration of a five-year
period.
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VII.
CONCLUSION
Governments that support land reform must have the foresight, flexibility, and fortitude
to respond to and protect their achievements, or they risk sacrificing the gains made. In
West Bengal, the Land Reforms Act and implementation programs like Operation Barga
increased the economic and social status of bargadars to the point where they are capable
of negotiating with their landowners for ownership of barga land. Because current
legislation did not fully anticipate this evolution in the bargaining power of bargadars,
those bargadars and landowners who have already taken the initiative have paid a price
in cost and efficiency of the transactions. Lack of assets and recalcitrant landowners
prevent other bargadars from becoming owners. Absent further legislative change, only a
limited percentage of bargadars aspiring to land ownership will be successful; the poorest
will again be left behind.
Complacency in land reform has a cost. In Egypt, the country made significant advances
to protect the rights of tenants. But the tenants’ rights were only as secure as the political
will, and when the political winds changed, the protections dissolved and evictions
followed.
The clock can turn back in West Bengal just as it did in Egypt. West Bengal will best serve
its rural population by doing all that it can as soon as it can to assist those bargadars who
aspire to landownership and thereby solidify and enhance the achievements of Operation
Barga. The bargadars and landowners who have been negotiating and reaching
agreements regarding barga land have demonstrated their interest and determination.
Now it is the State’s turn to help pave the way for the remainder.
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