At present, there are few effective sanctions to prevent the encroachment on commons by non-poor groups. Existing penalties under the OPLE are too low and are rarely enforced. Computerisation of the encroachment register at tehsil level will make possible the ready detection of habitual encroachers. Increasing the penalty according to the frequency of repeat encroachments may also act as some disincentive, although only over the medium-term rather than the short-term, and not so long as incentives towards rent-seeking remain strong for low-level revenue department officials.

The inefficiencies and distorted incentive structure that prevail in land revenue administration are only likely to be checked with greater awareness and voice on the part of local communities. In order for local groups to be able to press their legal claims, they first need to know what their rights are. A combination of awareness-raising and local organisational capacity-building, efforts to expand the effective powers and accountability of the panchayati raj institutions, increased vigilance of superior officers in the revenue administration, and an informed public opinion (e.g. through readily accessible manuals in local languages) are required in order to protect and promote access to remaining common land by the rural poor.

# 4.4 **Land tenancy**

The abolition of tenancy in order to vest land ownership with the actual tillers of the land formed the corner-stone of most land reform efforts in India after Independence in 1947. It was predicated on the widely (and then largely correctly) held belief that the tillers of the land were locked in exploitative relationships with intermediaries who had little interest in the land but for the extraction of rent. The Orissa Estates Abolition (OEA) Act, 1952 initially permitted landowners to resume 33 standard acres for personal cultivation (section 2.3), which led to the large-scale eviction of tenants. No parallel legislation was introduced to protect tenants. Under the Orissa Land Reforms (OLR) Act, 1960 (as amended in 1972), the leasing of land was explicitly banned, except where lessees fell into certain excluded categories<sup>36</sup> . Under the 'adverse possession' clause in the OLR Act, if it can be demonstrated that a tenant has cultivated a parcel of land continuously for 12 years, permanent occupancy rights to that land may legally pass to the tenant. But the institution of tenancy has proved to be highly resilient on the ground, for reasons outlined below, and attempts to regulate tenancy by legislative means have been counterproductive. It is as widespread in Orissa as it is illegal, though now less exploitative and better concealed from official records.

A substantial literature now corrects many long-standing perceptions that share tenancy is necessarily inefficient or that landlord-tenant relations are necessarily exploitative (Otsuka and Hayami 1988, Singh 1990). Share tenancy represents a second-best response to missing, thin and imperfect markets for land, credit, labour, management, information, and insurance, and performs some very important functions which would otherwise have to fulfilled by other institutions; it is neither necessarily inefficient nor a barrier to the adoption of new technology; tenancy contracts often play an important role in matching land, labour and capital endowments. They are not necessarily exploitative, but 36 Except by landlords with a disability or the 'privileged raiyats'. A person under disability refers to: (i) a widow or unmarried woman, or a woman divorced or separated from her husband by a decree or order of court; (ii) a minor or a person of unsound mind; and (iii) a person incapable, because of some other physical or mental disability, of cultivating personally the land he held as a raiyat. Privileged raiyats include (i) trusts holding land for public purposes; (ii) charitable and educational institutions engaged in work for public benefit; and (iii) religious or other institutions by which the public benefit.

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