Category Archives: LAND

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Commentaries on West Bengal Estates Acquisition Act, 1953

WEST BENGAL STATE LAWS

The interest of the intermediary was affected under the W.B.E.A. Act. But it is not a fact that no person other than intermediary was brought under the ambit of the W.B.E.A. Act. The words “and any of the rights of certain other persons in the lands comprised in the estates” have been inserted with retrospective effect by section 2 of the W.B.E.A. (Amendment) Act, 1961 (W.B. Act. IX of 1961). The preamble can be referred in case of any doubt in the interpretation of the provisions of a statute.

CHAPTER I. Preliminary.

Short title 1. (1) This Act may be called the West Bengal Estates Acquisition Act, 1953.

West Ben. Act (2) It extends to the whole of West Bengal except the areas described in XXXIII of 1951. Schedule I of the Calcutta Municipal Act, 1951, as deemed to have been amended Under section 594 of that Act.

Definitions. 2. In this unless there is anything repugnant in the subject or context,—–
(a) “agricultural year” means the Bengali year commencing on the first day of Baisakh.
(b) “agricultural land” means land ordinarily used for purposes of agriculture or  horticulture and includes such land, notwithstanding that it may be lying fallow for the time being;
(c) “charitable purpose” includes the relief of the poor, medical relief or the advancement of education or of any other object of general public utility.
(d) “Collector” means the Collector of a disctirct or any other officer appointed by the
State Government to discharge any of the functions of the Collector under this Act;
(e) “date of vesting” means the date mentioned in the notification under sub-section (1) of section 4;
(f) “estate” or “tenure” includes part of an estate or part of a tenure; 1

(g) “homestead” means a dwelling house together with  any courtyard, compound, garden, out-house, place of worship, family, grave-yard, library , office, guest-house, tanks, wells privies, larines, drains and boundary walls annexed to or appertaining to such dwelling house ;

(h) “incumbrance” in relation to estates and rights of intermediaries therein does not include the the rights of a raiyat or of an under –raiyat or of a non-agricultural tenant but shall, except in the case of land allowed to be retained by an intermediary under the provisions of section 6, include all rights or interests of whatever nature, belonging to intermediaries or other persons , which relate to lands comprised in estates or to the produce thereof;

(i) “ intermediary” means a proprietor, tenure-holder, under-tenure-holder or any other
intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in elation to mines and minerals, includes a lessee and a sub-lessee;
(j) “non-agricultural land” means land other than agricultural land  or other than land
comprised in a forest;

(k) “non –agricultural tenant” means a tenant on non-agricultural land who holds under a proprietor, a tenure-holder , a service tenure-holder or an under –tenure-holder;
(l) “notified area” means a district or part of a district in respect of which a notification
has been duly published under section 4;
(m) “prescribed “ means prescribed by rules made under this Act;
(n) “religious purpose” means a purpose connected with religious worship, teaching or
service or any performance of religious rites;

(o) “rent” means whatever is lawfully payable or deliverable in money or kind or both, by a tenant to his landlord, on account of the use or occupation of the land held by the tenant and includes also money revoverable under any enactment for the time being in force as if it was rent;

(p) expressions used in this Act and not otherwise defined have in relation to the areas to
which the Bengal Tenancy Act, 1885, applies, the same meaning as in that Act and in relation to other areas meaning as similar thereto as the existing law relating to land tenures applying to such areas, permits.

3. Act to override other laws etc- The provisions of this Act shall have effect notwithstanding anything to the contrary  contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary.

Provided that nothing in this Act shall apply to any land held by a Corporation, not being a local authority or a company, established by or under any law for the time being it force :

Provided further that nothing in this Act shall affect any land possession of which was taken by the state Government before the date mentioned in the notification issued under section , in furtherance of any proposal for acquiring such land , whether any formal proceedings for such acquisition such were started or not, and proceedings for acquisition of such land may be continued or commenced as if this Act has not been passed.

 

Devider VOCABULARY

Tenure Holder

Under Sub-section (1) of Section 5 of the Bengal Tenancy Act ‘tenure-holder’ means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it. and includes also the successors-in-interest of persons who have acquired such a right.

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LAND

Jagtar Singh Ors. Vs. State of Uttarakhand Ors[ SC 2018 February]

KEYWORDS:- WRIT APPEAL- LAND RECORD-MUTATION

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DATE:-February 02, 2018

“Supervisor Qanoongo could not have made entries in favour of the appellants without giving public notice and without giving notice to the legal heirs of Teja Singh. The dispute is as to which of the parties is in possession of the land. The High Court erred in directing that the names of both the parties should be removed. This could not have been done”.

ACTS:-  U.P. Consolidation of Holdings Act-Land Records Manual

SUPREME COURT OF INDIA

Jagtar Singh Ors. Vs. State of Uttarakhand Ors.

[Civil Appeal No(S). 1497 of 2018 @ SLP (C) No(S).5278 of 2014]

Deepak Gupta J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 29.07.2013 passed in Writ Petition No. 3791 of 2001 whereby the writ petition filed by the petitioners was dismissed.

3. The facts giving rise to this appeal are that the land, which is the subject matter of dispute, was earlier shown in possession of one Teja Singh and entry in this behalf was reflected in Varg-4 of the revenue record. After Teja Singh died, his name was substituted by Appellant Harbhajan Kaur (since deceased) by the Supervisor Qanoongo since he found her to be in possession of the land. Jagir Singh and Karnail Singh, sons of Teja Singh, filed objections under the U.P. Consolidation of Holdings Act claiming that after the death of their father, they being the sons continued to be in possession of the land and their name should have been recorded in the revenue record. These objections were dismissed.

However, on appeal being filed by the sons, the Settlement Officer, Consolidation set aside the order passed by the Consolidation Officer and directed that the names of Jagir Singh and Karnail Singh be recorded in the revenue records. Revision filed before the Deputy Director of Consolidation was dismissed and thereafter, the writ petition was filed.

4. The High Court held that though Para 423 of the Land Records Manual authorizes the Supervisor Qanoongo to make entry of possession in remarks column but it shall be done after full publicity about his visit. In this case, neither publicity was done nor notice was given to the legal heirs of Teja Singh and, therefore, both the Settlement Officer and the Deputy Director, Consolidation were justified in quashing the entries made in favour of the present appellants. The High Court went on to hold as follows:

“In the impugned orders passed by the S.O.C. and D.D.C., so far as the finding that the Supervisor Qanoongo has no right to correct the entry in revenue record, which is already in existence, is concerned, this finding is affirmed, but so far as the direction given to enter the names of Karnail Singh and Jagir Singh on the land in dispute is concerned, the same is quashed and it is held that the entry of petitioners and the respondents cannot continue in revenue record after consolidation and it is directed that entry of Varg-4 be deleted from the land in question of both the parties, petitioners as well as the respondents.”

5. We are in agreement with the aforesaid findings to the extent that Supervisor Qanoongo could not have made entries in favour of the appellants without giving public notice and without giving notice to the legal heirs of Teja Singh. The dispute is as to which of the parties is in possession of the land. The High Court erred in directing that the names of both the parties should be removed. This could not have been done.

Therefore, the direction of the High Court that the entry of possession cannot continue in favour of either of the parties is set aside. The matter is remanded to the Supervisor Qanoongo, who after hearing both the sides, shall decide as to who is in legal possession of the land in dispute and thereafter make relevant entry in the revenue records.

