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Law, land use and the environment: Afro-Indian dialogues

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Christoph Eberhard

Perspectives indiennes / Indian Perspectives

The Illegal Practice of Cultivation in Irrigation Tanks: An Approach to Legal Pluralism through Actors' Narratives

P. Ignatius Prabhakar

Résumé

La pratique illégale de l'agriculture dans les étangs-réservoirs : une approche du pluralisme juridique à travers les récits des acteurs.

Cette contribution explore l'agriculture illégale dans les étangs-réservoirs servant à l'irrigation au Sud de l'Inde et plus particulièrement dans un district de l'État du Tanril Nadu, et un district du Union Territory de Pondicherry. Les étangs-réservoirs sont des infrastructures bâties depuis quelques siècles afin de collecter l'eau durant la période de mousson et la stocker pendant 4 à 6 mois. Cette ressource est utilisée pour l'irrigation des cultures mais aussi pour l'élevage, la pisciculture et pour les besoins domestiques des communautés locales.

L'empiétement des populations locales sur ces étangs-réservoir, bien qu'illégal et constituant une menace à l'existence de telles réserves d'eau, est néanmoins largement répandu et il est perçu comme une « infraction légitime ». Pour l'instant, les chercheurs en sciences sociales ont délaissé l'analyse de ce phénomène et cette contribution vise à remédier à cette absence de réflexion. Après une brève présentation des villages étudiés, le texte présente les pratiques de culture dans les étangs-réservoirs (vidés de leur eau) et les perceptions que portent sur elles les divers acteurs impliqués, qu'ils s'agissent de cultivateurs illégaux, ou d'autres membres du village ou de l'administration, en s'appuyant surtout sur leurs récits.

Le droit étatique ne semble exister que sur le papier et ne fait pas preuve d'une efficacité réelle. Son application semble se limiter à la collecte occasionnelle d'amendes qui sont perçues par certains des exploitants illégaux comme des taxes d'exploitation... Le système de contrôle local (« informel ») n'a lui non plus aucune efficacité réelle. Bien que les acteurs soient, pour la grande majorité, conscients de l'illégalité de la pratique et qu'ils la condamnent même moralement, elle reste largement reconnue sur le terrain et donne lieu à un véritable droit de la pratique pour réguler l'accès aux terres annexées sur l'espace collectif des étangs-réservoirs, leur partage, leur exploitation... Tout le monde s'accorde sur le fait que seule une intervention forte et déterminée de l'État pourrait changer la situation, toutes les oppositions et sanctions inscrites dans le contexte socio-politique local étant défaillantes.

Les récits des acteurs mettent en lumière la diversité des pratiques qui constituent le phénomène « d'empiètement » des étangs-réservoirs : l'accès à la « propriété illégale », la « vente » et la « location » des terres, le détournement de l'eau pour l'exploitation, l'exclusion des sections les plus défavorisés de la population qui auraient besoin des terres pour leur survie au profit des plus puissants pour qui cette culture illégale représente un surplus de revenus, le mépris du droit étatique et des coutumes locales... Quand on demande aux acteurs de se prononcer sur ces nombreuses activités constitutives de l'empiètement illégal des étangs-réservoirs, ils les stigmatisent majoritairement comme illégales voire comme immorales, même lorsqu'ils les pratiquent eux-mêmes depuis une trentaine d'années. Il est intéressant de noter qu'une multitude de pratiques à « petite échelle » illégales et stigmatisées comme immorales forment néanmoins dans leur ensemble une pratique d'empiètement des étangs-réservoirs qui semble jouir d'une légitimité certaine puisqu'il n'est véritablement remis en cause par personne.

Actuellement la situation se complexifie davantage à travers la création d'associations d'usagers de l'eau qui sont promus par la Banque Mondiale, le gouvernement et les organismes non gouvernementaux dans une optique de bonne gouvernance et de développement participatif. L'objectif affiché de transférer la gestion et l'entretien des étang-réservoirs du gouvernement aux associations n'est pas sans créer de nouveaux problèmes car l'approche nie l'existence de structures de gestion de l'eau déjà existantes.

Texte intégral

INTRODUCTION

1Many contributions to this publication highlight the phenomenon of legal pluralism, the coexistence of various legal orders that regulate people’s behaviour. One of the dichotomies making up legal pluralism, which will be addressed more deeply in this paper, is the dichotomy that Masaji Chiba (1987) has highlighted between official and unofficial law. Especially in non-Western post-colonial contexts, in which the modern State has not managed to impose itself as completely as in its countries of origins, actors’ practices often vary significantly from official law-and are often even completely illegal. Nevertheless, they find legitimacy among the people and actually seem to constitute the effective, living law. It is interesting to note that the legitimation process of these practices is not only a result of ‘grassroots’ movements’ as opposed to the State. Actually state institutions and officials also contribute to the legitimation process through more or less explicit acceptance of the ‘illegal rules of the game’ in society, to which they also partly comply. It appears that the legal game, understood in a wide sense, as for example from the perspective of the anthropology of Law, is much more complex than what can be grasped through the study of the general and impersonal norms contained in statutory law and its interpretation and application by the judiciary (see Eberhard 2001, Eberhard and Gupta 2005).

2As this paper will illustrate, rules and regulations that guide the norms and values in the practices of the community are not necessarily in accordance with state law. There is a definite gap between Taw in action’ and Taw in the books’. There is a continuous mismatch between norms and rules drawn up by the governing body and the practices of those who are ‘governed’, which leads to general situations of non-abidance of the law. Although these situations are illegal in the perspective of the State, they cannot be labelled as illegitimate. Indeed, the respective socio-cultural system tolerates them, as well as many compromised practices of the state apparatus (Heyman and Smart 1999). Popular political practices and economic strategies must also be taken into account in order to understand the dynamics of these illegal but legitimate and quite effective normative systems.

3In this paper I will explore the case of cultivation in irrigation tanks-a widespread illegal activity according to the State law, which characterizes it as ‘encroachment’. Irrigation tanks are physical structures built many centuries ago in order to store water during the rainy season. The stored water is utilized for the irrigation of crops, and more specifically paddy. The water flows from the tank to a stipulated area, called the command area, through gravity. The command area is irrigated through distribution canals from the regulated sluices located on the bunds of the tank. Tank irrigation in India is more prevalent in the south, where there is an absence of perennial water sources from rivers, than in the north. Apart from irrigation, these tanks serve various needs like providing water for livestock, fish production and for the domestic purposes of the local community.

4Prior to the advent of colonial rule, it was the local communities that undertook the maintenance and management of these tanks. There were well-defined rules and regulations that were implemented by local chieftains under various systems (mirasi, zamindari) pertaining to tank irrigation and its maintenance. With the advent of colonial rule, significant changes took place in land tenure and in socio-economic structures, which weakened community activities. During British rule, the standardization of irrigation tanks was implemented in the old Madras Presidency (comprising much of the present states of Andhra Pradesh, Karnataka, Tamil Nadu and Kerala). Those tanks having more than 40 hectares of command area and all the system tanks (whatever their size) came under the control of Public Works Department (PWD) of the State, while tanks with less than 40 hectares were a matter for local government authorities. In both cases, the State had to delegate financial support for the maintenance. This resulted in a process in which the command area farmers had to look to the State for maintenance, unlike earlier days, when the leader in the village had authority. In due course, the government as a centralized authority took control over the irrigation tanks that were formerly under local authority (Guhan 1984, Janakarajan 1991, Vaidiyanathan 2001, Palanisamy et al. 2000).

