Restrictions on Alienation of Land by Scheduled Tribes under The West Bengal Land Reform Act 1955

INTRODUCTION

The tribal economy was simple but with the gradual contact with the non-tribals they started taking loans. The wiles of money-lenders and traders exploited their innocence. Honest, truthful and hard working tribals become prey for the greed and exploitation by non-tribals. They charged maximum rate of interest etc. for fringe money or gains or goods lent to them. Tribes had to repay disproportionately in three or four-fold in kind. Exorbitant rate of interest was charged and repayment collected in kind, i.e., the produce in three or four-fold. In the “Land Alienation and Restoration in Tribal Communities in India” edited by S. N. Dubey and Ratna Murdia, (Himalaya Publishing House), compilation of articles presented and read out at a Seminar organised by Tata Institute of Social Science in which bureaucrats and social scientists participated. B. Danam, IAS, then Project Officer, ITDA, Khammam, had highlighted in his paper about diverse modes of exploitation by moneylenders of the tribals in Andhra Pradesh. They were : short-term loan at an exorbitant rate of interest (Kandagutha), the repayment of which was made in kind, i.e., harvest produced from a particular extent of land; the medium-term loan on the security of the immovable property, repayable with compound interest at yearly or half-yearly rests. Third mode was lease of land against a loan for a fixed number of years (Tirumanam) during which period the Tribes have to cultivate their land, raise the crop and deliver the entire produce to the money-lender; by usufructuary mortgage, the money-lender remains in possession and enjoys the produce from the land for a fixed number of years or till the principal sum is repaid; by advancing cash and find loans (Namu) and lending commodities like food grains mostly for sustenance during the lean months or for seedlings, on the condition that the same would be repaid in full along with flat rate of interest at the time of harvest and in default payment should be with compound interest; in case of further default, the accumulated arrears get merged with the principal, i.e., by way of compound interest. The other types of money-lending extend to petty loans or selling clothes on credit to the Tribes during the lean months on the condition that it would be paid in full at the time of harvest and in default the money-lender would take over the land by threat of physical force.

The West Bengal Land Reform Act 1955

14A. Provisions of Chapter IIA to override other provisions of this Act.—The provisions of this Chapter shall have effect notwithstanding anything to the contrary contained elsewhere in this Act.

14B. Restrictions on alienation of land by Scheduled Tribes.—Save as provided in section 14C, [any transfer, other than restoration made under section 14E, by a raiyat] belonging to a Scheduled Tribe of his [plot of and] or part thereof shall be void.

14C. Modes of transfer of land by Scheduled Tribes.—(1) A raiyat belonging to a Scheduled Tribe may transfer his [plot of land] or part thereof in any one of the following ways, namely,—

(a) by a complete usufructuary mortgage entered into with a person belonging [to a Scheduled Tribe] for a period not exceeding seven years;

(b) by sale or gift to the Government for a public or charitable purpose;

(c) by simple mortgage to the Government or to a registered cooperative society;

[(cc) by simple mortgage or mortgage by deposit of title deeds in favour of a scheduled bank, a cooperative land mortgage bank or a corporation, owned or controlled by the Central or State Government, or by both, for the development of land or improvement of agricultural production;]

[(d) by gift or will to a person belonging to a Scheduled Tribe;]

[(e) by sale or exchange in favour of any person belonging to a Scheduled Tribe:

Provided that any such raiyat may, with the previous permission, in writing, of the Revenue Officer, transfer by sale his [plot of land] or any part thereof to a person not belonging to any Scheduled Tribe:

Provided further that no such permission shall be granted by the Revenue Officer unless he is satisfied that no purchaser belonging to a Scheduled Tribe is willing to pay the’ fair market price of the [plot of land] or any part thereof and that the proposed sale is intended to be made for one or more of the following purposes, namely,—

(a) for the improvement of any other part of the [plot of land], or

(b) for investment, or

(c) for such other purposes as may be prescribed.]

[(2) xxx ]

(3) A complete usufructuary mortgage referred to in sub-section (1) may be redeemed at any time before the expiry of the term.

(4) A mortgagor under a complete usufructuary mortgage intending to redeem such mortgage before the expiry of its term or any person acting on his behalf, may make an application for redemption in such form and containing such particulars as may be prescribed to the Revenue Officer. On receipt of such application the Revenue Officer shall after service of notice to the mortgagee make an enquiry in the prescribed manner and pass a preliminary order declaring the amount due under such mortgage to the mortgagee at the date of such order and fixing a date for payment of such amount by the mortgagor. If the mortgagor pays such amount by the date so fixed the Revenue Officer shall make a final order directing the mortgagee to restore possession of the mortgaged property and to deliver up the mortgage-deed, to the mortgagor.