6. The appeal is disposed of in the above terms. Pending applications, if any, shall also stand disposed of.

J. (Madan B. Lokur)

J. (Deepak Gupta)

New Delhi

February 02, 2018

LAND

Malik Industry & ANR. Vs. State of Haryana & Ors.[SC 2017 DECEMBER]

KEYWORDS:- ACQUISITION OF LAND-

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DATE:-DECEMBER 12, 2017-

The land acquisition proceedings initiated against the appellants stand lapsed. However, the respondents are given the opportunity to initiate proceedings afresh under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, within a period of six months from today.

ACT:-Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

SUPREME COURT OF INDIA

Malik Industry & ANR. Vs. State of Haryana & Ors.

[Civil Appeal No(S). 21802-21803/2017 arising from SLP (C) Nos.37089-37090 of 2013]

KURIAN, J.

1. Leave granted.

2. The appellant approached this Court with certain grievances with regard to the acquisition of their land. During the pendency of these appeals, the appellants filed an interlocutory application praying for a declaration to the effect that on account of operation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the whole acquisition has lapsed. Pursuant to the directions issued by this Court, the respondents have filed a Status Report. It is admitted that in the case of the appellants, the compensation amount has not been paid to them; it was only deposited with the Land Acquisition Collector.

3. Therefore, the judgment of this Court in Pune Municipal Corporation & Anr., v. Harakchand Misirimal Solanki & Ors., reported in (2014) 3 SCC 183, as it stands today, squarely applies to these appeals.

4. Accordingly, the appeals are allowed. The land acquisition proceedings initiated against the appellants stand lapsed. However, the respondents are given the opportunity to initiate proceedings afresh under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, within a period of six months from today.

5. Pending applications, if any, shall stand disposed of.

6. There shall be no orders as to costs.

J. [KURIAN JOSEPH]

J. [AMITAVA ROY]

NEW DELHI;

DECEMBER 12, 2017

CIVIL, LAND

Maya Devi (D) through LRS. & Ors. Vs. State of Haryana & ANR.[SC 2018 JANUARY]

KEYWORDS:- compensation award- land acquisition-

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DATE:- January 25, 2018

ACTS:- Section 4(1) of the Land Acquisition Act, 1894

SUPREME COURT OF INDIA

Maya Devi (D) through LRS. & Ors. Vs. State of Haryana & ANR.

[Civil Appeal Nos. 873-874 of 2018 arising out of SLP(C) Nos.30923-30924 of 2016]

R. BANUMATHI, J.

1. Leave granted

2. These appeals arise out of the judgment of the High Court of Punjab and Haryana at Chandigarh in and by which the High Court enhanced the compensation to Rs.2,19,413/- per acre and also dismissed the review holding that the subsequent evidence sought to be brought is not relevant as it is based upon post notification.

3. Respondent No.2-Haryana State Ware Housing Corporation had acquired 40 kanal and 8 marlas land at Rania for construction of warehouse/godown vide Notification dated 12.02.1988 issued under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’); out of which 40 kanal 8 marlas land, 21 kanal 6 marlas land was of the present appellants;

Notification dated 21.02.1989 was issued under Section 6 of the Act. Vide award No.9 dated 19.05.1990, the Land Acquisition Officer awarded compensation of Rs.75,000/- per acre. Being aggrieved by the award dated 19.05.1990, the appellants/claimants filed a reference petition under Section 18 of the Act before Additional District Judge, Sirsa for enhancement of compensation, which came to be dismissed by judgment dated 15.02.1993. Being aggrieved by the dismissal of the claim for enhancement, the appellants/claimants filed appeal before the High Court in R.F.A.No.1519 of 1993.

The High Court relied upon the sale deed dated 26.05.1983 wherein small extent of land of 9 marlas was sold for Rs.25,500/- as an exemplar. The High Court gave escalation at 10% for the time gap of 56 months and calculated the value at Rs.6,64,887/- per acre and made the deduction at the rate of 67.5% for development charges and calculated the compensation to be awarded at Rs.2,19,413/- per acre.

4. Being aggrieved, the land owners filed Special Leave Petition(C) No.27989 of 2013 before this Court which was withdrawn by order dated 01.08.2014 with liberty to file review before the High Page No. 2 of 10 Court. In the review petition, the appellants/claimants relied upon:-

(i) sale deed dated 27.12.1988; and

(ii) subsequent acquisition of nearby land vide notification dated 27.03.1989 in which the High Court by its judgment dated 15.09.2006 in R.F.A. No.866 of 1996 awarded compensation of Rs.7,26,000/- per acre.

The High Court dismissed the review, inter alia, holding that the sale deed dated 27.12.1988 is a post notification sale and also the acquisition vide notification dated 27.03.1989 was subsequent one and the same is not relevant for determining the market value of the lands acquired vide notification dated 12.02.1988. Moreover, the High Court found no valid ground for review under Order XLVII C.P.C. Being aggrieved, the appellants/land owners have filed these appeals.

5. Contention of the appellants/claimants are mainly three-fold:-

(i) there was only ten months difference between the notification dated 12.02.1988 and the sale deed dated 27.12.1988 while so, the High Court was not justified in not considering the said sale deed dated 27.12.1988 as an exemplar on the ground that the same is a post notification;

(ii) considering that the land acquired falls within municipal limits and had immense potential for use for commercial and residential purpose, applying the maximum cut at the rate of 67.5% was not justified; and

(iii) for acquisition of the land of the adjoining khasra by notification dated 27.03.1989, compensation was awarded at the rate of Rs.7,26,000/- per acre by the High Court which is more than three times higher than the compensation awarded in the present case.

6. So far as the first contention is concerned, the sale deed relied upon by the appellants/claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference court, based upon the market value of the acquired land at the date of the publication of the notification under Section 4(1). In Kolkata Metropolitan Development Authority v. Gobinda Chandra Makal and Anr. (2011) 9 SCC 207, it was held that the relevant date for determining the compensation is the date of publication of the notification under Section 4(1) of the Act in the Gazette. In para (34), it was held as under:-

“34. One of the principles in regard to determination of the market value under Section 23(1) is that the rise in market value after the publication of the notification under Section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of “publication of the notification” in the amended Section 4(1) is imported as the meaning of the said words in the first clause of Section 23(1), it will lead to anomalous results.

The owners of the lands which are the subject-matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. If the giving of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself.” Applying the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land.

7. So far as the contention regarding deduction at the rate of 67.5% for development charges is concerned, the exemplar relied upon by the High Court dated 26.05.1983 was for a small extent of land of 9 marlas which was sold for Rs.25,500/-. The transaction relates to the period which is about 56 months prior to the notification under Section 4 of the Act and the High Court adopted the rate of escalation at 10% and calculated the value at Rs.6,64,887/-. Considering the fact that the acquired land required for development and that the property covered under the exemplar was for a small extent of 9 marlas of land, the High Court applied maximum deduction at 67.5% and calculated the compensation to be paid at Rs.2,19,413/- per acre.

8. In Haryana State Agricultural Market Board and Anr. v. Krishan Kumar and Ors. (2011) 15 SCC 297, this Court has held that “if the value of small developed plots should be the basis, appropriate deductions will have to be made therefrom towards the area to be used for roads, drains, and common facilities like park, open space, etc. Thereafter, further deduction will have to be made towards the cost of development, that is, the cost of leveling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines.”

9. Observing that the development charges for development of particular plot of land could range from 20% to 75%, in Lal Chand v. Union of India and Another (2009) 15 SCC 769, in paras (13), (14) and (20), this Court held as under:

“13. The percentage of ‘deduction for development’ to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated.

14. The ‘deduction for development’ consists of two components. The first is with reference to the area required to be utilised for developmental works and the second is the cost of the development works. ……… 20. Therefore the deduction for the ‘development factor’ to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorised private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure.” The same principle was reiterated in Andhra Pradesh Housing Board v. K. Manohar Reddy and Ors. (2010) 12 SCC 707.

