Vizokhole Ltu
Senior Research Associate (NESRC)
It is not our custom to block roadways and waterways from passing our land and the later settlers who are now demanding compensation had encroached upon the portions of land already given to the government, hence there is no question of paying compensation to the encroachers of reserved land (‘CGBU appeals not to disturb four-lane road construction’, Eastern Mirror, June 01, 2019).
The above statement is an excerpt from the statement of a Gaonbura under Chakhroma Gaonbura Union (CGBU). This statement was in regard with the ongoing issue of land acquisition for the construction of four-lane highway project (NH-29), particularly with landowners between Purana Bazaar to Chumoukedima. The CGBU appealed landowners not to disrupt the four-lane road construction. In their defense, the CGBU claimed that “the present Highway falls within the Chakhroma traditional land and when the highway was built, no compensation whatsoever was demanded but given freely for development of our land” (Ibid). Moreover, they added, provisions of 75ft on both sides from the middle of the highway was also kept reserved for future developments, but with increase of settlers in the area people had started encroaching the highway who are now asking for compensation claiming to be landowners.
On the other hand, in September 2019, a conglomeration of individuals who formed the NH-29 Landowners Union (LOU), had petitioned the court claiming compensation from the Nagaland government for land acquired for the expansion of the erstwhile 2-lane road from km 110 to km 122 of NH 29. The LOU(Purana bazaar to Chumoukedima) has been protesting, demanding fair compensation for their land acquired for the NH-29 project. The union alleged that the State government has been trying to enforce the Right of Way (ROW) without properly informing or compensating the landowners. LOU clarified that it was concerned only with the landowners’ right to compensation, as was being applied across Nagaland (‘Concerned only with landowners’ right to compensation, says LOU’, Nagaland Post, June 4, 2019). The LOU president K Vishepu Assumi and general secretary Vichosel Rhutso asserted that landowners did not encroach government land, but rather the government was encroaching individuals’ land in the name of ROW. Landowners accused the authorities of attempting to implement ROW without any consultation with the affected landowners.
The response to this resistance, as narrated by landowners and authorities during fieldwork, was forced acquisition by the authorities and implementing agencies. While landowners see it as injustice and violation of their constitutional rights, authorities on the other hand, see it as hindrance to development and manipulation of the constitutional rights. The same constitutional provision granted under Article 371A. In issues like this, problems such as forced displacement, inadequate compensation, environmental concerns, lack of transparency, among others, arise. How do we then balance these discrepancies to ensure inclusive development? Can customary practices of the Nagas co-exist with the statutory laws or cater to ever-changing new technological advancement and development model?
In legal term, ROW on land refer to legal permission allowing individuals to access or utilize a portion of another’s land for specified uses. Similarly, communities in Nagaland have a customary practice where individual/s can access or utilize a portion of another’s property, especially for pathways and waterways. It is a reciprocal practice where individuals utilize a portion of other’s property for construction of footpath in the village, pathways to field and forest, water canal for terrace cultivation, or for connecting with the neighbouring villages and towns. While there might be occasional conflict or tension between landowners and the concerned party who utilize the land, there is a collective consensus that this practice is necessary, and objection to it is considered even a taboo. In rare cases, individual could choose to obstruct such practice, but this often comes at the cost of facing social ostracism and scorn from the community. In fact, there are instances where individuals who previously hindered such customary practice were later blamed for unfortunate events, with some attributing these occurrences to bad omens or supernatural consequences. Many would believe their actions invoked bad omens.
The acquisition of a privilege of a passage over a piece of land can occur through multiple paths, reflecting the complexity of property rights and the range of stakeholders involved. In the contemporary context, especially in villages, an individual cultivating new sites/plots of land is often the apparent reason when individual/s require a pathway. Or when a community’s need justifies it, the village authority may invoke customary practices to secure land for construction of road such as agri-link road. In the case of towns and cities, a voluntary sale or negotiation is often the most straightforward path, where the landowners willingly initiate, negotiate, or consent to give the right of way. At the same time, when a public need demands it, the government may invoke eminent domain to secure land for developmental projects. This it is slightly different in the case of Nagaland, where local authorities are empowered through customary practices under Article 371A.