(5) A final order made under sub-section (4) shall be executed by the Revenue Officer in such manner as may be prescribed.

Explanation.—In this section “complete usufructuary mortgage” means a transfer by a raiyat of the right of possession in any land for the purpose of securing the payment of money or the return of grain advanced or to be advanced by way of loan upon the condition that the loan, with all interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage.

14D. Transfer in contravention of Chapter HA shall not be valid unless registered.—(1) No transfer of any land or any interest in such land by a raiyatbelonging to a Scheduled Tribe shall be valid unless made by a registered instrument.

(2) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908) or in any other law for the time being in force, no instrument of transfer or dealing with land or interest in such land by a raiyat belonging to the Scheduled Tribe made in contravention of the provisions of this Chapter shall be recognised as valid by any court, officer or authority exercising civil, criminal or revenue jurisdiction and no registering officer shall register any such instrument unless he is satisfied that the instrument does not contravene any of the provisions of this Chapter.

(3) If, in course of registration of any instrument referred to in sub-section (2) or in any proceeding relating to the registration of such instrument or in any proceeding before any civil, criminal or revenue court, any question arises as to whether the raiyat executing such instrument belongs to the Scheduled Tribe or as to whether such instrument has been made in contravention of the provisions of this Chapter, the registering officer or other officer or authority exercising powers under the Registration Act, 1908 (16 of 1908) or the civil, criminal or revenue court before whom such question arises, shall refer such question to the Revenue Officer referred to in section 14C and shall give effect to the decision of the Revenue Officer.]

14E. Power to Revenue Officer to set aside improper transfers by raiyat.—(1) If a transfer of a [plot of land] or any portion thereof is made by a ralyat belonging to a Scheduled Tribe in contravention of the provisions of section 14C, or if the permission for the transfer is found, after an inquiry in the prescribed manner, to have been obtained by misrepresentation or fraud, or if in the case of a complete usufructuary mortgage referred to in clause (a) of sub-section (1) of section 14C, the transferee has continued or is in possession for more than seven years from the date of transfer, the Revenue Officer may, of his own motion or on an application made in that behalf and after giving the transferee an opportunity of being heard, by an order in writing annul the transfer where necessary and eject the transferee from such [plot of land] or part thereof :

Provided that the transferee whom it is proposed to eject has not been in continuous possession for [thirty years] under the transfer made in contravention of section 14C, or in the case of a complete usufructuary mortgage referred to in clause (a) of sub-section (1) of section 14C, for [thirty years] from the expiry of the[period of seven years, notwithstanding anything contained in the Limitation Act, 1963 (Act 36 of 1963)].

(2) When the Revenue Officer has passed any order under sub-section

(1), he shall restore the transferred [plot of land] or part thereof to [the transferor or his successor-in-interest, in such manner as may be prescribed.]

[Explanation.—For the purpose of this sub-section, the word “restoration” shall mean restoration of the plot of land or part thereof which has been transferred by araiyat belonging,to a Scheduled Tribe and include an equivalent quantum of plot of land or part thereof of the same character within the near vicinity of the transferred plot of land or part thereof.]

[(3) For the purpose of restoration of possession of any land and evicting any person in actual occupation of such land under sub-section (2), any such Revenue Officer may use such force as may be required for evicting the person in actual occupation of such land and may send a written requisition in such form and in such manner as may be prescribed to the officer-in-charge of the local police station having jurisdiction or to any police officer superior in rank to such officer-incharge, and on receipt of such written requisition, the police officer concerned shall render all necessary lawful assistance for enforcing delivery of possession of such land:

Provided that the provisions of this sub-section shall not be ‘applicable to any person not belonging to the Scheduled Tribe, if he has been owning, possessing or cultivating land not exceeding 0.4047 hectare in area in the aggregate and the transfer was made by a member of the Scheduled Tribe owning, possessing or cultivating land measuring 4 hectares or more in area in the aggregate.]

14F. Restriction on the sale of raiyat’s [plot of land] or any portion thereof.-[(1) No decree or order shall be passed by any court for the sale of the [plot of land] or any portion thereof, of a raiyat belonging to a Scheduled Tribe nor shall any such [plot of land] be sold in execution of any decree or order.

