HAVE YOU EVER EVEN BEEN TO NEPAL?

(Excerpted from Fallen Leaves, an anthology of memoirs by LC Arulpragasam)

In 1962, I joined FAO as the Land Tenure Officer in its Regional Office in Bangkok. Within six months I was told that I would be sacked within a week unless I retracted a certain position that I had taken on land reform in Nepal. This is the story.

The Government of Nepal had passed a tenancy reform law in 1962, based on the advice of the Ford Foundation (USA). The law provided for security of tenure along with reduced rents for tenants of agricultural land. Its provisions were roughly in the following terms. Whoever is a tenant of an agricultural land on a specified date (x) will have permanent rights of tenancy. Such a tenant cannot be evicted as long as he pays the landlord a rent of 25 per cent of the crop each year. This was as opposed to the 50 per cent of the crop that was habitually being charged by landlords in Nepal at that time. The law was praised in international circles as a brilliant piece of legislation, because it was short and simple, making any legal challenge difficult.

The legislation was sent to me for comments by my boss, Dr. Erich Jacoby, Chief of the Land Tenure Branch of FAO, Rome. I wrote back to say that while the law was short and direct, there was an implicit problem in its very first words, which said: ‘whoever is a tenant of an agricultural land on date x…’ The law did not specify how it would be decided, whether there was a tenant on the land, and how he would be identified. In practice, every landlord would say that there was no tenant on his/her land – and hence there would be no tenants to benefit from this ‘excellent’ law.

One could theoretically fall back on the land records to ascertain who was a tenant on any particular date. But it was known that Nepal did not have such land records – least of all, a record of tenancy. Some identification of each parcel of land, its extent, its ownership and tenancy would be needed for implementing such reforms – and this was completely lacking in Nepal at that time. This is in contrast to the comprehensive system of land records in British India, which provided the basis of its land tax system, whereby all lands were surveyed and registered, showing the names of all owners and their tenants, if any.

There was an even more serious problem. My experience in Sri Lanka showed that landlords would evict their tenants, claiming that they cultivated the land themselves. Or through daily-paid workers, leaving no tenants to benefit from the new law. In a semi-feudal country like Nepal at that time, it was very likely that the tenants would be intimidated by their landlords, through threat of eviction, cut-off of credit or even violence, to make them surrender their rights as tenants. Not being able to defy their landlords, they would even abjectly agree to remain as ‘hidden tenants’ with no rights under the law. In exchange, they would be allowed to continue to cultivate the land, at whatever rent the landlord decreed, and subject to eviction at any time.

Everything would depend on the mechanics by which the tenant of any land was to be identified and recorded, prior to the enforcement of the law. The law, however, by ignoring this fundamental problem, left the tenants worse off than before, subject to immediate eviction by landlords who wished to evade the new law. I had only given my above opinion to my boss, because he had asked for it. I did not know at that time that it would cause an international incident!

About one month later, FAO was informed by the UN Bureau of Public Administration, which was executing the project, that the identification and registration of tenancy rights was to be done by a cadastral surveyor, who would survey and register all agricultural lands. This left the difficult task of recording tenancy rights to a lowly surveyor (called an amin in Nepal), who was paid only the equivalent of US $1 per month at that time, thus making him utterly susceptible to bribery and intimidation. With these probable outcomes in mind, I wrote to my boss, who had again requested my opinion, that the process of registration of tenants proposed by the UN was likely to result in the cadastral surveyor merely recording that there were no tenants on the land (because the landlords had brought pressure on them) leaving no tenants to benefit from the reforms!

Little did we anticipate the reaction of the United Nations Office. First we received a reply from the Director of the UN Bureau of Public Administration, Mr. Coates, stating that such recording of ownership and tenancy rights had been done all the time by cadastral surveyors in India. He claimed that he himself, as an ex-member of the Indian Civil Service (ICS), had on many occasions adjudicated such ownership and tenancy rights based on the cadastral surveyor’s findings ‘under the peepul tree’.

When my boss persisted with my opinion, the UN Headquarters in New York complained directly to the Director-General of FAO that FAO was obstructing their programme on unfounded and uninformed grounds. This was followed also by an official complaint to the Director-General of FAO by the Nepalese Government alleging the same. Unfortunately, the Director-General of FAO, Mr. B.R. Sen had himself been an ex-member of the hallowed Indian Civil Service. He dismissed FAO’s stand as uninformed, stating that he himself had decided such ownership disputes on the basis of cadastral surveys on so many occasions ‘under the peepul tree’! Learning that I was the culprit, he ordered that I go immediately to Nepal and officially apologize and retract FAO’s position. If I did not do this within one week, my employment was to be terminated! At this juncture my boss, the Assistant Director-General in charge of the FAO Regional Office tried to protect me. But when he heard the full story, he was utterly dismayed. Although he was a Pakistani, he too had been a former member of the ICS: how many times, had he too decided such cases, based on a cadastral survey, ‘under the peepul tree’, with no difficulty (that I had predicted) at all!

By this time I did not know which I hated more, the Indian Civil Service or the peepul tree! All the top administrators in the UN system at that time seemed to be British or Indian retirees from the prestigious Indian Civil Service (ICS). So I was beginning to see this as a dispute between the ex-officials of the ICS and myself, from the Ceylon Civil Service (CCS). I still felt that I was right and that they (including my top boss in FAO, the Director-General himself) were wrong.