10. In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges. After referring to various case laws on the question of deduction for development, in Major General Kapil Mehra and Ors. v. Union of India and Anr. (2015) 2 SCC 262, this Court held as under:

“35. Reiterating the rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer (2012) 7 SCC 595, this Court in para 19 held as under: (SCC pp. 606-07)

“19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana (2003) 1 SCC 354 the Court held: (SCC pp. 359-60, para 7) ‘7. …

It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes.

A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurredin developing the area also varies…………………There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, maybe in some cases it is more than 1/3rd and in some cases less than 1/3rd.

It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.’ The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. (2003) 10 SCC 525, V. Hanumantha Reddy v. Land Acquisition Officer (2003) 12 SCC 642, H.P. Housing Board v. Bharat S. Negi (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority (2004) 10 SCC 745.

“(emphasis in original)

36. While determining the market value of the acquired land, normally one-third deduction i.e. 33 1/3% towards development charges is allowed. One-third deduction towards development was allowed in Tehsildar (LA) v. A. Mangala Gowri (1991) 4 SCC 218, Gulzara Singh v. State of Punjab (1993) 4 SCC 245, Santosh Kumari v. State of Haryana (1996) 10 SCC 631, Revenue Divl. Officer and LAO v. Sk. Azam Saheb (2009) 4 SCC 395, A.P. Housing Board v. K. Manohar Reddy (2010) 12 SCC 707, Ashrafi v. State of Haryana (2013) 5 SCC 527 and Kashmir Singh v. State of Haryana (2014) 2 SCC 165.

37. Depending on the nature and location of the acquired land, extent of land required to be set apart and expenses involved for development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar (2011) 15 SCC 297, Director, Land Acquisition v. Malla Atchinaidu (2006) 12 SCC 87, Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd. (2009) 4 SCC 402 and Lal Chand v. Union of India (2009) 15 SCC 769.

38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer (1996) 9 SCC 640, this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana (2008) 15 SCC 201, deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana (2010) 1 SCC 444, held that deduction of 67% amount was not improper. Similarly, in Chandrashekar v. Land Acquisition Officer (2012) 1 SCC 390, deduction of 70% was upheld.”

11. In Subh Ram and Others v. State of Haryana and Anr. (2010) 1 SCC 444, the deduction of 67% was held to be not improper. In the case in hand, the High Court applied deduction at 67.5% which in our considered view is on the higher side. In the facts and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre.

12. The impugned judgment is modified and the appellants/claimants are entitled to get enhanced compensation of Rs.4,43,258/- payable with all statutory benefits. The appeals are partly allowed. It is made clear that the appellants/claimants shall not be entitled to claim interest for the period of delay in preferring the appeals from the review.

 [RANJAN GOGOI]

 [R. BANUMATHI]

New Delhi;

January 25, 2018

CIVIL, LAND

Aftaruddin (D) represented through LRS. Vs. Ramkrishna Datta @ Babul Datta & Ors. [SC 2017 December]

KEYWORDS:- RAIYAT-

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 DATE: December 08, 2017-

A “raiyat” has been defined in Section 2(s) of the TLR & LR Act to mean a person who owns land for purposes of agriculture, paying land revenue to the Government; and “under-raiyat” under Section 2(v) means a person who cultivates or holds the land of raiyat under an agreement, express or implied, on condition of paying therefor rent in cash or in kind or delivering a share of the produce and includes a bargadar, i.e. a person who cultivates the land of any person on a condition of delivering a share of the produce to the land owner or raiyat

ACT:-  Section 108 of the Tripura Land Revenue and Land Reforms Act, 1960

SUPREME COURT OF INDIA

Aftaruddin (D) represented through LRS. Vs. Ramkrishna Datta alias Babul Datta & Ors.

[Civil Appeal No. 9040 of 2013]

Deepak Gupta, J.

1. Ramkrishna Datta, Dhirendra Chandra Ghosh and Lalit Mohan Ghosh, filed a suit in the trial court for declaration of their title on the suit land with consequential relief of permanent injunction for restraining Aftarduddin (contesting defendant & appellant before this Court), who has since expired and is represented by legal heirs, from interfering in the suit land.

2. From the facts as pleaded and proved before the trial court it is apparent that one Sayed Jama Kazi was the raiyat (owner) of the suit land. Aftaruddin was under-raiyat (Kurfa rights similar to tenancy rights). This fact is apparent from the Revenue Record as reported in the Civil Survey of Settlement for the year 1965-66 and in the Revenue Khatiyan No.302 published on 15.03.96.

On 11.01.71, Aftaruddin is alleged to have executed a sale deed transferring the entire suit land in favour of Mamataj Begam, daughter of the raiyat Sayed Jama Kazi. Thereafter, Mamataj Begam and Sayed Jama Kazi transferred the suit land to plaintiffs 1 and 2 by registered sale deed on 27.11.71. On 06.04.81 plaintiff no.2 sold and transferred a portion of his land to plaintiff no.3. In the Revenue Record the defendant Aftaruddin was shown to be in possession of the suit land. Therefore, the plaintiffs filed a suit for declaration of their title and prayed for injunction that defendant no.1 be restrained from interfering in the suit land.

3. The suit was contested by Aftaruddin and two contentions were raised:

(i) that the sale deed was never executed by him and

(ii) that being an under-raiyat he could not transfer his rights to any person in view of the bar created by Section 108 of the Tripura Land Revenue and Land Reforms Act, 1960 (for short the ‘TLR & LR Act’). The original sale deed was not produced on the ground that the same was destroyed in fire but a certified copy of the same was produced.

The trial court held that though the sale deed had been executed, Aftaruddin could not have transferred his rights in the suit land and, therefore, dismissed the suit. The First Appeal filed was also dismissed. In the Second Appeal this concurrent finding of fact was set aside on the ground that it was a perverse finding. It was held by the High Court that in the sale deed Aftaruddin has represented himself to be a raiyat and not an under-raiyat and, therefore, Section 108 of TLR & LR Act had no application. The High Court also found that in terms of Section 43 of the Transfer of Property Act the subsequent vendee could not be denied their rights.

4. We have heard learned counsel for the appellant. A “raiyat” has been defined in Section 2(s) of the TLR & LR Act to mean a person who owns land for purposes of agriculture, paying land revenue to the Government; and “under-raiyat” under Section 2(v) means a person who cultivates or holds the land of raiyat under an agreement, express or implied, on condition of paying therefor rent in cash or in kind or delivering a share of the produce and includes a bargadar, i.e. a person who cultivates the land of any person on a condition of delivering a share of the produce to the land owner or raiyat.

5. Section 108 of TLR & LR Act reads as follows :-

“108.

(1) The interest of under-raiyat in any land held by him as such shall be heritable but, save as otherwise provided in this Act, shall not be transferable.

(2) No under-raiyat shall be evicted from his land except as provided in this Act.” A bare reading of the aforesaid provision makes it absolutely clear that an under-raiyat is prohibited from transferring his interest as under-raiyat in any land though this interest is a heritable interest. Sub-section (2) provides that no underraiyat can be evicted except in accordance with the provisions of the TLR & LR Act. The TLR & LR Act was enacted as an agrarian reform legislation and the purpose of Section 108 is to prevent the under-raiyats or tenants from being evicted or being forcefully or dishonestly compelled to transfer their rights as under-raiyats.