(2) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), and the Indian Contract Act, 1872 (9 of 1872), no decree or order relating to any land or interest in such land shall be passed by any court against a raiyat belonging to a Scheduled Tribe on the basis of any consent, agreement or compromise. Any such decree or order passed in contravention of this sub-section shall be void.]

14FF. Benami transaction or instrument to be void.—(1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (4 of 1882) or in any other law for the time being in force, any benami transaction or instrument relating to any land or any interest therein showing the name of any person belonging to a Scheduled Tribe as the ostensible owner shall be void for all purposes.

(2) No Court shall entertain any suit to enforce any right in respect of any such land or interest in such land against a person belonging to a Scheduled Tribe by or on behalf of a person claiming to be the real owner of such land or interest therein.

14G. Power to the Revenue Officer to settle or sell [plot of land] for realization of certificate dues.—(1) When a certificate is filed for the recovery of an arrear of revenue or any other public demand recoverable under the Bengal Public Demands Recovery Act, 1913 (Bengal Act 3 of 1913), in respect of the [plot of land] of a raiyat belonging to a Scheduled Tribe, the Certificate Officer shall, before a proclamation for sale of the [plot of land] is issued in execution of the certificate, refer the case to the Revenue Officer having jurisdiction who may, in his discretion—

(a) eject the defaulting raiyat from his [plot of land] and put another person belonging to a Scheduled Tribe in possession of the [plot of land] for a period not exceeding seven years on payment of the amount due in respect of the certificate by him; or

(b) sell the [plot of land] to a member of a Scheduled Tribe, if available, and, if not available, to any other person at a fair market price to be fixed by the Revenue Officer, not being less than the amount due in respect of the certificate:

Provided that if the homestead of the defaulting raiyat is comprised in the [plot of land], he shall not be ejected from such homestead under clause (a), nor shall such homestead be sold under clause (b).

(2) (I) If the Revenue Officer puts any person in possession of the [plot of land] under clause (a) of sub-section (1) for any period, the amount paid by such person shall, at the end of such period, be deemed to have been satisfied in full, and the Revenue Officer shall then restore the [plot of land] to the defaulting raiyat.

(ii) If the Revenue Officer sells the [plot of land] under clause (b) of sub-section (1), any amount that may remain out of the sale-proceeds after satisfaction of the amount due in respect of the certificate shall be paid to the defaulting raiyat.

14H. Appeal and revision.—An appeal, if presented within thirty days from the date of the order appealed against, shall lie to the Munsif having jurisdiction from any order made under sub-section (4) of section 14C or section 14E or section 14G and his order shall be final:

Provided that an application for revision or modification of the order passed by the Munsif on appeal shall lie to the District Judge if made within sixty days from the date of the order:

Provided further that the provisions of section 5 of the Limitation Act, 1963 (Act 36 of 1963), shall apply to an appeal under this section.

14HH. Setting aside of sale of land of a raiyat belonging to a Scheduled Tribe.—Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), or in any other law for the time being in force, every court exercising appellate or revisional jurisdiction shall, either of its own motion or on an application made in this behalf, set aside the sale of land of a raiyat belonging to a Scheduled Tribe or any portion of such land in execution of a decree in favour of a person not belonging to a Scheduled Tribe, notwithstanding the failure of the party to file any objection before the court which passed the decree or passed any order for execution of the decree.

14I. Bar to suits.—No suit shall lie in any Civil Court to vary or set aside any order passed by the Revenue Officer in any proceeding under this Chapter except on the ground of fraud or want of jurisdiction.

Comment:-

Prohibition of Transfer

Some Regulation prohibits absolutely the transfer of land in scheduled areas of Andhra Pradesh between tribals and non-tribals or non-tribals inter se. In 1971, an amendment was made to exempt hypothecation of lands by tribes to the Co-operative Land Mortgage Banks and other financial institutions approved by the Government, subject to certain conditions. In Assam, the Assam Land and Revenue Regulation Act, 1964 was enacted. In Himachal Pradesh, the H.P. Transfer of Land (Regulation) Act, 1968 was made. In Karnataka, the Bombay Tenancy and Agricultural Lands Act, 1948 was made applicable in Bombay region of the Karnataka Stale. The Mysore Land Revenue (Amendment) Rule, 1960 was suitably amended imposing restriction or alienation of the lands allotted to the Scheduled Tribes and Scheduled Castes without prior permission of the Government. In Kerala, the Kerala Land Reforms Act, 1963 contains similar provision. The Kerala Scheduled Tribes (Restriction of Transfer of Land and Regulation of Alienation of Lands), Act, 1975 was enacted for the same object which has recently been amended by a bill, details whereof are not available. Madhya Pradesh, the M.P.L.P. Code, 1959, under Sections 165(6) and 168(1), prohibits alienation of land and remedy .of restoration thereof is provided. In Manipur, the Manipur Land Reforms and Land Revenue Act,; 1970 was made. Similarly, the Orissa Scheduled Areas (Transfer of Immovable Property) Regulation and also Orissa Land Reforms Act, 1960 were made for the same purpose. The Rajasthan Tenancy Act, 1955, as amended in 1956, prohibits such transfer of lands. In Sikkim, Sikkim Revenue Order, 1977 and Sikkim Agricultural Land Ceiling and Reforms Act, 1977 are enforced. Equally, the Madras Cultivating Tenants Protection Act, 1955 provides the same relief. In Tripura, Tripura Land Revenue and Land Reforms Act, 1960 imposes similar restrictions. In Uttar Pradesh, the U. P. Land Laws (Amendment) Act, 1982 was made though its implementation was stayed by the High Court.