  • 1 Among the few existing publications one can note E. R. Leach (1961: 234-6), who deals with the encr (...)

5Today, the tanks are classified according to two types: system tanks and non-system tanks. System tanks are fed by diversion weirs or reservoirs across rivers with relatively large catchments. Non-system tanks depend on rainfall in immediate catchments and are rainfed tanks. Over time, the maintenance and management of the tanks became less a matter for the government. In addition, population pressure and other factors created opportunities to encroach on the tanks and their feeder canals, which is one of the reasons for the degradation of irrigation tanks, as mentioned by scholars in a number of detailed accounts of irrigation tanks (Guhan 1984, Janakarajan 1991, Vaidiyanathan 2001, Palanisamy et al. 2000). Encroachment is mainly seen as a vital offence and remains a threat for the existence of such water bodies. The fact remains that encroachment on water bodies and common lands is quite prevalent. However, this has not yet really been studied by social scientists in order to analyse the social, political, economic, cultural and legal stakes and challenges.1 The present paper proposes to shed some light on the dynamics of illegal encroachment on irrigation tanks and endeavours to fill this gap.

6As I am an anthropologist and not a specialist in law, and because there are no qualitative data yet on this topic, I have chosen to provide a first entry into this question through the narratives of the concerned actors about their perceptions of the legality / illegality, legitimacy / illegitimacy of the encroachments. This first overview intends to open the path for further and more comprehensive research on the understanding of the ‘legal game’ that structures water tank management and may thus constitute a basis for future reflections related to ‘good governance’ or ‘sustainable development’ in the concerned areas.

7I will also not theorize about the existing legal pluralism nor will I try to draw any normative conclusions from it. I will rather try to illustrate the ‘illegal but legitimate’ nexus through the narratives of the concerned actors. There is a common acceptance among those cultivating in the irrigation tanks that this cultivation is illegal. Still, they continue to practise it. The common acceptance of this illegal encroachment has created a notion of legitimacy around it. This paper will thus look at the legitimation dynamics, beginning with the ‘illegal pluralities’ in the practice of cultivation in the irrigation tanks.

8After having given a short profile of the villages of study in the first section, I will look at the actors’ perceptions of the practice of cultivation in the irrigation tanks. The third section will explain the practices in more detail. The State law on encroachment, the villagers’ reflections on its implementation and their analysis of the future of the illegal practices will be dealt with in the last section.

1. A Brief Profile of the Villages of the Study

  • 2 For the revenue department, the unit is the revenue village. One, two or three revenue villages can (...)

9The villages of the study are located in the State of Tamil Nadu and in Pondicherry. Pondicherry has the status of a Union Territory. It is composed of four regions (or districts), Pondicherry, Karaikal, Mahe and Yanam. Pondicherry and Karaikal are located in the State of Tamil Nadu. In both of these regions, there are many bordering villages that fall under the administrative jurisdiction of Tamil Nadu. The administrative structure comprises districts that are divided into blocks for development purposes and taluks for the purpose of tax revenue (these units do not necessarily have the same boundaries). The smallest administrative unit is the village panchayat,2 which can be constituted by more than one contiguous hamlet or village.

10The Pondicherry region is bordered by the districts of Villupuram and Cuddalore in Tamil Nadu. The study villages are hamlets or villages with tanks, which fall under the jurisdiction of four village panchayats. Three are located in the western part of the Pondicherry region (Thirumangalam in Villupuram district, Sorapet in Pondicherry and Vadanur, which falls under the jurisdiction of both Pondicherry and Villupuram district); the fourth one, Krishnapuram in Villupuram district, is located to the south-west of Pondicherry, twenty kilometres south of the above cluster of villages.

  • 3 Scheduled Caste (SC) is the constitutional category designating the dalits, who are at the lower le (...)

11The two villages of Purana Singu Palayam (PSP) and Vadanur (VAD) constitute the administrative unit of the Vadanur village panchayat. These two villages share one irrigation tank-the Vadanur tank (VAD tank). Farmers from both the villages have their lands in the command area of the tank. In VAD, there is a colony inhabited by the Parayar, a Scheduled Caste (SC)3 community. A majority of them are landless agricultural labourers and very few of the families own land.

12The majority of the inhabitants in VAD are from the Vanniar caste (initially agricultural labourers and now farmers), who are also called Gounder; they hold most of the lands. There are Chettiar (merchants by tradition, but they also own lands and practise agriculture) and other castes like the Reddiar (agriculturists and large landowners), Yegali (washermen) and the Pillai (accountants), but they are fewer in number. PSP also has a SC colony inhabited by Parayar, with an occupational pattern similar to that in VAD. There are a few families from the dominant caste of the Reddiar in PSP. The majority of the inhabitants of the village are Vanniar, who own lands. There are other castes, Yegali (washermen), Achari (carpenters, blacksmiths), Yadava (sheep/cattle herders) and only one Pillai family, which was formerly the only big landlord in PSP.

13The Thirumangalam village panchayat of Villupuram district is contiguous to the Vadanur village panchayat. This panchayat comprises five villages. The tank is situated in the village of Thirumangalam (TRM). There is an SC colony in the village. The Vanniar caste is preponderant in TRM. There is one Brahmin (upper caste) family, two families of Yegali (washermen) and one barber family in TRM.

14Sorapet (SOR) is also contiguous to the above two village panchayats. The residential area and agricultural land of Sorapet are located in Pondicherry, but part of one of the three irrigation tanks is in Tamil Nadu. SOR also has an SC colony inhabited by Parayar. People from the Vanniar caste outnumber the other castes in the village. Landholdings are distributed among different castes including the Mudaliar (traditional weavers also practising agriculture), Reddiar, Naidu (agriculturists) and also few Muslim families in the village.

15The village of Perichampakkam (PRP) belongs to the Krishnapuram village panchayat of Villupuram district. It has a number of similarities with the previous one. It is also a Tamil Nadu village located between Pondicherry villages; PRP has one tank. The dominant caste in this village is the Naidu, which holds the greater part of the land. The SC colony of the village is located to the north of the tank.

A Brief Profile of the Tanks

16The tank in VAD is the last tank of a system that receives water from a canal connected with the Ponniyar River through a diversion barrage controlled by the PWD of Tamil Nadu. The TRM tank receives water through a canal from the surplus weir of the VAD tank. Similarly, a canal connects the surplus weir of the TRM tank with the biggest tank in SOR. Part of the water spread area of the VAD tank is under the control of the Tamil Nadu PWD and the Pondicherry PWD controls the rest of the tank. A similar situation prevails at one of the tanks in SOR. The area of the VAD tank is 107 hectares and it has five sluices. Of the three tanks in SOR, the tank under dispute, which will be addressed in this article, is a non-system tank and its area is 6 hectares. It has only one sluice. In Pondicherry, unlike in Tamil Nadu, all the tanks-whatever their size and type-are under the control of the PWD. These tanks have been rehabilitated under the Tank Rehabilitation Project of Pondicherry (TRPP), which was initiated in 1999, and tank associations (TA) have been formed for all tanks. It is envisaged that the TAs, with the support of NGOs, are to manage and maintain their respective tanks, which remain under the control of the PWD. The encroachments on the tanks were evicted through this project. The TRM tank falls under the control of Tamil Nadu PWD. The area of the TRM tank is 146 hectares and it has five sluices. Farmers who cultivate paddy and sugarcane have encroached on the entire tank and part of the canal connecting the VAD and TRM tanks.