6. The learned Single Judge laid great emphasis on the fact that in the sale deed Aftaruddin is described to be a raiyat. This cannot in any manner validate the sale deed which is otherwise totally against law. Obviously, a Sub- Registrar could not have registered a sale deed where the seller has described himself as an under-raiyat. We may also add that the vendee Mamataj Begam was none other than the daughter of Sayed Jama Kazi, the raiyat. A few months after Aftaruddin executing the sale deed on 11.01.71, Mamataj Begam and her father Sayed Jama Kazi sold the entire land in favour of the plaintiffs/respondents 6 on 27.11.71.

It is obvious that the sale deed dated 11.01.71 was got executed showing Aftaruddin as a raiyat to get over the bar of Section 108. This is what Section 108 prohibits. The plaintiffs who were subsequent purchasers cannot take benefit of the subterfuge and fraud committed by Sayed Jama Kazi and Mohd. Aftaruddin. Their remedy, if any, lay in taking action against Sayed Jama Kazi and Mamataj Begam, who were not even impleaded as parties in the suit. The High Court totally mis-interpreted the provisions of Section 108.

7. In 1987 Aftaruddin was conferred the rights of the raiyat. It was contended on behalf of the plaintiffs that in view of Section 43 of the Transfer of Property Act since Aftaruddin is now entitled to transfer his rights a sale deed in their favour becomes valid. This is not at all correct. No sale deed was executed by Aftaruddin in favour of the plaintiffs. The fraud was not committed by Aftaruddin but by Sayed Jama Kazi and Mamataj Begam. The protection under Section 108 of the TLR & LR Act which is a statutory protection could not have been taken away by the subterfuge committed by the then raiyat.

8. We are clearly of the view that the High Court exceeded its jurisdiction in setting aside the concurrent finding of fact without any question of law much less a substantial question of law arising in the second appeal. Accordingly the judgment of the High Court is set aside and the judgment of the trial court is restored. The appeal is, accordingly, allowed.

 (Madan B. Lokur)

 (Deepak Gupta)

New Delhi

December 08, 2017

CIVIL, LAND

Vijay Kumar & Another Vs. Bal Krishan & Others [SC 2017 December]

KEYWORDS:-Partition and declaration of share-Bhumidari Right-

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It was observed that in absence of any material with regard to the respective shares, and more particularly in view of the pleadings in the joint plaint followed by a declaration of co-bhumidars, the order called for no interference.

DATED :- December 08, 2017

ACTS:-  Section 229(B) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act

SUPREME COURT OF INDIA

[Civil Appeal No.21012 of 2017 arising out of SLP (C) No.31002 of 2015]

[Civil Appeal No.21013 of 2017 arising out of SLP (C) No.34286 of 2017 @ SLP (C)…. CC No.21194/2015]

NAVIN SINHA, J.

Delay in SLP(C)….(CC) No. 21194 of 2015 is condoned.

Leave granted in both special leave petitions.

2. The challenge in these two appeals, is to the order dated 7.08.2013 allowing W.P. (M/S) No. 1209 of 2002 preferred by the Respondent, and the order dated 23.07.2015 dismissing MCC No. 554 of 2013 for recall of the same, preferred by the Appellants who were the Respondents in the writ petition.

3. The Appellants and Respondent no.1, as plaintiffs, together filed Revenue Suit No. 22/15 of 1987-88 under Section 229(B) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (hereinafter referred to as “U.P.Z.A.L.R. Act”) for declaration of bhumidari rights in respect of the suit lands against Omprakash and Balraj Singh. The suit was decreed on 18.04.1991 by the Assistant Collector, declaring them to be joint bhumidhars of the suit lands. Appeal No. 150/98 of 1990-91 preferred against the same was dismissed on 24.03.1993 by the Additional Commissioner.

In Suit No. 22/108 of 1991-92 preferred by the Respondent under Section 176 of the U.P.Z.A.L.R. Act for a partition and declaration of his share, he was held entitled to 1/10th share only by the Assistant Collector on 26.04.1995. Pursuant to an order of remand by the Additional Commissioner on 19.12.1995, the Assistant Collector on 23.12.1998 held that the suit lands having been recorded in the joint names of the parties, the Respondent was entitled to 1/3rd share and the regional Patwari was directed to prepare separate kurrah and map.

4. The Appellants appeal against the order of the Assistant Collector was allowed on 19.05.1999 by the Commissioner holding that the Respondent was entitled to 1/10th share. The second appeal by the Respondent was dismissed on 19.09.2002. Aggrieved, the Respondent preferred W.P.(M/S) No. 1209 of 2002 assailing the same. The learned Single Judge allowed the writ petition holding that the declaration of the Respondent having 1/10th share only in the suit lands suffered from perversity as it did not take into consideration the decree in Revenue Suit No. 22/15 of 1987-88 preferred jointly declaring them as co-bhumidars and which had attained finality. The order of the Assistant Collector dated 23.12.1998 was restored.

5. Subsequently, the Appellants preferred MCC 544 of 2013 for recall of the order dated 7.08.2013 seeking to assail the finding on merits in the garb of a review application. Dismissing the same it was observed that in absence of any material with regard to the respective shares, and more particularly in view of the pleadings in the joint plaint followed by a declaration of co-bhumidars, the order called for no interference.

6. We have heard learned counsel for the parties at length. The short question for consideration is whether in view of the joint purchase and declaration in Suit No. 22/15 of 1987-88, the two Appellants and Respondent no.1 are co-bhumidhars to the extent of 1/3rd share of each, or is Respondent no. 1 owner to the extent of 1/10th share only as contended by the Appellants? 4 7. Indisputably, Suit No. 22/15 of 1987-88 was filed by the Appellants and the Respondent together as plaintiffs for declaration of co-bhumidari rights over the entire suit lands.

There is no evidence of any partition having taken place between them. The rejoinder by the Appellant to the counter affidavit filed by Respondent no.1, does not deny that before the order of status quo was passed in the present proceedings on 08.01.2016, the impugned order stood complied on 22.09.2015 in Execution Case no. 22/69 of 2012-13.

8. The impugned orders call for no interference. The appeals are dismissed.

 (R.K. Agrawal)

(Navin Sinha)

CIVIL, LAND

Indore Development Authority Vs. Shailendra (D) through LRS. & Ors.[SC 2017 DECEMBER]

KEYWORDS:- Compensation- Land acquisition-

Capture

Refer to: larger  Bench.

DATE : DECEMBER 7, 2017

ACTS: section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013-Section 38 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973

SUPREME COURT OF INDIA

Indore Development Authority Vs. Shailendra (D) through LRS. & Ors.

[Civil Appeal No.20982 of 2017 arising out of S.L.P. (C) No.2131 of 2016]

ARUN MISHRA, J.

1. Leave granted.

2. The question arises whether by virtue of the provisions contained in section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “the Act of 2013”), the proceedings lapsed in the instant case.

3. The facts in short are that the Indore Development Authority (for short, “the IDA”) established under section 38 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, “the Adhiniyam of 1973”) prepared a Master Plan which came into force on 21.3.1995, formulated scheme Nos.124(A) and (B) under section 50(1) of the Adhiniyam of 1973 and decided to acquire land for the purpose of constructing Ring Road and Link Road on the outskirts of Indore city. The ring road has been fully constructed. The land was acquired for the purpose of constructing Link Road, for joining the major road to the Ring Road under Scheme 124(B). Possession of the land is stated to be with the encroachers and not with the landowners.