Constitutional Scheme to protect the Tribes

Chapter VI, Part X of the Constitution deals with “Scheduled Tribes and Tribal Areas”. Article 244 provides that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the State of Assam, Meghalaya, Tripura and Mizoram. The provision of Clause (2) of Article 244-A are not relevant for the purpose of this case; hence omitted. The Fifth Schedule makes the provisions as to the administration and control of Scheduled Area and Scheduled Tribes. Para (1) envisages that unless the context otherwise requires, the expression “State” defined in the Schedule does not include the State of Assam. Meghalaya, Tripura and Mizoram. Part V of the Schedule gets attracted to the administration and control. Para (2) envisaged that subject to the provisions of the Schedule, the executive power of a State extends to the Scheduled Areas enumerated therein. Special duty has been entrusted to the Governor to report to the President of the administration of scheduled area. It enjoins that the Governor of each State, having Scheduled Areas therein, shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said area. Para 5(2) provides that the Governor may make regulations for the peace and good Government of any area in a State which is for the time being a Scheduled Area. Without prejudice to the above general power, special power has been conferred under Clause (a) to prohibit or to restrict the transfer of land by or among members of the Scheduled Tribes in such area and under Clause (b) to regulate the allotment of land to members of the Scheduled Tribes in such area; under Clause (c) regulates money-lending to the tribals in the Scheduled Area.

In the Constitution, the expression ‘Scheduled Areas’ has been defined to mean such area as the President may by order declare to be Scheduled Areas. Clause (2) of para 6 provides that the President may at any time by order (a-) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area; (aa) increase the area of any Scheduled Area in a State, after consultation with the Governor of that State; (b) alter, but only by way of rectification of boundaries, any Scheduled Area; (c) on any ” alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of a Scheduled Area. Clause (d) deals with the rescission of any order under para 6. Such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of that paragraph shall not be varied by any subsequent order. Part D, para 7 empowers the Parliament to amend the Schedule by way of addition, variation or repeal of any of the provisions of the Fifth Schedule. Such a varied or modified Schedule shall be referred to such amended Schedule. The other details are not material for the purpose of this case. Hence they are omitted.

Meaning of Person :

The word ‘person’ in the interplay of juristic thought is either natural or artificial. Natural persons are human beings while artificial persons are Corporations. Corporations are either Corporation aggregate or Corporation sole. In “English Law” by Kenneth Smith and Denis Keenan (Seventh Edition) at page 127, it is staled that “legal personality is not restricted to human beings. In fact various bodies and associations of persons can, by forming a corporation to carry out their functions, create an organisation with a range of rights and duties not dissimilar to many of those possessed by human beings. In English law such corporations are formed either by charter, statute or registration under the Companies Acts; there is also the common law concept of the Corporation Sole”. At page 163. it is further staled that “(T]he Crown is the executive head in the United Kingdom and Commonwealth, and government departments and civil servants act on behalf of the Crown”. In “Salmond on Jurisprudence” by P. J. Fitzgerald [Twelfth Edition], at page 66, it is stated that “[A] legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination…”.At page 72, it is further amplified that “[T]he King himself, however, is in law to mere mortal man. He has a double capacity, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and underlying persona fact, in whom by law the powers and prerogatives of the government of this realm are vested”. In “Jurisprudence” by R. W. M. Dias [Fifth Edition], at page 265, it is stated that”…the value of personifying group activities is further reduced by the fact that courts have evolved ways of dealing with such activities without resorting to the device of persona”.