17The PRP tank is part of another system located downstream on the same river. It receives water through a distributory canal from the main canal. The area of the tank is 24 hectares. It has two sluices.

2. Actors’ Perceptions Concerning the Cultivation in the Tanks

18In the region of Pondicherry there are eighty-four tanks. Encroachments were evicted with the introduction of the Tank Rehabilitation Project of Pondicherry beginning in 1999, whereas encroachment on the neighbouring village tanks located in Tamil Nadu continues.

19In this section I will introduce narratives of actors pertaining to their perception of tank encroachment. These are the people who are and were encroachers, landed or landless and from different castes. This will lead to questions that will be answered in the following sections.

  • 4 The names of all the actors have been changed. All the interviews were translated into English by t (...)

20Arun,4 a Vanniar by caste from the village of VAD, who has some land in the VAD tank command area, was cultivating in the tank before the formation of the TA and the eviction of encroachment. His argument about his previous practice is:

“One can cultivate in the tank. What happens during the summer season in the tank? Is any revenue generated from the tank during summer for the government? [no] So it could be used for humans and cattle in an appropriate way. When trees are planted in the tank, they are only useful for ten people. But when cultivation takes place in the tank... when I cultivate on my land, ten people are required for the work.”

21He feels that there is nothing wrong in making use of the space that could benefit many people by providing job opportunities. But he criticizes the rehabilitation work carried out on the tank, such as the planting of trees. Logu, an SC landless agricultural labourer from the same village, differs in his view on the gains attained by encroachment, in spite of his being from the group of people who could benefit from Arun’s point of view:

“Though we had lands in it (the tank), it is good now that there is no cultivation taking place in the tank. There is no problem for anybody now. Only those who were well-off were becoming better there (by cultivating in the tank). The ones who had nothing did not live from it”.

22Palanisamy, from TRM, explains how these landowning people could “become better”:

‘‘There are many cases of people who have bought the patta (legal) land from the income that they made by cultivating in the tank”.

23The perception of other landless villagers from VAD, SOR and PSP who were able to cultivate for some time in the tank is that they experienced food security. They considered the land they worked on as their own, as land on which they worked for themselves. But now they have to look again for work elsewhere. In the SC colony of VAD, there were more than 25 families who had cultivated land in the tank for at most two years. But they had no other option than to leave the lands with the other farmers from other castes like the Vanniar and Chettiar, who had legal land and water for irrigation, as we will see later.

  • 5 A position in government service with decision-making authority.

24Boopathy, a government employee with a gazetted5 rank, is a member of the Vanniar caste and resides in PSP. He holds land near the foreshore area of the VAD tank and is said by many villagers to have been a major encroacher on this tank. According to him:

‘‘It is a wrongdoing to cultivate in the tank. But, on the other hand, cultivation can take place for one bogam (cropping season) without (the tank) being affected, therefore that is also nothing wrong. It (tank) is a common place and, to protect it, there should not be any encroachment, because only then will the water catchments in the tank be good and the water can be used (...) Cultivating in the tank is wrong, and it could be also considered as a very bad activity... Nothing can justify the act of cultivating in the tank.”

25Boopathy is well aware of the legal aspects, as he holds the position of sub-magistrate. But he had indulged in encroachment in the irrigation tank and endeavours to speak judiciously. Similar is the case of Chakarapany, a Chettiar, who has a fertilizer shop in VAD. He is a leader in the village for a regional political party, a big farmer and also the vice-president of the VAD TA. Himself an encroacher on the TRM tank, which is still fully encroached, he admits:

“I have about 4 acres of land adjoining the Thirumangalam tank and I also have about 3 acres of land that is cultivated in the (same) tank. If they (government) say that the encroachments have to be evicted, we will all leave. Some time ago they wanted to plant trees, so we did not cultivate. Then, when others started cultivating in the tank, we followed. But this (income) is not the main thing for us. As for me, if they ask me to leave the land tomorrow, I would do so immediately. One of our pangali (kin terminology referring to first-degree parallel cousins) is cultivating a large stretch of land in the tank. Cultivating in the tank is wrong, but I am doing only a very small area and tomorrow if I am asked to leave the place, I will leave it willingly.”

26In TRM village, the assistant to the village administrative officer collects fines imposed on the encroachers by the revenue department. He himself was paying the fine and cultivating in the tank. While discussing this, he conceded that cultivating in the tank is illegal. And he could not justify his doing so.

27Some of those who are or were cultivating in the irrigation tanks take a dual stand on encroachment. On the one hand, they say it is illegal. On the other hand, they are or were encroachers themselves. Many of those who try to justify the practice are the ones who are economically well off, belong to an intermediate stratum in the socio-economic system and have some social or political importance in the society (members of TAs, panchayat members, caste leaders, etc.). An extreme case is that of Chakarapany from VAD. Although he was involved in evicting the encroachment on the VAD tank, he is nevertheless still an encroacher on the neighbouring tank in TRM. What is the underlying justification for somebody like him to act this way? How can government employees themselves indulge in illegal activities?

28The second category of people belongs to the historically deprived and socially excluded Scheduled Caste community and they are in a majority of cases landless agricultural labourers. Most of them do not take any critical stand regarding cultivation in the tanks. Those who had formerly cultivated there viewed it as a good support for their livelihood in terms of food security. But then, why does Logu think that “it is good that the practice has been stopped”? And who are really the beneficiaries?

29The third category of people consists of those who are not encroachers and are mere witnesses to the whole act of ‘wrongdoing’. They for the most part condemn the act of cultivation in the tank. Why then are they not able to prevent others from doing so? In what way are those who do not cultivate in the tank affected by this practice?

30The landless remain neutral to the encroachment on the tanks owing to the beneficial status they attained through the practice. But among those who have increased their wealth in this way, there is a discrepancy between what they say (describing the encroachment as wrong) and what they do (continuing to encroach when possible). Those who do not encroach on the tanks condemn the practice of the latter and justify that of the landless. The perceptions are differentiated according to the respective actors, who are categorized on the basis of their social status, their landholding and their stand regarding encroachment.

31The general perception of the people who continue cultivation in the tanks is that there has to be an external pressure to prevail on the well-understood and known fact of ‘wrongdoing’. Encroachment is deliberately carried out and is openly said to be illegal, which in a way is not surprising since this illegal activity cannot take place covertly. While justifying the act, the perpetrator accepts that he/she is doing something illegal; the practice is condemned, but continued. The encroachers who were evicted have not fully accepted their eviction because of the benefits they received from cultivating in the tank, and wait for a new opportunity to do so.