The compensation was deposited by the IDA with the Land Acquisition Collector. The landowners were informed to collect it but they had refused and did not receive the compensation. The IDA published the schemes as per the provisions of the Adhiniyam of 1973. On 6.2.1991, a prayer was made to the Collector to acquire the land and on 2.3.1994 compensation was deposited with the Land Acquisition Collector. Notification under section 4 was 3 issued on 23.12.1994. Section 17(1) was also invoked. Enquiry under section 5A was dispensed with. Declaration under section 6 was published on 17.3.1995 under the Land Acquisition Act, 1894 (hereinafter referred to as “the Act of 1894”).

Respondent No.1 – owner filed objections before the Land Acquisition Officer claiming compensation of Rs.32,50,000/-. Award was passed by the LAO on 14.3.1997 and the sum awarded to respondent No.1 was Rs.7,90,813/-. A belated W.P. No.1182 of 1997 was filed for quashing the acquisition proceedings. It was allowed on 28.8.1998 holding that the scheme lapsed on expiry of three years. Enquiry under section 5A was illegally dispensed with. Letters Patent Appeal No.480 of 1998 was preferred before the Division Bench and on 29.1.2000 an order of status quo was passed. The LPA was dismissed as not maintainable. However this Court remitted the matter to the High Court to file writ appeal under the provisions of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. On 4.4.2007 the High Court directed maintenance of status quo.

4. The respondent filed an application raising the ground under section 24(2) of the Act of 2013. It was resisted by the IDA on the ground that the acquisition had been completed and the amount has been deposited with the Land Acquisition Collector. Construction is almost complete. If it is not completed in the remaining area, it will cause great hardship to the citizens and widening of road was necessary for smooth flow of traffic. The High Court by the impugned order dated 3.11.2014 held that the proceedings had lapsed in view of the decisions of this Court in Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & Anr. (2014) 3 SCC 183 and Shree Balaji Nagar Residential Association v. State of Tamil Nadu (2015) 3 SCC 353.

5. Shri P.S. Patwalia, learned senior counsel urged that there was no lapse of proceedings in the instant case as compensation was offered but was not accepted by 5 landowners. For their own refusal they cannot lay the blame at the door of the IDA. The provisions of section 24 cannot come to the rescue of such incumbents. Even if the compensation has not been deposited with the Reference Court under section 31(2) of the Act of 1894 the effect would be of payment of higher interest under section 34.

The expression used in section 24 of the Act of 2013 is ‘compensation has not been paid’. It is not that that the expression used is that it has not been deposited under section 31. It was further submitted there was no lapse of the proceedings under the Act of 1894 in view of non-deposit under section 31. The only liability was of higher interest of 9% for the first year from the date of taking possession and thereafter to pay the interest at 15%.

When the consequence of lapse of land acquisition proceedings was not provided in the Act of 1894, in case of failure to deposit under section 31(2), the provision of section 34 is attracted regarding payment of interest. Thus it could not be said that due to failure to deposit or in the case of refusal, proceedings would lapse. Section 24(2) would apply to a case where compensation has not been tendered to the landowners and has not been deposited with the Land Acquisition Collector for payment. In other words, no arrangement has been made by the acquisitioning authority or the beneficiary for payment of compensation.

The provisions of section 24 would not be applicable in case there is refusal to accept the compensation and there was litigation by the landowner or on his behalf by successor-in-interest, to quash the land acquisition proceedings in such a case for their own wrong and for non-acceptance of compensation, it could not be claimed by such incumbents when they have themselves obtained interim orders from the court or where the proceedings have been illegally quashed by the High Court and an appeal etc. is pending to invoke the benefit of the provisions of section 24 of the Act of 2013.

In the instant case award has been passed, compensation has been deposited with the Land Acquisition Collector for payment to landowners and they had declined to accept it. The stale claims are also being agitated in this Court under the guise of section 24 whereas it does not protect such claims. It was also submitted that when the High Court has illegally quashed the notification and interim order was passed, the benefit of section 24 cannot enure to the landowners in such cases as the act of court cannot prejudice anybody.

6. It was contended on behalf of the landowners that the impugned order is proper. It is in tune with Pune Municipal Corporation (supra) and other decisions like Shree Balaji (supra) etc. referred to therein, hence no case for interference was made out. Sections 31 and 34 of the Act of 1894 are extracted hereunder : “31. Payment of compensation or deposit of same in Court. –

(1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:

Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18:

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.

(3) Notwithstanding anything in this section the Collector may, with the sanction of [appropriate Government] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned.

(4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.

34. Payment of interest.– When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited: [Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.]”

7. Section 24 of the Act of 2013 is extracted hereunder :

“24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.-

(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,-

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.” 11 Provisions of section 12 of the Act of 1894 are extracted hereunder :

“12. Award of Collector when to be final. –

(1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the appointment of the compensation among the persons interested.

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.”

8. Shri Patwalia, learned senior counsel, urged that the expression used ‘compensation has not been paid’ in section 24(2) does not relate to deposit of the amount as envisaged under section 31(2) of the Act of 1894. The proviso to sub-section (2) of section 24 uses the expression “where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries”.

Compensation in respect of a majority of land holdings is not deposited in the account of beneficiaries, is not applicable as it was not the case set up and that the claim was not made under the proviso to sub-section (2) of section 24. There is vast difference between the provision of section 24(2) and its proviso. The expressions payment and deposit are used with different objectives. They have to be given the proper meanings which aspect has not been considered in any of the decisions relied upon by the High Court including Pune Municipal Corporation (supra).

9. It was also submitted by learned senior counsel on behalf of the IDA that in case of failure to deposit the amount before the Reference Court where the “reference would be submitted”, the only consequence to follow would be higher rate of interest as per the amended provision of section 34. The proviso has been added in the year 1984 providing 15% interest payable from the date of expiry of the said period of one year and for the first year the rate of interest would be 9% per annum. The proceedings of acquisition would not lapse.

It is in order to save the liability to make payment of higher interest that the provision of section 31 has been enacted, and the rate of interest, as prescribed under section 34, is higher than in any Government security/FD with the bank. Thus the failure to deposit the amount in the Reference Court entails the consequence of attraction of section 34. Thus, the proceedings would not lapse under the Act of 1894.

When it was so contemplated that under the Act of 1894 the provisions of section 24 cannot be assigned that meaning which would invalidate the proceedings owing to the procedural lapse of deposit of the amount in the court where the reference would be submitted.

10. It was also submitted that section 24 in fact is attracted to a case where there is deliberate failure on the part of the acquisitioning authority not only to tender the amount but also where no arrangement has been made and the amount has not been deposited with the Land Acquisition Collector, and the land has been acquired.

Proviso to section 24(2) makes it clear that the amount of compensation required to be deposited in the account of beneficiaries (in case of failure to make the deposit) with respect to majority of the land holdings, all the beneficiaries would become entitled for higher compensation under the new Act. In case amount has been tendered/deposited with the Land Acquisition Collector and has been deposited in the separate account of the beneficiaries in the concerned Treasury as per the provisions of the Finance Code/Rules of the concerned State, that has to be treated as sufficient compliance of the proviso to section 24(2) of the Act of 2013.

11. It was urged that in case landowners do not consent to receive the amount, the Collector was required to deposit it in the Reference Court as provided in section 31(2) but failure to make the deposit has been culled out in the Act itself as provided in section 34. Thus proceedings would not lapse.

12. It was also urged that section 31 of the Act clearly shows that consequence of non-compliance of sub-section (1) or sub-section (2) thereof is not that of the acquisition proceedings becoming invalid. The Act of 1894 never intended that the consequence of non-compliance of said provision of the Act, proceedings would become invalid. Reliance has been placed on Hissar Improvement Trust vs. Rukmani Devi and Anr. (1990) (Supp) SCC 806 in which this Court has laid down thus : “5. It cannot be gainsaid that interest is due and payable to the landowner in the event of the compensation not being paid or deposited in time in Court. Before taking possession of the land, the Collector has to pay or deposit the amount awarded, as stated in Section 31, failing which he is liable to pay interest as provided in Section 34.

