S NATCHING THE COMMON REVENUE AND F AILING COLLECTIVE ACTION Just like the water use, other tank uses and usufructs are also controlled by the Just like the water use, other tank uses and usufructs are also controlled by the

Revenue Department. Tanks are in need of constant maintenance and upkeep.

Major rehabilitation works may not be needed every year, nevertheless cleaning up of channels, removing bushes and shrubs on the bund and channels, cleaning and levelling field channels are routine activities that have to be done every season. The funds required for doing these routine functions historically came from these valuable usufructs. The proceeds realized from the trees, fishery, silt and sand were the source of funds for the ryots collectively to do this job.

Since, ryotwari system has made tanks as government ‘belonging’, the revenue from these usufructs also belonged to it. It is true that the government continued to allow some of the customary enjoyment of usufructs in certain places which is subjected to kist (tax). The custom is always subject to proof whenever there is a dispute. Customs related to the use of fishery revenue is sometimes recorded in the A-registers of villages, and the holders of such right need to pay a tax for enjoying the same.

If no custom is codified, the fishery has to be auctioned and added to the government revenue⁶⁶. In some cases, such revenues are meant for the temples who in turn would lease it to specific groups or caste groups involved in fishing.

66 The BSO notifies, “The village, tank, and channel fisheries of each district should be rented out annually. The revenue shall be credited to Local Accounts” (Board of Revenue, Madras Presidency 1866, 341 order no.345 dated 27 Novmeber 1850). The legal position remains the same even today. Presently the Panchayats

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In the vast majority of tanks the revenue from trees and fishery reached the government as an additional source of revenue⁶⁷. Customs have to be noted in the A-Register or Settlement register to be protected from government capturing it. After the Panchayat law of 1994, the incomes from the proceeds of fishery and trees are transferred to Panchayats. The Revenue Department is authorized to auction the proceeds and the proceeds of sale are sent by the Department to Panchayats through an accounting process⁶⁸. Therefore, the Revenue Department still holds the key to decide about this matter.

So the arrangements for the usufructuary revenue presupposed a radically different type of communal agrarian relations that contradicts property rights as established under the BSO. The government and private paradigms visualized under the BSO and many other laws that followed them did not help the tanks in anyway rather they were detrimental to tanks.

As of today (2013), the fishery has to be auctioned in public⁶⁹ by the Revenue Department. Trees on tank bunds⁷⁰ held by individuals have to pay a usufructuary were given such revenues instead of the Revenue Department. However,

collecting such revenue still rests with the same Revenue Department. It may be said that it is a notional transfer happening across the departments.

67 Similar system of collecting fishery revenue in some forms prevailed in zamindari settled areas as well. zamindari is technically a different contract wherein the intermediary is responsible for fixing up the rent for land with ultimate cultivator. The government claimed the incomes from the tank and channel fishery are not part of a zamindari contract and hence will be taxed under income tax. Normally, the agricultural income from lands is not taxed both in zamindari and ryotwari. It appears the government wanted all that common revenue from the tanks even in the zamindari settlements (Commissioner of Income Tax v Sevuga Pandiya Thevar, [1932] 63 MLJ 634 cited in (Iyengar 1933, 67)).

68 s132 of Tamil Nadu Panchayats Act 1994 and the rules there under prescribes the procedures for auction of fishery and other such revenues. They were the same in the previous two Panchayats Acts of 1921 and 1958.

69 BSO-211 Fisheries

70 BSO18.2.b.Scattered trees and topes

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charge as fixed by the Revenue Department. The planters of such trees can only avail themselves of the withered and wind-fallen twigs, shadow of the trees and not the tree as a whole. In the event of the tree falling down the Revenue Department auctions it and takes the revenue. Apart from this, in hundreds of tanks, the right of tree planting has been given to the Forest Department under Social Forestry Schemes. Though there exists no consolidated data for the state of Tamil Nadu, one list in Madurai district alone claimed that there are some 620 tanks under their plantations and control⁷¹. The ryots cannot plant any trees individually or collectively and avail themselves of the usufructs anymore. Finally, the BSO allows the community to enjoy the tank beds for cultural uses and grazing their animals⁷² free of charge⁷³. In summary, all revenues from the tanks were taken by the government and even if the ryots collectively wanted to plant trees, and cultivate fishery there is no room left in law. This is one major reason why farmers have rejected the role of maintenance of tanks altogether.