3. The Process of Cultivation in the Tank

32To answer the previous questions and to understand the relevant discourses, the very practice of cultivation in the tanks has to be described in detail. For example, how did the practice get started? Who are the encroachers? In this section an effort is made to exemplify the actors’ statements on the basis of their practices and the forms of social crisis ensuing thereof, as well as offering a typology of land tenure that has evolved on the encroached land.

The Initial Stage

  • 6 The dead storage area is the part of the tank where water is stored below the level of the sluices (...)

33Cultivation in the irrigation tanks did not take an organized form until the mid-1970s. It was formerly the landless SCs who grew cucumber creepers on the inner side of the tank bund when there was water in the dead storage area.6 The cucumbers were sold in the market to support their livelihood during seasons when there was no agricultural work. Nevertheless, there are different versions as to how the cultivations began in an organized manner. According to Boopathy, who was himself an encroacher residing in the village of PSP:

  • 7 Kani and kuli are local land measures. 100 kuli = 1 kani = 1.3 acres; 1 acre = 4,000 square metres; (...)

“Do you know how encroachment began in the tank? When the present (village) president’s father was the panchayat president... the land was there (in the tank) and many of them (people) went and cultivated. The reason why cultivation took place in the tank was that all the patta (legal) lands in this place were with the Reddiar. In this village the major communities are the Reddiar and the Gounder. Apart from the Reddiar, most of the people were labourers. Among the Gounder, it was my grandfather who had the most land (4 kani7). At that time, the Reddiar used to oppress the other castes in various ways. The president of the panchayat, who had a certain sympathy for the SCs, allowed them to cultivate in the tank by providing water from a borewell he dug on the temple land located near the foreshore of the tank. Later, numerous other borewells were made and many provided water that made cultivation in the tank possible.’’

34Shekar, an executive committee member of the VAD TA, and also the village panchayat president, told us what he thought are the reasons for cultivation in the tank, not denying the role of his father mentioned by Boopathy:

“The main reason that I would give is that the continuous failure of rain had forced the farmers to cultivate in the tank. If there had been good rains and continuous filling of the tank, then the land (in the tank) would not have been good for cultivating anything. And when there was a long interval without rain for some years, the texture of the land in the tank was very good and fertile. Therefore the harvest was five times better than that on the command area of the tank. Later what happened was that those who had experienced the harvest there (in the tank) went so far as to prevent the water from reaching the tank when it rained.”

35Arun from VAD (quoted in the first interview), who also provided water for others to cultivate in the tank, said:

“This was at the time of the green revolution and everyone wanted to cultivate crops wherever they could... Since there was land available in the tank they made use of it. So, they cultivated as much as they could in the tank and when this was sanctioned, they stopped cultivating it and left.”

36Shekar further explained how cultivation in the tank took place, also referring to the legal property of one acre in the tank that belonged to Arun, who had formerly served in the army:

“Initially the government gave patta to retired army personnel for land in the tank. Those who already had patta land in the tank extended their land boundaries even more and cultivated in the area. At that time, only rainfed crops were grown on that land. Then, those who were close to them also came and cultivated on the land, and this is how the cultivation in the tank flourished. And when motor pumps appeared around the tank, water was supplied to undertake regular agricultural activities in the tank. In this way, the growing of cucumbers by the landless SCs was curbed.”

37Natarajan, 38 years of age and an SC from SOR, explained how he used the land in the tank:

“There are three tanks in the village. In the new tank, the landless people, after levelling the fallow land of the tank, began cultivating. So, sixty-three families were cultivating in the tank. The tank was used for cultivation even before I was born. It was the BCs (referring to the Vanniar in the village) who gave the idea to the SCs to cultivate the land, and it was they who had motors and with them water was supplied to the land cultivated by us. We had to pay for the water they provided.

In the other two tanks in SOR, only one or two seasons of cultivation would take place, but in this tank we would cultivate for all (three) seasons. It (the land texture) was like punjai (dry land), where we would cultivate cotton, karamani (a variety of bean) and also paddy. This land was like nanjai (wetland) and punjai.

  • 8 Natham purambukku: government land that will be given to people for residential plots.

38The PRP tank (in Tamil Nadu) is located very close to a tank in the Pondicherry jurisdiction that has been rehabilitated. To the north of the PRP tank is an SC colony whose inhabitants, prior to 1975, cultivated the northern part of the tank during the dry season. Their main crops were millets, pulses and vegetables. The farmers of PRP said that this was not considered to be encroachment and it was tolerated because it did not affect the tank irrigation system. A Naidu, who had access to groundwater through borewells, initiated cultivation on common land8 adjoining the tank. Taking this as precedence, the SC of the colony began to cultivate paddy in the tank. This caused unrest among the Naidu caste, members of which made a complaint petition to the government. When no government action followed, the Naidu allowed their cattle onto the land cultivated by the SCs and their crops were destroyed, resulting in conflict between the SCs and the Naidu. This is said to have happened in 1975. The government left the issue in abeyance and already by 1980 the whole tank had been encroached upon. At present, the SC encroachers outnumber the Naidu, although the amount of land cultivated per family by fewer Naidu is more than that of the SCs. Now the encroachers cultivate paddy three seasons a year with water supplied by six borewells: three on the northern part of the tank and three from the command area. Here, unlike the tanks in TRM and VAD (as we will see later), the SCs continue to cultivate in the tank, without being suppressed by the borewell owners.

39Palanisamy, the village president of TRM, provided details on how the cultivation in the TRM tank took place, also mentioning other issues related to it:

“The tanks are always government property. In those days there was a strict control by the Brahmins and when, from 1965 onwards, they started moving out (of the village), there was no longer any control and therefore encroachment took place.

There was a person who came to our village after retirement from the military, and he had requested the government for some land to cultivate. In our village panchayat there are no porombokku lands of any type. As the government did not give any answer, he was the first to encroach on three acres of land (in the tank) during 1964-65. The villagers opposed this and there were even fights to evict him. He is from the Yegali (washermen) community. He then went to the police for support; they did not do anything either. Not able to withstand the pressure exerted on him, he left the land after a few years and went away. But the neighbouring landowner (on legal land) continued to cultivate.

One farmer from the command area laid an underground cement pipe from his borewell to the tank, cutting underneath the bund, which supplied water for about 30 acres of land in the tank. But following a dispute, his son went and complained about this issue to the government authorities and the father was fined 30,000 rupees. And now water is no longer supplied to that 30 acres of land and so it is not cultivated.

The main reason for encroachment is due to the electricity facility in Pondicherry with which the motors in that part are able to supply water round the clock, whereas in Tamil Nadu the electricity supply for irrigation is controlled and is provided only at certain times. There is a Chettiar in VAD who was able to build a house that cost more that ten lakhs from the rent (sale) of the water supply. The cultivation on his own land and in the tank gives him more than 200 bags of paddy. The landless have not benefited at all from the encroachment, only those who already have land are able to profit from it.”

40There were initially a few cases of resistance by the villagers, but it became over time an accepted practice. The farmers in the command area of the TRM tank express their unhappiness regarding the encroachment in the tank, but they have been witnessing the practice for nearly four decades now. The fact is that there is a difference between those who are farmers by inheritance on the command area of the tank and those who have recently bought land. The former possess traditional rights over the share in the fish harvest and have not encroached on the tank. It is the latter who supply water for cultivation in the tanks at TRM and PRP.