The necessity to comprehend and navigate laws and concerning passage is further emphasized by the changing landscape of national infrastructure projects. For instance, the development and expansion of national highways involve complex considerations and requirements that cannot be addressed through the same methods and practices used for constructing traditional local pathways. To be more specific, take for instance, the expansion of the two-lane NH-29 into four-lane highway. In this regard, the exercise of the ROW by local authorities and state government necessitates careful consideration of key factors, including the increased land width requirements and fair compensation prices before exercising the right of way. Meaningful stakeholder consultations are crucial in this process. Furthermore, it is the responsibility of local administrators such as Dobashis, Gaonburas, members of Village Councils and Village Development Boards, or even the influential civil bodies to keep citizens informed about and updated on relevant practices, laws and regulations. Subsequently, alignment of land, survey play a pivotal role in defining property lines and dimensions. This stage is crucial not only for establishing legal boundaries but also for preventing disputes and ensuring all parties are aware of their entitlements and limitations.
At the same time, an entitlement of passage is fundamental to property law. The entitlement of passage with community accessibility is noteworthy, which advocate for inclusive infrastructure, ensuring people of all abilities can navigate their environments, emphasizing the societal impact of such legal or customary constructs. Understanding the entitlement of passage is crucial for landowners, who are directly responsible for impacting land control, community access, and legal status. Hence, it is essential for all stakeholders to stay constantly updated to effectively navigate the intricacies of land issues. To illustrate this further, let us go back to the issue of invoking ROW in in the case of Chumoukedima for land acquisition. The particular case raises important questions: Were the landowners cognizant of the prevailing traditional and customary practices in the specific area, yet proceeded to encroach upon government land, as claimed by the CGBU? Did the concerned CGBU or village councils informed the ‘new settlers’ about specific rules and practices such the ‘no compensation for highway construction’, ‘no customs to block roadways or waterways’ or ‘provisions of 75ft on both sides from the middle of the highway’ when they first came to settle in the area? Did the local authorities and state government attempted to invoke the ROW without proper consultation with the landowners, as claimed by the concerned landowners?
These questions are pertinent because places like Chumoukedima is witnessing a burgeoning of diverse communities due to the proliferation of urbanisation. And based on the fieldwork, all transaction of land within Chumoukedima district is done under the knowledge of the village council and Gaonburas, as either the sellers or the buyers had to obtain No Objection Certificate (NOC) from the local authority of the village or towns. In fact, the village councils of some villages such as Diezephe and Diphupar have the authority to issue a NOC to landowners, which is recognised by the State government under Art-371A. Likewise, many villages are now coming up with their own specific Land Patta, detailing specific terms and conditions for land transaction within their jurisdiction. Here it is also important to note that the contemporary situation demand deeds (Land Patta)to legitimize landholding for multiple reasons such as boundary demarcation, to apply for loans or government schemes, and transaction, etc. This is in contrast with the traditional method of legitimation or transaction through orality, which is still practiced in many villages in Nagaland.
Customs and traditions are often perceived as being ‘timeless’, static, and unchanging. However, this perspective neglects the inherent dynamism of cultural practices. In reality, customs and traditions must evolve to remain relevant and meaningful in the face of changing social, technological, and global contexts. Do not get me wrong here. We do need to defend our customary practices for inclusive and just development and definitely not for regressive politics and development. And this evolution is not a unilateral process, but rather a collective responsibility that requires consensus among community members. It involves a delicate balance between preserving the essence of traditional practices and adapting to the demands of a rapidly changing world which requires continuous discussion, reflection and adaptation. Besides, sensitization efforts have to be amplified beyond official channels. This can be achieved through open and inclusive dialogue by leveraging various platforms, including intimate settings like kitchen discussions and small gatherings, as well as larger social gatherings and public events. The discussions among diverse stakeholders have become increasingly crucial in contemporary context as the influx of development projects will undoubtedly lead to increased demands on land, resources, and infrastructure.