Relationship between tank maintenance and usufructs

The BSO was made with the simple understanding that all the revenue acquired from a government property must reach the government. The historic obligations of tank maintenance were met with such common revenues from tanks and were taken away by the BSO. On the other hand the government wanted customary labour to attend to the tank repairs under the Madras Compulsory Labor Act 1858. Many scholars including historians (Baker 1984), irrigation specialists

71 An undated list of tanks under social forestry plantations held by Forest Department in the former Madurai district (presently Madurai, Dindigul and Theni) reveals 620 tanks are in their control. Some tanks are shown as taken over in the year 1962, and many in the later years. Field visits to six tanks from this list confirm that these tanks are still held by the Forest Department even though there are no plantations at this time.

72 BSO 86.8. Communal rights in tank beds

73 Even this right is challenged by the Forest Department that claims their plantations would suffer if animals enter. This phenomenon is observed in the Tanks studied during the field work.

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(Maloney and Raju 1994), and anthropologist (Mosse 2003, 242–264), studied the linkage between the failure of irrigation laws, decline of tanks, and the participation of the locals in maintaining the tanks. Baker suggests the Irrigation Bills aiming to improve irrigation in general including maintenance of tanks were prevented by the zamindari lobbies resulting in stagnation or decline in irrigation (Baker 1984, 475). Mosse believes the colonial government did not “take over and undermine an institution (kudimaramat) belonging to the people (1999, 310)”

rather it is ‘invented’ by them to coerce the people to maintain the tank.

However, their reasoning about the failure of maintenance missed a simple logic that why farmers should do their part of collective work (or compulsory work) when collective and common revenues such as the fishery, tree plantations, earth, sand and silt were taken away using the BSO.

C.P.Ramasamy Iyer, an administrator, a proponent of home rule and Panchayats in colonial times observed thus,

Village Institutions which were formerly supported by common funds and labour are now decaying, and such things as the clearing up of rivers from silt, the construction of the new tanks and wells, defraying the up keep of schools and religious festivals at the common cost, are getting rare and rarer. (Iyer 1917, 27).

The statement made nearly a century ago remains valid even today because the source of common funds still belongs to the government. To date the same law and policy continues and the interests of the government and the ryots are in continuous conflict in these laws. I believe, as long as this conflict (i-e, revenue for the government and responsibility for the ryot) exists in the law, all efforts to bring farmers and their organizations to take care of tanks may never happen. If the kudimaramat law of 1858 failed in bringing the community participation in tank works, the same fate awaits the recent arrivals such as the TNFMIS Act 2005 and the Panchayats Act 1994⁷⁴.

74 The revised manual of Panchayats still carries the same procedures established originally to execute kudimaramat works by the villagers using Panchayats Act

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There are several case laws that show the conflicts between the government and the village collectives or organizations over securing the last fishery revenues. As recently as in 2002, the Madras High Court came to the rescue of a collective body of 43 karaiswans (a specific type of right holders or pattadars) holding revenues from a tank in the temple town of Srivilliputtur that was taken away by the Revenue Department. The Court interestingly held that such a unilateral declaration taking away the collective incomes shall not be allowed unless a corresponding declaration to match usage of income for the common good. In this case, the holders are using it for a collective purpose of running a school⁷⁵. Non-Government Organizations involved in tank development and establishing farmers management in tanks want at least the Panchayat laws to allow collective organizations of farmers like the Tank Farmers Associations (TFAs) be given some rights to generate incomes from the tank usufructs such as fishery, tree and silt and sand mining. The government has not relented even after successful experiments are shown as models⁷⁶. The field studies show the village collectives bribe the revenue authorities and Panchayat officials to conduct a mock tendering process as required in the BSO. The representatives sent by village collective for such pseudo-auctions do a real auction later in their village grounds in a transparent manner. Real traders or fishermen participate in such re-auctioning fetching substantial revenues to the village organizations. The proceeds are used 1994, s 133(2). The power to enforce kudimaramat thus has arrived to the village Panchayats (Palanithurai et al. 2007, First:241–242).

