Policy analysis of special provisions of the RFCTLARR Act, 2013
& Khasi Land classification
By Kenneth Nongsiej
Land acquisition has been a highly contentious issue in various parts of India and our State. The National Highways and Infrastructure Development Corporation Limited (NHIDCL) has been facing significant challenges in acquiring land for road infrastructure development especially in the Khasi Hills region. These difficulties arise from both the distinctive nature of land ownership in the Khasi Hills and the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which safeguards the rights of the landowners.
Before understanding the problems related to land acquisition it is important to first understand the land classification followed by the Khasi, a system deeply rooted in our customary law.
Khasi Land Classification
The Khasi land system is unique and different from the land tenure systems followed in most parts of the Country. It is solely based on customary law which has been codified and institutionalised over time immemorial by the Khasi. The two most widely recognised land classification in the Khasi Hills are Raid Land and Ri Kynti. They are known by different names in different Hima but are of the same concept.
Ri Kynti Land refers to privately owned land. It is land that is absolutely owned by an individual or a clan and is inheritable and transferable according to customary law. Ownership of Ri Kynti land gives the holder complete rights over its use, sale, or transfer, subject to customary law.
Raid land refers to community-owned land. These are lands set aside for community utilisation, and no individual or group has exclusive ownership over them. The management and administration of Raid lands are vested in the local village councils, known as Dorbar Shnong or Dorbar Raids. The rights over Raid land are primarily land holder meaning individuals or families may occupy or use the land for specific purposes (such as farming) but do not hold heritable or proprietary rights. However, if individuals or families make permanent improvements on Raid land such as building houses or planting trees, they may acquire limited heritable and transferable rights. These rights are generally forfeited if the land is abandoned for more than three years or if the Dorbar deems the abandonment to have lasted for a sufficient period.
This distinction between private and community land is significant because it influences how land can be acquired, transferred, or sold. In many cases, the community nature of Raid land has made land acquisition for development projects difficult as decisions regarding its use are not in the hands of individuals but rather the community as a whole.
Codification of Khasi Customary Law
Recognising the uniqueness of the Khasi land tenure system, the Khasi Hills Autonomous District Council (KHADC) enacted The Khasi Hills Autonomous District (Regulation and Administration of Land) Act, 2021. This law is aimed at providing a legal framework for the regulation and administration of land within the jurisdiction of the Khasi Hills. And even as this Act attempts to bring clarity and structure to land management, it remains grounded in customary law and upholds the traditional classifications of land including Raid and Ri Kynti lands.
Apart from Ri Kynti and Raid land other types of land classifications are also prevalent in the Khasi Hills especially when it comes to forest land. Forests in Khasi society are classified into different categories based on their ownership and use. Khlaw Kyntang (sacred forests), Khlaw Raid (community forests), Khlaw Adong (prohibited forests), and Khlaw Lyngdoh (forests owned by priests) are all protected by local customs and are often preserved for religious and cultural reasons. Private individuals may also own forests such as Khlaw Ri Kynti (private forests) or Khlaw Ri Kur (clan-owned forests). The management of these forest lands is an integral part of the Khasi land system and reflects the community’s deep connection to nature.
The codification of these customary laws under the Sixth Schedule of the Constitution of India which grants autonomous district councils the power to govern tribal areas has helped preserve the traditional land system of the Khasi. However, with the growing pressures of development and urbanization the future of this system is uncertain as capitalism and the demand for land threaten the integrity of traditional practices.
Special Provisions
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was enacted to provide a fair and transparent mechanism for land acquisition ensuring just compensation to landowners while also addressing the rehabilitation and resettlement needs of displaced individuals and communities. For regions like the Khasi Hills where land ownership is closely tied to cultural identity the Act includes special provisions for Scheduled Areas and tribal communities to safeguard their land rights.
One of the key provisions of the Act is found in Section 41(1) which states, “As far as possible, no acquisition of land shall be made in the Scheduled Areas.” This sub clauses acknowledges the deep connection that tribal communities have with their land and the importance of protecting their rights. However, the clause is not absolute as sub clauses (2) allows for acquisition land in Scheduled Areas which this subsection states, “Where such acquisition does take place it shall be done only as a demonstrable last resort”. Furthermore, this provision makes it mandatory to take the prior permission of the Autonomous District Council. Additionally, the provision ensures that one-third of the compensation for the acquired land is paid to the affected families thereby ensuring that they receive a fair share of the benefits arising from development projects
The Act also mandates that for any land acquisition, a comprehensive Social Impact Assessment (SIA) must be conducted to assess the potential impact on the local community, including the loss of land, livelihoods, and cultural heritage. The SIA must involve consultations with the local Gram Sabhas or equivalent bodies, such as the Dorbar Shnong in the Khasi Hills, to ensure that the voices of the community are heard and their concerns are addressed.
Can Force be Applied in Land Acquisition
While the Resettlement Act (RFCTLARR), 2013 seeks to create a balanced approach to land acquisition there are arguments about whether force should be used to acquire land for important infrastructure projects particularly in regions where land acquisition is met with resistance.
The 44th Amendment Act of 1978 deleted the right to property from the list of Fundamental Rights of the Constitution of India and it relates it to a legal right under Article 300A. This means that no individual can be deprived of their property without the authority of law. This change allows the government to acquire land for public purposes provided it follows due process of law and compensates the land owners fairly.
The refusal of the communities to give up their land especially the water sources for development projects is legally valid. While this resistance may slow down development it emphasizes the need for a more participatory and consultative approach to land acquisition, where the concerns of the community are given due consideration.