41The prevailing hierarchic caste system and the economic disparities that exist among the villagers have contributed significantly to the encroachment on the irrigation tanks. The following three categories of social statuses could be inferred from the villages under study: the once dominant castes like the Reddiar and Brahmins; the other preponderant but not dominant castes like the Vanniar, also called Gounder, who have attained some level of prominence in terms of social status; and, the historically deprived SCs. Correlating the different aspects and versions of the actors’ narratives on the studied practice, it is seen in the case of VAD that the Gounder who was the panchayat president allowed the landless SCs to cultivate in the tank. A few Reddiar supported it and a few were opposed. Feuding between individuals of different castes in the village society, as well as within families, had implications in terms of encroachment.

42The difference between the economic returns from the harvest from the tanks and from legal lands has been a contributing factor to the continuation of the practice. This has created a situation of jealousy and competition both between landowners without borewells, the landless and borewell owners, and within each of these groups.

The Plight of Those Dependent on Water Supply

43Economic disparities played a significant role in this act of encroachment, which resulted in various forms of social crisis among the encroachers. Shekar from PSP said:

“Initially there were many landless who went and cultivated in the tank by buying water from those who had motor pumps. After a time, the lands that were cultivated by the landless were bought by the motor pump owners”.

44Palanisamy, the village president from TRM, described the plight of the landless in his village:

“In the beginning, the landless from a few surrounding villages came and tilled the dusty land in the tank. Having no opportunity to get water, they were cultivating only dry-land crops. And when the possibility came to take water into the tank with the introduction of motors... the greediness of the motor owners... who got rid of the landless... It was they (those owning motorized pumps) who were cultivating in the tank... There are sixty-eight families in the SC colony who used to cultivate in the tank. Once again the people with borewells tricked the SCs by not supplying water and ‘bought’ the land from them. Now there is no one in the colony who is cultivating in the tank.”

45Kali, an executive member of the TA in SOR, described how the weaker sections were forced into vulnerable conditions in that village:

“Moreover, it could be said that when there were a few wage labourers and cattle dependents who cultivated, these people, who had no land, were dependent on the landowner who had a motor outside the tank area. So they got water from the borewell owners. The first year, they did provide water on requirement; the second year, the borewell owners would not supply water when required, which put those who worked on the land in such a situation that they (without a motorized pump) had to face loss. So they got some money from the borewell owners to clear their debts, leaving the land with the borewell owners. For them (borewell owners), this was land in addition to what they were already holding. Many of the landless who cultivated in the tank had to face similar consequences and leave the land with those on whom they depended for water.”

46Logu (from the second interview), a landless SC from VAD, confirms the need for loans to level one kani of land in the tank and for pledging a few household items in order to repay the loan. “Those were difficult times.” And he continued to describe how the borewell owners played a crucial role in the whole scenario:

“When cultivating for one bogum (cropping season) we would do good work and would grow the crops well. The current people (those owning borewells)... what they would do for the second bogum is, they would not give water when the crops were maturing, and would let them dry up. They thought that if the crops are left to dry up, they (those buying water) would leave. This was done on purpose. On insisting on water, they would say that if we want to do (cultivate), we could do. Or otherwise we should just leave it and go. If they were left off with them, the crops would come well. Like this, those who had two or three motors were eating it up for those who had nothing and were cultivating one or half kani, they (the borewell owners) would provide water for two bogums, but for the third bogum they would say that there was not sufficient water. So those lands would be fallow for two bogums and then, for the third bogum those with a motor would take the land and cultivate it, saying that no one was cultivating it. Like this they were eating... for us there was no benefit at all.”

47Paddy is the crop that is cultivated in the tank. Many landless people, mostly SCs, began to cultivate in the tank by buying water for irrigation from the borewell owners. The landless and SCs took loans to invest in cultivation. The harvest from the tank bed during the initial stages was two to three times more than in the command area. This induced the farmers who were only selling water to seize the opportunity to cultivate in the tank. Then, the borewell owners deceived those dependent on them and did not provide water. The above narratives explain the different strategies undertaken by the borewell owners to cultivate in the tank. The landless received the money from the borewell owners to pay back their loans and the land they cultivated was taken over by them. Thus, the economically deprived landless and SCs were deceived by the borewell owners. This was the case at the VAD and SOR tanks when they were encroached upon. In TRM, where encroachment still exists, this type of crisis continues. The financial, social and political power, in addition to the water power, of a few borewell owners, suppresses the SCs and the landless in the village. In PRP, the situation is of a different kind. Although the landless SCs do experience the domination of the borewell owners, the extent of the crisis is less than in TRM, and consequently the SCs continue to cultivate in the tank.

Land Appropriation and Land Tenure

48The land in the tank is common land. It is the property of the State. As mentioned by one of the actors earlier in this paper, with the advent of the Green Revolution and because of the limited space available for cultivation, people occupied the common land. In the process, the occupants have adhered to a land-use system, while at the same time being aware of ‘wrongdoing’.

49More interesting is the fact that-as one could notice in the narratives-there exists a notion of buying and owning the land in the tank. The adaptation of land tenure and appropriation in the tank is similar to that of legal lands.

50The value of the land in the tank has a different connotation than that of legal lands, as expressed by Shekar in the case of the VAD tank:

“The land tenure was similar to that of legal land, but the money involved in it was relatively lower than that of the legal land. The ‘ownership’ of the land in the tank was understood in such a way that those who first went and cultivated a plot ‘owned’ it. Those plots were leased and even sold to others for a few thousand rupees... The legal land (one kani) would cost one lakh (rupees), but the same amount of land in the tank was bought for only 2,000 rupees.”

51Although responsible for collecting fines from encroachers for the revenue department, Kumar, from the SC colony in TRM, described the way he ‘acquired’ land in the tank:

“I bought 30 kuli from someone for 600 rupees. The 600 rupees was not for the value of the land. Rather, it was for the previous man’s work on the land for the time he possessed it. That person started by levelling the ground on that piece of land, and the money is for that. Even though it is not for the land, I still feel I have a right over that piece of land because I bought it.”

52Another way to acquire land is, as in legal land tenure, to inherit it, which was the case for Natarajan from the SC colony in SOR:

‘‘Even my father had 30 kuli of land in the tank, and after that, my brother and I were each cultivating 15 kuli... I had 15 kuli of land and my brother had 15 kuli. It is very difficult to say what the yield was, sometimes it would be two sacks or four sacks, and if we had a good vivasayam (agricultural) season, then there would be 12 sacks of paddy... On an average these sixty-three families would have been cultivating 25 kuli land each in the tank; it would vary from 12, 28 or 30 to 40 kuli of land.”

53These lands were also leased. For example, in the village of PRP, the Naidu lease ‘their’ land in the tank and let others cultivate ‘their’ land in the tank on the basis of a returnable lease. The lands are also sold to others. There is a general acceptance among the villagers regarding the ‘ownership’ of this common land. In this village, they have gone a step further by legitimating encroachment at the local level, as there are four acres of land that have been demarcated as temple land. This land is auctioned for lease and the income generated thereby is utilized for the management and maintenance of the village temple. This utilization of the income is a way of justifying the common use of the common land.