First, although they knew cadastral survey and land administration, this was not the issue. For the issue was whether the process that they advocated could actually identify and register a tenant under the shadow of land reform. They had actually never done this! Second, whereas they had all decided on ownership and thought that they had decided on tenancy, their inquiries had only been to identify the owners of the land for tax purposes, while completely depending on the landlords to supply the name of the tenant for the full land record.

Nepali farmers

Whereas the landlords had previously willingly provided the names of their tenants to the Indian Civil Servants, the same landlords now wished to deny that they were any tenants on their land at all! Thus the question was whether the procedures used in India for deciding on ownership for tax purposes would be adequate for deciding on tenancy for land reform purposes! Thirdly, although these top ex-ICS officers had years of experience in land administration, they had no experience of land reform.

Thus their long experience in deciding quite a different issue, in quite a different era, in quite a different social and legal dynamic, was now the biggest obstacle to their understanding the different nature of the problem and of finding a suitable solution. In the end, they turned it into a personal problem. For whereas they had all been to Nepal, it was known that I had not! It got even worse when they saw me, for I looked even younger than my 32 years at that time!

Although I was convinced that I was right, I now had no option but to go – as instructed – to Nepal to eat humble pie and retract my position. I was snubbed by the UNDP Representative in Delhi – and it got worse when I reached Nepal. The Permanent Secretary of the Ministry of Planning refused to see me. I was sent down to the Joint Secretary who was unnecessarily brusque. Although I had decided to capitulate and eat my piece of humble pie, I had to make a pretence of looking into the matter. So I asked to visit a village where the cadastral survey and land registration had already taken place according to the procedures prescribed by the UN. The Joint Secretary asked me where I wished to go. Not knowing anything about Nepal, I jabbed wildly at the map. He remarked drily that I was pointing to the Himalayas, but he could get me as far as Pokhara in the foothills, but that I would have to walk from there!

So I set out early next morning to Pokhara by plane, which in those days landed in a grass field. Accompanied by a senior surveyor who was to be my interpreter and guide, we walked for a full day to get to the village that I had fortuitously chosen. It was a thrilling experience, walking in the silence of the mountains with the snow-clad Himalayan peaks towering above me. In one place, I also had the thunder of water from a subterranean river shaking the ground beneath me. I reached the selected village by nightfall. When I examined the cadastral map and land record prepared by the cadastral surveyor, it showed that all the lands were cultivated by their owners, either as owner-cultivators or through daily-paid workers supervised by them. Since the record showed no tenants, there would be no beneficiaries of the land reform in this village.

The next morning at daybreak, I positioned myself on the path to the fields, so that I could meet the farmers going to and from their fields. I tackled one in about every four farmers, asking more or less the same question: ‘Are you a tenant?’ Every one of them answered that he was either an owner cultivator or a daily-paid worker, although most seemed to be too poor to be owners of their own land. I repeated the process at eventide, when the farmers returned from their fields, but I always received the same reply. I spent the whole of the next day asking the same question and getting the same answer. In desperation, I requested a meeting of all farmers on my last evening in the hope that group dynamics might reveal a glimpse of the true picture. But even at this meeting, I received the same response.

At this point, the only well-dressed man spoke up, saying: ‘Sir, because of your perseverance and hard work, I need to speak out, since none of the others here can afford to do so. These poor men here have been lying to you for the past two days: they are all tenants. They have been informed in advance of your arrival and have been instructed by their landlords to say that they are not tenants. In fact, they have been threatened with eviction and violence – and two of them, even with death’. At these words, there was a babble of voices, all wanting to speak. They burst out that they were indeed tenants, but had been threatened with eviction by their landlords if they claimed the same. I invited each one to speak – and each one said the same thing.

I then took out the already completed cadastral map and went over it with them. I asked the entire group whether there was a tenant on each lot of land, going over all the lots in turn. They unanimously answered: ’Yes, so-and-so is the tenant’ in respect of each lot, with 100 per cent agreement. After recording the name of the tenant and of the owner against each piece of land, I had a new land record made, which was confirmed by the entire village. And it was the exact opposite of that recorded by the cadastral surveyor, following the procedures prescribed by the UN!

Whereas the latter showed that there were no tenants on any of these lands, my records showed that there was 100 per cent tenancy on all lands in this particular village. This meant that if the land reform had proceeded on the basis of the cadastral records prepared by the Government and championed by my own FAO Director-General, there would not have been any tenants to protect and thus no beneficiaries under the land reform law!

Having got the new land record confirmed by the senior surveyor, I then had to walk an extra day to get the endorsement of the Zonal Commissioner. On the next day, in Kathmandu, I had to report my findings to the Joint Secretary, who had also invited Dr. Lindsay, the author of the land reform legislation, to the meeting. They were astounded to find that their system of identifying tenants had provided 100 per cent wrong information. Instead of retracting my position and apologizing to the Government and the UN, I was now able to prove that I had been right all along, even though I had never been to Nepal before!

I also became a favourite of the Ministry at that time. The Minister himself would come to the airport to meet me on each of my subsequent visits. The Government requested me to formulate an FAO project for assistance to its land reform programme. I introduced a new system for the identification of tenants based on the participation of both the tenants and owners through public village meetings – which was adopted by the Government in the 1960s. This episode proved to be a personal and professional triumph for me in the early days, since I had proved even the Director-General of FAO and his Assistant-Director-General for the Asian Region, as well as the UNDP, the UN Bureau of Public Administration, the Ford Foundation and the Government of Nepal, all to be wrong! I was only 32 years old at that time – and had never been to Nepal when I first gave my opinion on the issue.