75 Alagar Iyengar v State of Tamil Nadu, (2002)4 LW 498, In the Madras High Court. The judgement also reveals that the government tried several times to snatch the revenue in the last 100 years and the holders have successfully fought in courts to establish their case of using tank income for a collective purpose. This town is home to several legal luminaries known across the state and could fight against such orders, but others have had to surrender or adopt other means such as bribing the bureaucracy.

76 DHAN Foundation. Policy Brief 9. “Resource Mobilisation for Rehabilitation of Tanks with People’s Involvement.” Available at http://dhan.org/cpp/pdf/

policybrief9.pdf [Accessed 15 March 2013].

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for tank maintenance, tank rehabilitation and for many other village collective works. If many tanks are well maintained this is one of the reason where the law is violated wilfully by the ryots in a collective manner⁷⁷. It is once again obvious that the roots of the conflict lie in the law which was based on the ideas of mobilizing greater land revenues from the land and water for the East India Company’s government.

The failings of tank maintenance by communities are an area of study that the scholars have debated extensively. Their suggestions cover the need for a law to enable them, training the local bodies and associations, hand holding such associations to use government projects, facilitating local participation and so on.

However, taking away the common revenues from the tanks using the BSO resulted in such failures. Therefore, rather than blaming solely on the breakdown of the Community Institutions, the problems of taking away finances from the tanks need to be understood.

5.6 C

Even though the ryotwari settlement was based on the premise that the ryot came before the crown and his land cannot be taken away using the Crown power, it was not the complete statement. The economic policy of the government which was based on establishing unending revenue stream from the land resulted in the complex web of ‘government water’ and ‘private water’

paradigm and forms the basis for the present water law. In both the paradigms, the land revenue policy was interested to maximize the government revenue at every instance of water use, and from other uses of tanks. I have dissected here

77 According to the Secretary of the Tank Farmers Association of Kottaiyendhal tank, an amount of Rs 200,000 was mobilised by cutting juliflora jungles from the tank bed. The money was used for tank rehabilitation. Part of the tank bed was managed by the Forest Department, though there were no plantations. Rs 50,000 was collected from the departmental contractor to allow him to cut the trees.

According to the Secretary, the contractor was allowed proceed with cutting only after he made the payment to the association. [Information is based on the interview and FGD held in the village on 12 February 2012.]

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to establish the role of bureaucracy in making the laws like the BSO and keeping such a control over the tanks for long. Such bureaucratic methods are consistently followed even after the transfer of power. Though historians continue to suggest about the continuity of pre-colonial aspects of the Indian society the analysis of BSO in this chapter shows that this is a definite break from the past.

As Ramsay Macdonald summarized in his Awakening India, “We came to the village. We did not understand its spiritual or its economic basis…We surveyed lands and laid down definite boundaries; we created individual landlords; we established regular courts, which applied to India the property laws of the West (MacDonald 1910, 220)”. Such an observation is valid as far as the BSO are concerned. The law as given by the colonial rule (and preserved thereafter), especially the revenue laws under the BSO, continue to disallow and deny any role for tank farmers or their collective bodies in any form. The control is firmly exercised by the bureaucracy of the Revenue Department using the fine print of the administrative laws in curtailing the various aspects of enabling laws such as Panchayats and the Water Management Laws. If any improvement or changes to enable Panchayats has to happen, the foundations laid in the BSO has to be first shaken and the bureaucratic control on water and tanks have to be removed.

When the bureaucracy exercises such a strong hold on the tanks and users, the courts were called in support of upholding the long held rights of tank users. The laws made by the courts are examined in the next chapter.

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