54A system of land appropriation and land tenure is practised on the encroached land in the tank. In this system, there are notions of private ownership of common land that have been accepted in the villages. Moreover, the common land is sold and leased by the ‘owners’ at a designated value and the transactions are negotiated and contested. The common land that is ‘owned’ by individuals is also viewed as private property, and this land is inherited by and divided among the siblings of the person who ‘owned’ it. In all the villages in this study, the price of water that is sold for cultivation of land in the tank is higher than the price in the command area.

55A very specific method of land appropriation prevailed at the VAD tank. During the initial period after cultivation in the tank had begun, there was unrest in the village of VAD. Anbu, a forty-year old village leader, who had not been cultivating in the tank, told us:

“Twenty-five years ago, when there was a conflict between the encroachers, the elders in the village intervened and divided it (the encroached land) among those who had no land, with about 20 or 15 kuli for each of them.’’

56Arun (from the first interview), who is in his early 60s and has a prominent position in the village leadership, has patta land in the tank. He described the same incident:

“What happened in our village when encroachment was at its peak was that a few of them (villagers) came and complained that they had no opportunity to cultivate in the tank. So, ten people came together and divided the land equally among those who wanted to cultivate in the tank. All those who had (land) and those who did not have (land) divided it among themselves.’’

57In this type of appropriation of common land, although the villagers took such initiatives, the landless and the SCs did not continue their cultivation, for the reasons mentioned in the previous section. Arun, the village elder who allotted land in the tank to himself, in addition to his patta land, did not want to take responsibility in the appropriation of common land.

4. An Illegal Practice

Laws on Encroachment and the Administration

58The Tamil Nadu Land Encroachment Act, 1905, and The Pondicherry Land Encroachment Act, 1970, are the two laws that address encroachment directly. These Acts clearly mention the duties to be assumed by the revenue officials in order to address encroachment:

  • 9 A series of procedures is listed in this manual under various topics such as VAO, revenue inspector (...)

“Unauthorised occupation of Government lands is an offence. All these occupations do not allow the public to utilise the land for which it was set apart. As such the Village Administrative Officers and the Revenue Inspectors should even in initial stages prevent the occupation on such lands. In cases where the occupants have not been prevented, the steps to be taken to evict them by the revenue officials under the Tamil Nadu Encroachment Act 1905 as follows...”.9

Generally in all encroachments, the encroachers are considered to be Trespassers having committed criminal offences” (NIC, Departmental Manual).

59A fixed fine is imposed on the encroachers, and a specific procedure exists to evict them. Consideration is given to the fact that an encroached land bears crops:

“If in the land to be evicted there is a crop in advanced stage and the destruction of the crop is now considered to be not feasible or advisable by the Tahsildar, he may permit the harvest of the crop and allow the encroacher to vacate from the land thereafter” (NIC, Departmental Manual).

60Here again, we will hear the voices of the villagers concerning the role of the Government when it comes to addressing the issue of encroachment in their villages.

61Let us see what Shekar from PSP had to say to the Government’s stand regarding the VAD tank, where all encroachments were evicted through implementation of the TRPP:

“The stand of the government over these encroachments was not strict. Fines were imposed on those cultivating in the tank, and the revenue inspector, would also get money (as bribe). The legal amount of the fine was only 100 rupees. If it had been imposed as 1,000 rupees, then nobody would have dared to do it. If the government officials and their approach had been strict, then these activities would not have taken place at all.”

62Kumar, assistant to the TRM village administrative officer, told us about the process of addressing encroachment:

“Initially the tank was like a forest with trees, but over time they cleared it and started cultivating on it. Fines were taken from those who encroached... The fine would range from 100 or 150 to 200 (rupees)... It is for the wrong that was done that there is a fine, but some people think that it is a tax, so that they could enjoy the land”.

63Let us hear what Palanisamy, the village president, said in regard to the government actions and to the corresponding practice of encroachers at the TRM tank in Tamil Nadu, where cultivation is practised without reserve:

“There is a high court order to remove the encroachments. In spite of this... it is the ineffectiveness of the government to implement it in the villages The government would regularly issue notices to the people who were cultivating in the tank. What would happen is that a few of them (encroachers) who had received the notice would get together and would take a good sum and bribe the concerned officials. As long as the official has his post, he will not disturb them.

  • 10 Under the Tamil Nadu Encroachment Act of 1905, the VAO issues the ‘B memo’ to the revenue inspector (...)

And then the government has not taken proper steps to stop the encroachment. Fines were imposed on the encroachers but they would not pay them properly. There is a number 6 Bima (B Memo)10 notice that used to be given to the encroachers, which means that they have to move out in 15 days, but the government was not strict in this.”

64The state administration (village level and taluk level) has not been strict enough in implementing the law on encroachment and in stopping the encroachers from cultivating in the tank. The fine that is collected is not high enough to deter the encroachers from the practice. The government administration does not effectively address issues such as corruption and the lack of interest of officials. The eviction of encroachers is not strongly enforced. There are even lacunae in the government’s approach to common land. As we could see, there are patta lands in the VAD tank. The government has issued patta - legal documents-for land in the irrigation tank. This in itself is an offence committed by the government. On this point, Arun from VAD, who holds patta land in the tank, said:

“I do not know for how many years we have the patta for this land (....). Even in the survey department there are no records with which to trace back to when the patta was actually issued. It is only known that there is a patta.... Even the government has its own way of dealing with the law. When the politicians see that there are a few hundred votes, fearing to loose those votes they remain indifferent to such issues.”

65In Pondicherry, there was a will to evict encroachers under the TRPP. This was done through the formation of the TA, which played a major role in the eviction. In Tamil Nadu, although an Act was enacted to involve the irrigators in the maintenance and management of irrigation tanks, its implementation is taking place in a phased manner. Farmers in the command area in the Tamil Nadu villages that were studied are waiting for government action so that the tank can be utilized for irrigation, but ambiguity prevails in this regard.

Perspectives on the Future of the Illegal Practice

66The narratives in the sections above have helped us to get an idea of the process of an ongoing illegal activity, notwithstanding a law that forbids it. We will now explore how this practice, which is perceived as illegal, enjoys a certain legitimacy among those who were or are still involved, as well as among those who are witnesses to the practice.

67Boopathy, who is said to have been the major encroacher on the VAD tank, explained:

‘‘There was no opposition from anyone in the village regarding the practice of cultivation in the tank. Only in recent years has there been opposition from Japan (a prominent person in the village who is referred to in this way because of his short stature) and a few Reddiar. This opposition was only possible (among big landowners) under the pretext that workers were not coming to work on their land because they (workers) were cultivating in the tank.”

68The TA of VAD was instrumental in evicting the encroachers and the process of eviction is said to have been a very painful task for the executive members of the TA. In reflecting upon the practice of cultivation in the tank, Shekar an executive committee member of the TA, observed:

“There was not much disturbance for the other people of the village... When there was rain, water came (into the tank) and got drained. Then they cultivated in the tank for only three months and the cycle was routine... At that time, this practice was not considered to be an illegal act.... Those in the command area also had water in one way or another from their borewell. And only when the borewells did not have enough water did many in the command area have an antagonistic view of cultivation in the tank.”