7. We make it clear that insofar as the landowner is concerned, his right to be compensated is enforceable against the State. It is the liability of the Collector in terms of the relevant provisions to pay the amount awarded, together with interest in the event of the amount not being paid in time. The liability of the appellant-Trust arising under its agreement with the Government for payment in respect of the property acquired is a matter on which we express no view.”

13. Reliance has also been placed on Shri Kishan Das & Ors. v. State of U.P. & Ors. AIR 1996 SC 274, wherein this Court has observed that the liability to pay the interest arises when possession of the acquired land was taken and the amount was not deposited under section 31. This Court took note of the delay caused by the petitions filed by the claimants in the High Court and this Court, and held that even payment of interest under section 34 cannot be ordered. This Court has observed in Shri Kishan Das (supra) thus :

“3. Shri S.B. Sanyal, learned senior counsel for the appellants, contended that the award was made on March 22, 1983 though the acquisition was made in September 1976. Therefore, the appellants should be compensated by payment of interest @ 12 per cent per annum. In support of his contention, he placed reliance on the decision of this Court in Ram Chand and Ors. v. Union of India and Ors. (1994) 1 SCC 44 and in particular on paragraph 16 of the judgment. It is seen that in Ram Chander’s case even after the dismissal of the writ petitions by this Court in Aflatoon v. Lt. Governor of Delhi 17 [1975] 1 SCR 802, no action was taken by the Land Acquisition Officer to pass the award.

Thus, till 1980-81 no award was made in respect of any of the acquisitions. Under these circumstances, this Court had directed the Government to pay interest @ 12 per cent on the amount awarded to compensate the loss caused to the appellants therein. In this case it is seen that though the notification was issued in September 1976, the writ petitions came to be filed in the High Court immediately thereafter in 1977 in the High Court and obviously further proceedings were stayed. Accordingly, the Land Acquisition Officer delayed the award. After the dismissal of the writ petitions, the appellants came to this Court and obtained status quo. Obviously, the Land Acquisition Officer was not in a position to pass the award immediately.

Thereafter it would appear that he passed the award on March 22,1983. Section 34 of the Act obligates the State to pay interest from the date of taking possession under the unamended Act @ 6 per cent and after the Amendment Act 68 of 1984 at different rates mentioned therein. The liability of the State to pay interest ceases with the deposit made as per Section 34 of the Act. Further liability would arise only when the court on reference under Section 18 enhances the compensation under Section 28 of the Act. Similarly, in an appeal under Section 54 of the Act if the appellate court further increases the compensation, then again similar obligation under Section 28 arises.

4. In the light of the operation of the respective provisions of Sections 34 and 28 of the Act, it would be difficult to direct payment of interest. In fact, Section 23(1-A) is s set off for loss in cases of delayed awards to compensate the person entitled to receive compensation; otherwise a person who is responsible for the delay in disposal of the acquisition proceedings will be paid premium for dilatory tactics.

It is stated by the learned Counsel for the respondents that the amount of interest was also calculated and total amount was deposited in the account of the appellants by the Land Acquisition Officer after passing the award, i.e., on November 15, 1976 in a sum of Rs.20,48,615. Under these circumstances, the liability to pay interest would arise when possession of the acquired land was taken and the amount was not deposited. In view of the fact that compensation was deposited as soon as the award was passed, we do not think that it is a case for us to interfere at this stage.”

14. It was also urged that ordinarily when a reference is submitted, the Collector should deposit the amount of compensation into court, but the deposit of the amount is not a condition precedent to the entertainability of the reference as held in Jogesh Chandra v. Yakub Ali, 29 IC 111.

15. It was also urged that the payment is tendered by issue of a notice on the party fixing the date on which and the place where the payment would be made. The notice is given along with the notice of award under section 12(2) in which the date on which possession would be taken is also mentioned.

16. It was also urged that there are Financial Department’s orders in various States prevailing as well as in certain States Civil Court Rules also prevail which require the deposit of the Government money in the Treasury after particular time necessarily money goes to the treasury. Thus, a deposit in the treasury in the landowner’s account cannot be said to be illegal or impermissible as that is as per the standing orders and it is a matter of procedure only where the deposit is made. In case the deposit is made in the treasury, liability would still remain to make the payment of interest under section 34 of the Act of 1894. There are five methods of making payment:

(i) by direct payments;

(ii) by order on treasury;

(iii) by 20 money order;

(iv) by cheque; and

(v) by deposit in a treasury.

They are governed by the rules contained in the Civil Account Code and in the local instructions issued by various Provincial Governments, which are required to be scrupulously followed. For Punjab, Financial Commissioner’s standing order No.28 paras 74 and 75 lay down such procedure. It was also urged that in Damadilal v. Parashram, AIR 1976 SC 2229, it was observed that payment by cheque is a valid tender.

17. It was also urged that when a reference is made to a District Court and in case amount of compensation is increased, the amount also is required to be deposited as ordered by the court but it would not invalidate acquisition proceedings. Reliance has been placed on Viraraghava v. Krishnasami, ILR 6 Mad. 347 in which it was observed that the money paid into the treasury is to be considered as money or movable property impressed with the trusts and obligations of the immovable property which it represents. The rights of parties to the land, and to any mortgage on, or interest in it, are transferred to the compensation money.

18. It was also urged that the object of such deposit is to prevent unnecessary prolongation of the proceedings and accumulation of Collector’s liability for interest. When a party willfully refuses to receive payment by depositing the money in the court, the liability for interest will cease. It was also urged that section 32 does not intend to give the advantage of one’s own act or the act of the court.

19. It was also urged that this Court is also bound to prevent the abuse of process of law. The cases which have been concluded are being revived. In spite of not accepting the compensation deliberately and statements are made in the court that they do not want to receive the compensation at any cost and they are agitating the matter time and again after having lost the matters and when proceedings are kept pending by interim orders by filing successive petitions, the provisions of section 24 cannot be invoked by such landowners.

20. There is already a reference made as to the applicability of section 24 in SLP [C] No.10742/2008 — Yogesh Neema & Ors. v. State of M.P. & Ors. vide order dated 12.1.2016. There are several other issues arising which have been mentioned above but have not been considered in Pune Municipal Corpn. (supra). Thus, here is a case where the matter should be considered by a larger Bench. Let the matter be placed before Hon’ble the Chief Justice of India for appropriate orders.

 (ARUN MISHRA)

(AMITAVA ROY)

DECEMBER 7, 2017.

CIVIL, LAND

Calcutta Thika Tenancy Act, 1949

West Bengal Act No. 2 of 1949

[Assent of the Governor-General was first published in the Calcutta Gazette, Extraordinary, of the 28th February, 1949]

An Act to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta.

Whereas it is expedient to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta;It is hereby enacted as follows :—

CHAPTER I

Preliminary

1. Short title, extent and commencement.—(1) This Act may be called the Calcutta thika Tenancy Act, 1949.(2) It extends to Calcutta as defined in clause (11) of section 3 of the Calcutta Municipal Act, 1923 (Bengal Act No. 3 of 1923) and [ xxx ] to the Municipality of Howrah.(3) It shall come into force on the day on which the Calcutta thika Tenancy Ordinance, 1948 (West Bengal Ord. XI of 1948), ceases to operate.