69From the statement of Palanisamy, the village president of TRM, it becomes clear how unable the authorities who are meant to uphold the law are:

“When it is known by everyone that it is an illegal activity, this cannot be called tolerance of the illegal activity, but it is the indifference of those who oppose the encroachment only in principle. And, as a panchayat president, I also have a vested interest in being indifferent to this illegal activity. As election is coming, and if I go and ask them... though there are only a few (cultivating in the tank)... to move out, and ask them not to cultivate in the tank and take legal action, it would reflect on my contest in the election. Those who got evicted would tell everyone what I had done and work against me during the election.”

70There is a notion of acceptance among the villagers where encroachments prevail. This legitimation of encroachment is possible when there is a politically influential individual in the village who supports the encroachers, or is one himself. For example in the case of the PRP tank, an affluent Naidu is cultivating four acres of land in the tank. He was already an encroacher in the 1980s, when he was the village panchayat president. He also sells water from his borewell on his legal land to others who are cultivating in the tank. Previously, until the 1970s, influential persons in VAD and TRM had control over the tank and over the village. This was considered to be the main reason why the tank had not been encroached upon. And it was only after their absence that the encroachment began. At the VAD tank, it was a landlord from the Pillai caste, with more than 80 acres of land in the command area; at the TRM tank, it was few Brahmin families who held a large part of the land in the command area. The present village leaders and politically influential persons in these villages, although they condemn the act of encroachment in principle, remain indifferent to the practice of cultivation on the encroached lands. The political stand on encroachment that prevails at the local level is not powerful enough to exercise control. There is, however, a statutory law that makes ‘encroachment’ illegal.

71The economic returns from cultivation in the irrigation tanks in these villages is said to be a contributing factor in the continuation of this practice. The fact remains that the economic returns from this illegal practice do not benefit the economically weaker sections of the villages. Rather, it is ‘fattening’ those who are already economically well off.

72The number of SCs and the economically weaker sections of the other castes cultivating in the tank in TRM has decreased. This is attributed, on the one hand, to the power of the borewell owners and, on the other, to their own financial vulnerability. They wish to continue this practice without being inhibited by the illegal aspect because it provides them grains and hence food security. The borewell owners and the relatively economically well off people, on the contrary, condemn the encroachment for form’s sake, but continue to benefit from it. The other contention is that, while the tank is the property of TRM village, the greatest benefit from this illegal activity is received by the farmers with borewells from neighbouring villages, who hold lands near the foreshore area of the tank.

73In the process of eviction at the VAD tank, the landless SCs did not show much resistance. It was rather the borewell owners, who had been providing water as well as cultivating in the tank, who showed the most resistance to the eviction.

74In SOR, there in an undercurrent of social tension between the SCs and the other castes in the village as a result of a conflict that took place a few years ago. This has developed into the issuance of evictions and is manifested in the rehabilitation of the tank. One of the three tanks in the village was encroached upon by the SC community. They demanded compensation at the time of eviction. The leaders in the TA, who are from another caste, said that there had been inequality within the SC community and that only a few families benefited from the cultivation in the tank. Hence, a majority of the families in the SC colony want the tank to be rehabilitated. But those who were cultivating disagree and say that a majority of the families had cultivated in the tank. They proposed two options: to receive compensation from the government or to continue cultivation in the tank. The rehabilitation work on this tank has thus been stopped as a result of resistance by the SC community in the village. In a meeting to solve the problem, the head of TRPP responsible for the rehabilitation of the tank has verbally agreed to the compensation. But, the SCs accuse the other caste people and their political connections for the delay in receiving the compensation. The fact is that eighty-three other tanks in the region were rehabilitated without any compensation for the encroachers.

75The encroachment has created fractious situations among the SCs of SOR, VAD and PSP. There are two factions in the SC colony in SOR, one that opposes the encroachment, not because it is illegal, but because they did not have the opportunity to cultivate in the tank, and the other faction that wants to continue with the cultivation. There is a minor conflicting situation between the landed SCs and the landless SCs, who were both encroachers. In the process of eviction from the SOR and VAD tanks, a few of the landed SCs were co-opted into the TA, which was carrying out the eviction. The landless SCs accuse the landed SCs for their deprivation.

76Will this cultivation in the irrigation tanks continue? The command area farmers have said in many instances that they were against encroachment, but that they remain helpless because no serious action is taken to stop it in places where cultivation on the tank beds continues, as in TRM and PRP. In the case of the VAD tank, where the encroachments were evicted, Shankar, who belongs to the TA and is said to have played a vital role in the eviction, described how they were able to act:

“The government has to take strict measures like disconnecting the electricity service to the motor that is supplying water to the land in the tank.

As for the eviction of encroachers on the Vadanur tank two years ago, we negotiated with the encroachers but they did not listen to us, they had the attitude “why should I listen to what you say”... So we approached the electricity boards of both Tamil Nadu and Pondicherry, which then issued notices to the borewell owners supplying water to the land in the tank. In this case, the Tamil Nadu electricity board, whose action was correct, fined two farmers from the village of Kumalam (a village located near the foreshore area of the tank) Rs. 35,000 each. After this single incident, many borewell owners refused to supply water to the people who were cultivating in the tank. And then those who cultivated in the tank gradually moved out, and so we were able to extensively work (rehabilitation) on the tank.”

77The source of water for irrigating the crops grown on the tank bed is a major factor in the continuation of the practice. The Government provides electricity connections to the motors to draw water from the borewells for irrigating the land that is owned legally by the farmers. But water is supplied by these motors to the lands in the tanks, which explains the increasing encroachment. The political parties in power in the State do not wish to take a decisive stand in addressing the issues pertaining to encroachment. This is obvious when a village president, who is personally affected and disagrees with the encroachment, shows indifference in addressing the issue. He has an inherent fear that his political status in the village would be threatened if he were to take steps to evict the encroachers.

78The encroachers in most of the cases do understand the notion of illegality that prevails in encroachment, for they emphasize the external pressure exerted on them to stop. There are other factors, social, political and economic, which support their continuance of the practice. Two big farmers, who cultivate on a large-scale in the tank and also provide water to TRM encroachers, are local leaders of the regional political parties. As concerns their cultivation in the tank, one of them firmly stated that they had written to the Government about the cultivation and wanted to stop.

79The State’s ability to control the encroachment in irrigation tanks is not impressive. Fines are collected by the State from the encroachers who cultivate on the tank bed. But a few of the practitioners have misunderstood this as a tax and, according to them, the practice is legal. The control system at the local level also has no say in resisting or evicting the encroachments. This illegal activity, or ‘wrongdoing’, has gone beyond the limits of moral values, because the people with social status and power remain indifferent. No question is raised against the encroachers from any front; there is thus a wider notion of acknowledgement of the practice. The present encroachers themselves feel that only strong intervention on the part of the State could deter them from this illegal activity, as there is no opposition or sanction that could stop them in the local socio-political context.