2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,—

(1) “Bharatia” means any person by whom, or on whose account, rent is payable for any structure or part of a structure erected by a thikatenant in his holding;

(2) “Controller” means an officer appointed as such by the State Government for an area to which this Act extends and includes any officer appointed by the State Government to perform all or any of the duties imposed, or to exercise all or any of the powers conferred by this Act, on the Controller;

(3) “holding” means a parcel or parcels of land held by any person as a thika tenant under one lease or one set of conditions whether such tenant has held the land before or after the commencement of this Act;

(4) “prescribed” means prescribed by rules made under this Act;

[(4a) “pucca structure” means any structure constructed mainly of brick, stone or concrete or any combination of these materials;]

[(5) “thika tenant” means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person—

(a) who holds such land under that another person in perpetuity; or

(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or

(c) who holds such land under that another person and uses or occupies such land as a khattal]

(6) all words and expressions used but not defined in this Act and used in the Transfer of Property Act, 1882, (IV of 1882) or the Bengal Tenancy Act, 1885 (VIII of 1885), have the same meanings as in those Acts.

CHAPTER II

Incidents of thika Tenancies

[3. Grounds on which a thika tenant may be ejected.—(1) Not withstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall, subject to the other provisions of this Act, be liable to ejectment from his holding on one or more of the following grounds and not otherwise, namely :—

(i) on the ground that he has used the land comprised in his holding in a manner which renders it unfit for any of the purposes mentioned in clause (5) of section 2;

(ii) except during any period limited by a registered lease under which a thika tenant may hold the land comprised in the holding and subject to the provisions of sub-sections (2), (3) and (4), on the ground that the land is required by the landlord for his own occupation;

(iii) when he holds the land comprise:, in the holding under a registered lease for a purpose other than a residential purpose, on the ground that the term of the lease has expired.

(2) No landlord shall be deemed to require the land comprised in the thika tenant’s holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in such house is, in the opinion of the Controller, reasonably sufficient for him and his family.(3) Where the landlord requires the land comprised in the thika tenant’s holding for his own occupation and the Controller is of opinion that such requirement may be substantially satisfied be ejecting the thika tenant from a part only of his holding and allowing him to continue in occupation of the rest, then, if the thika tenant agrees to such occupation, the Controller shall make an order accordingly and fix the proportionate rent for the portion remaining in the occupation of the thika tenant.(4) Where the thika tenant has erected or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, of such land as does not appertain to the pucca structure.]

4. Notice before ejectment.—It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given thethika tenant notice in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882)

(a) in the case where he wishes to eject the thika tenant on [the ground specified in clause (i) of sub-section (1)] of section 3 at least one month’s notice in writing expiring with the end of a month of the tenancy; and

(b) in the case where he wishes to eject the thika tenant on [the ground specified in clause (if) of sub-section (1)] of section 3 at least three months’ notice in writing expiring with the end of a month of the tenancy :

[Provided that save as otherwise provided in any contract in writings, no thika tenant shall be ejected from his holding on the ground specified in clause (ii) of sub-section (1) of section 3 except on payment to the thika tenant or on depositing with the Controller for payment to the thika tenant such compensation as may be agreed upon between the landlord and the thika tenant or, in the case where they do not agree. as may be determined in the prescribed manner by the Controller on application by the landlord or the thika tenant.

5. Proceedings for ejectment.—(1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject athika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof.(2) No order allowing an application under sub-section (1) shall be made in a case where compensation is payable under [ xxx ] the proviso to section 4 unless and until the amount of compensation so payable has been either paid to the thika tenant or deposited with the Controller.

6. Stay of ejectment for arrears of rent if the amount of arrears and damages are deposited with the Controller.–[ xxx ]

7. Restoration of possession where landlord does not use the land for the purpose for which the thika tenant was ejected.—If an order under section 5 directing a thika tenant to vacate any land comprised in a holding on [the ground specified in clause (ii) of sub-section (1)] of section 3 is made and the landlord who recovers possession of the land as a result of such order does not within six months from the date on which he recovers such possession occupy the land himself [* **] or re-lets it within six months of the said date to any thika tenant other than the previous thika tenant without the permission of the Controller obtained in the prescribed manner, the Controller may on application in writing being made to him in this behalf by the thika tenant from whom the landlord has so recovered possession of the land within nine months from the said date, make an order directing the landlord to restore the thika tenant to possession of the land from such date and subject to such condition as may be specified in the order, or to pay him such compensation as may be fixed by the Controller.[ xxx ]

[7A. Power of the Controller to set aside order for ejectment in certain cases.—(1) Where an order for ejectment of a thika tenant from his holding has been made by the Controller under section 5 before the date of commencement of the Calcutta thika Tenancy (Second Amendment) Act, 1969, but the possession of the land comprised in the holding has not recovered by the landlord from the thika tenant, the thika tenant may, within sixty days from such date, apply to the Controller for setting aside the order.(2) On receipt of an application under sub-section (1) the Controller shall cause a notice thereof to be served on the landlord, and if after considering such evidence as the parties may adduce,—

(a) the Controller is satisfied that the oi 6E.” frr ejectment would have been made agianst the thika tenant even if the Calcutta thika Tenancy (Second Amendment) Act, 1969, had been in force on the date on which such order was made, the Controller shall dismiss the application with such costs as the Controller may allow to the landlord; or

(b) the Controller is satisfied that no order for ejectment would have been against the thika tenant if the Calcutta thika Tenancy (Second Amendment) Act, 1969, had been in force on the date on which such order was made, the Controller shall determine the amount which would have been payable by the thika tenant for the period commencing from such date and ending with the date of the order to be made under this sub-section, if the thika tenant had to pay rent at the rate at which it was last paid during such period and after deducting therefrom all such sums as the thika tenant may have deposited with the Controller or paid to the landlord on account of rent for such period the Controller shall direct the thika tenant, by order, to deposit the remaining amount, together with such further amount as the Controller may allow to the landlord as his costs of the proceeding arising out of the application under sub-section (1) of section 5, within such time, not exceeding sixty days from the date of the order, as the Controller may fix.

(3) If the thika tenant deposits the amounts ordered by the Controller under clause (b) of sub-section (2) within the time fixed by him, the Controller shall allow the application under sub-section (1) and set aside the order of ejectment and dispose of the application of the landlord under sub-section (1) of section 5.(4) If the thika tenant fails to deposit such amounts within such time, his application under sub-section (1) shall be dismissed with such costs as the Controller may award to the landlord.]

8. Surrender.—(1) A thika tenant not bound by any lease or other agreement for a fixed period may, at the end of a month of the tenancy, surrender his holding, provided that he gives to his landlord at least one month before he surrenders, notice of his intention to do so.(2) When a thika tenant has surrendered his holding the landlord may, subject to the provisions of section 10, enter on the holding and either let it to another tenant or occupy it himself or dispose of it in any way he may think fit.

9. Abandonment.—(1) When a thika tenant voluntarily abandons his holding without notice to the landlord and without arranging for the payment of his rent as it falls due, the landlord may, at any time after the expiration of a period of two months from the date of such voluntary abandonment, file the notice referred to in sub-section (2) and subject to the provisions of sub-section (3) and of section 10 enter on the holding and let out the same to another tenant or copy it himself.(2) A landlord who intends to enter on a holding under this section s all file a notice in the prescribed form with the Controller stating that he has treated the holding as abandoned and intends to enter on it accordingly; and the Controller shall within fifteen days from the date on which the notice is so filed cause such notice to be published in the prescribed manner.(3) After the publication of the notice under sub-section (2), the thika tenant may apply to the Controller at any time not later than the expiration of one month from the date of the publication of such notice for the cancellation of such notice and thereupon the Controller may, on being satisfied after such inquiry as he considers necessary that the thika tenant is entitled to continue in possession, cancel the notice and direct that the thikatenant shall continue in possession of the holding subject to payment of the arrears of rent due on the date on which the notice is so cancelled. If the thika tenant does not make any application under this sub-section or his application under this sub-section is rejected, the landlord may enter on the holding subject to the provisions of section 10.