Conclusion

80The narratives of the actors related above highlight the different dimensions of the practice of cultivation in irrigation tanks. This practice is carried out under an accepted backdrop of illegality. It has obtained an acceptance (which continues), but has many activities associated with it that are considered to be ‘wrong’. In the local context, there are multiple reactions to the activity, which is perceived as wrong and ‘illegal’. Owing to its politically sensitive character, taking an unequivocal stand is difficult. There are many activities involved in this single illegal act of encroachment on irrigation tanks. When people are asked to evaluate these activities, they consider them to be illegal, although they have been practising them for a few decades. To list some of the activities: attaining ownership of illegal land, selling and leasing the land, misappropriating the water from legal landholdings, oppressive nature of the borewell owners, deprivation of the weaker sections as regards food security, dominance of the politically influential, indifference of the state judiciary mechanism, indifference of the local customary mechanism. It is very interesting to note how the compendium of many small-scale illegal, unethical and illegitimate practices gives rise to an illegal but nevertheless legitimate large-scale practice of cultivation in irrigation tanks.

81Under the legal set-up of the State, there is an Act addressing encroachment that is meant to control, check and enforce. In practice, there is encroachment on irrigation tanks, which is one of the types of encroachment that is listed in the Act. Infringement of the law has been taking place for more than three decades and the State legal machinery is not able to stop it. Except in a few sporadic cases, like in the Union Territory of Pondicherry, eviction from irrigation tanks was made possible through the TRPP, which was funded by the EU. But where does the flaw lie in the larger state of Tamil Nadu? Is it the Act or the state machinery that is supposed to enforce it? The functioning of the state administration that allows illegal activity to continue is manifested in many forms. From the narratives we have come to know that the village authorities, for example the village president, have shown indifference to the activity. In another village, the village president is an encroacher himself, while government employees are also encroachers and high officials take bribes from encroachers for being indifferent. To be righteous, the government authorities have to uphold the law as prescribed and perform their duties; it becomes illegal when they do not conform to the law.

82Water user associations (WUAs) and TAs are formed by the Government and by NGO initiatives in Tamil Nadu and in Pondicherry. The main underlying idea, according to the ideology of good governance and participatory development, is to transfer the management and maintenance of irrigation (canals and tanks) from the Government to these associations. Different outcomes are emerging in this process. For example, these associations have found new avenues to exercise social dominance and power through managing and maintaining irrigation resources. There are also members of WUAs and TAs who do not know why such associations are formed. In some cases the NGOs have their own objectives in promoting these associations, which undertake rehabilitation works on the irrigation tanks through their intervention.

83In the case of the VAD and SOR tanks, the TAs evicted the encroachers. Moreover, the TAs in Pondicherry, with assistance from NGOs and the support of the Government, undertook the eviction of encroachments under the TRPP. Many legal procedures were evoked that, for various reasons, were dormant. Other activities included invoking the electricity department to fine the borewell owners who supplied water for irrigating the land in the tank, utilizing the police force during the eviction process and using heavy ground tillers to break up the land that had been cultivated in the tank. The eviction of encroachers from the irrigation tank has created rifts and conflicts within the village, but the executive committees of the TAs think that time will heal them.

84In Koratur, a village in Villupuram district in Tamil Nadu, a WUA was formed in 2004. In 2006, the association evicted the encroachers who had been encroaching on 100 acres of land in the tank. The members of the WUA claim that this was the first initiative of this kind in the whole of their district. Moreover, one caste group in that village constitutes the majority of members in the governing body of the WUA. They also claim that this was made possible because higher officials in the district belonged to their caste.

85From the above two cases it is evident that the associations take responsibility for evicting the encroachers from irrigation tanks. They hope these initiatives will set a good precedent for the other tanks in the State. It is well understood from the office bearers of these associations that the eviction of encroachers is not a simple task. Notwithstanding the sporadic cases of eviction of encroachments, the larger story pertaining to this issue is the prevalent practice of cultivation in the irrigation tanks, and many systems, be they social, judicial or administrative, all bear witness to this illegal practice.

86According to Mienzen-Dick and Pradhan, the coexistence and the interaction of multiple legal orders in a social setting or domain of social life is called legal pluralism (Mienzen-Dick and Pradhan 2002). From the discourses and discussions on the practice of cultivation in the irrigation tanks, it appears that there are illegal activities of many kinds that make up the practice of encroachment on water tanks, which is against the statutory law. It must be noted that from the point of view of the actors, the rules and regulations are violated from a moral perspective as well. Therefore, why not speak of ‘illegal pluralism’? And where to go from there?

NOTE: First of all, I want to thank those in the villages of TRM, SOR, VAD and PPR who shared their views and ideas with me. I thank Oliva Aubriot for meticulously reviewing and enhancing this article and Laurent Pordié for providing valuable suggestions for improvement. I would also like to thank Christoph Eberhard for encouraging me with ideas regarding the framework of this article.

Bibliographie

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Annexes

Glossary

VAD

Vadanur

PSP

Purana Singh Palayam

SOR

Sorapet

TRM

Thirumangalam

PRP

Perichampackam

PWD

Public Works Department

WUA

Water Users Association

TA

Tank Association

TRPP

Tank Rehabilitation
Project of Pondicherry

VAO

Village Administrative
Officer

EU

European Union

Notes

1 Among the few existing publications one can note E. R. Leach (1961: 234-6), who deals with the encroached Crown land in Ceylon and how these ‘illegal’ fields, which the administration allowed to be cultivated during the war, were considered as ‘encroachment’ once the war was over. Rita Brara (2006: 110-49) also discusses how village common pastures were made and re-made at the intersections of individual, legal and social representations, by investigating the operations of a land settlement at one particular site in the province of Rajasthan. She draws attention to the perspectival meanings of encroachment upon village commons and the competition of representations and practices that reshape the commons as material and social objects. Studies on land reforms in India (Joshi 1975, Rajapurohit 1984, Reddy 1988, Sinha et al. 2000, Thangaraj 2003) show that much legislation pertaining to land has been passed and describe how this legislation has been enforced by the State and what lacunae still prevail. Moreover, different methods and systems were instituted, such as the permanent settlement or the royatwari system, in which the lands that yielded revenue were settled as private property. Local tanks, woodlots and grazing grounds that did not produce any revenue were not settled (Sengupta 2004). The unsettled categories in Tamil Nadu, South India, were classified as purambokku, meaning the lands that are not privately owned.

2 For the revenue department, the unit is the revenue village. One, two or three revenue villages can be managed by a single village panchayat.

3 Scheduled Caste (SC) is the constitutional category designating the dalits, who are at the lower level of the Hindu caste hierarchy and who are also called harijans or untouchables.

4 The names of all the actors have been changed. All the interviews were translated into English by the author.

5 A position in government service with decision-making authority.

6 The dead storage area is the part of the tank where water is stored below the level of the sluices and thus cannot flow through them.

7 Kani and kuli are local land measures. 100 kuli = 1 kani = 1.3 acres; 1 acre = 4,000 square metres; 1 Kani = 5,250 square metres.

8 Natham purambukku: government land that will be given to people for residential plots.

9 A series of procedures is listed in this manual under various topics such as VAO, revenue inspector, appeals, revision, eviction, classification of encroachment, etc.

10 Under the Tamil Nadu Encroachment Act of 1905, the VAO issues the ‘B memo’ to the revenue inspector pertaining to the type of encroachment and the actions to be taken on the encroachers. This is locally called the 6 Bima notice. In this narrative, I would like to emphasize that the village president is well aware of the legal procedures to evict the encroachers.

Auteur

Chercheur à l’Institut Français de Pondichéry.

© Institut Français de Pondichéry, 2008

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