10. Consequences of the determination of interests of thika tenants in certain cases.—(1) Notwithstanding anything to the contrary contained in any contract, on the determination of the interest of a thika tenant in the land comprised in a holding as a result of ejectment from the holding of, or of surrender or abandonment of the holding by, the thika tenant, or otherwise, any structure [standing upon] such land and existing on the date of such determination shall vest in the landlord.(2) When any structure [standing on any holding of a thika tenant] vests in the landlord under sub-section (1) otherwise than as a result of ejectment of the thika tenant from the holding on [the ground specified in clause (ii) of sub-section (1)] of section 3, [any Bharatia in possession of such structure or any part thereof, shall without any application being made] be entitled to continue in such possession and shall be [deemed to be a tenant in respect of such structure or part thereof, as the case may be,] within the meaning of the [West Bengal Premises Tenancy Act, 1956 (West Bengal Act No. 12 of 1956)], holding under the landlord on the terms and conditions on which such Bharatia had been holding immediately before [such structure] vested in the landlordProvided that nothing in this sub-section shall prevent either the landlord or suchBharatia so deemed to be a tenant holding under the landlord, from proceeding under the [West Bengal Premises Tenancy Act, 1956], for fixing the standard rent payable in respect of [such structure or part thereof, as the case may be]

[10A. Right of thika tenant to erect pucca structures.]—(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, but subject to the provisions of sub-sections (2) and (3), a thika tenant using the land comprised in his holding for a residential purpose may erect a pucca structure on such land for such purpose with the previous permission of the Controller.(2) On an application made by a thika tenant in this behalf, the Controller may grant him permission to erect a pucca structure, if the Controller s satisfied that the thika tenant—

(a) is using the structure existing on the land comprised in his holding for a residential purpose,

(b) intends to use the pucca structure to be erected on such land for a similar purpose, and

(c) has obtained sanction of a building plan to erect the pucca structure from the municipal authorities of the area in which such land is situated.

(3) No thika tenant shall be entitled to eject a Bharatia from the structure Df part thereof in the possession of the Bharatia for the purpose of erecting pucca structure :Provided that the thika tenant may by providing temporary alternative accommodation to a Bharatia obtain from him vacant possession of the structure in his possession on condition that immediately on the completion of the construction of the pucca structure the thika tenant shall offer the Bharatia accommodation in the pucca structure at a rent which shall in to case exceed by more than twenty-five per centum the rent which the Bharatia was previously paying.

11. Devolution or transfer of holding of a thika tenant.–[ xxx ]

CHAPTER III

Provisions as to Rent of thika Tenancies

12. Payment of rent.—Any rent or instalment of rent payable by a thika tenant shall be paid, where there is a contract in writing in this behalf between the landlord and the thika tenant, within the time fixed in the contract or, in the absence of any such contract, by the fifteenth day of the month next following the month or period for which the rent is payable.

13. Time and place for payment of rent.—(1) Every thika tenant shall pay or tender rent or each instalment of rent before sunset of the latest day by which it is payable under the provisions of section 12 :Provided that a thika tenant may pay or tender the rent payable for a month or period at any time during such month or period before it falls due.(2) The payment or tender of rent may be made

(i) at the landlord’s local office or at such other convenient place as may be appointed in that behalf by the landlord; or

(ii) by postal money order in the manner prescribed.

A tender may also he made by depositing the rent with the Controller in accordance with the provisions of section 17 or section 18.(3) Any rent or instalment of rent which is not duly paid within the time referred to in section 12 or is not duly deposited with the Controller within the time referred to in section 17 or section 18 shall be deemed to be an arrear.

14. Appropriation of payments.—(1) When a thika tenant makes a payment on account of rent, he may declare the month or period in respect of which he wishes the payment to be credited, and the payment shall be credited accordingly.(2) If he does not make any such declaration, the payment may be credited to the account of such month or period as the landlord thinks fit.

15. thika tenant entitled to receipt for rent.—(1) Every thika tenant who makes a payment on account of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid by him, signed by the landlord.(2) A counterfoil of the receipt shall be prepared and retained by the landlord or his authorised agent.(3) The receipt and counterfoil shall be in such form and shall contain such particulars as may be prescribed.(4) If a receipt does not contain substantially the particulars required by this section, it shall be presumed, until the contrary is shown, to be an acquittance in full of all demands for rent up to the date on which the receipt was given.

16. Penalty for withholding receipts.—if a landlord without reason able cause refuses or neglects to deliver to a thika tenant a receipt containing the particulars required by section 15 for any rent paid by the tenant, the Controller may, on application made in this behalf by the tenant within three months from the date of payment, by order direct the landlord to pay the tenant such penalty not exceeding double the amount of that rent as the Controller thinks fit.

17. Deposit of rent on refusal of the landlord to accept.—(1) Where a landlord refuses to accept any rent the thika tenant may, by an application in writing containing such particulars as may be prescribed,—

(a) deposit such rent with the Controller, within the period specified in sub-section (2), and

(b) unless the landlord signifies by notice in writing to the thika tenant his willingness to accept any subsequent rent which becomes due from such tenant, also deposit such rent with the Controller within the period within which it is payable under the provisions of section 12 [ xxx ].

Explanation.—A landlord shall not for the purposes of this sub-section be deemed to have refused to accept any rent unless the rent is remitted by the thika tenant by postal money order within the time specified and in the manner referred to in section 13 and the rent so remitted is returned to the thika tenant by the postal authorities as undelivered either on account of the landlord having refused to accept payment thereof or for any other cause.[(1a) The application referred to in sub-section (1) shall be accompanied by a copy thereof along with the prescribed fee for sending such copy to the landlord by registered post with acknowledgement due.](2) The deposit referred to in clause (a) of sub-section (1) shall be made within a fortnight of the date on which the rent remitted by postal money order is returned to the thika tenant by the postal authorities as undelivered.

18. Deposit of rent in certain other cases.—(1) In either of the following cases, namely :-

(a) when any rent is payable jointly to two or more co-sharer landlords and the thika tenant is unable to obtain a joint receipt from them for the rent and no person has been empowered to receive the rent on their behalf,

(b) when a dispute has arisen as to the person who is entitled to receive the rent, the thika tenant may by an application in writing containing such particulars as may be prescribed deposit such rent with the Controller and may continue to deposit with the Controller any subsequent rent which becomes due from such tenant until the thika tenant is able to obtain a joint receipt from the co-sharer landlords or a person has been empowered to receive the rent on their behalf, or until such dispute has been settled by the decision of a competent Court or by settlement between the parties, as the case may be.

(2) The deposit of rent referred to in sub-section (1) shall be made within the period within which it is payable under section 13.

19. Receipt granted by the Controller for rent deposited to be a valid acquittance.—If it appears to the Controller to whom application for deposit is made under section 17 or section 18 that the applicant is entitled to deposit the rent under any of those sections, he shall receive the rent deposited and give a receipt for it under the seal of the Court and such receipt shall operate as an acquittance for the amount of the rent payable by the thika tenant and deposited as aforesaid, in the same manner and to the same extent as if the amount of the rent had been receivedin cases referred to in clauses (a) and (b) of sub-section (1) of section 17, by the person specified in the application as the person to whose credit the deposit was to be entered;in cases referred to in clause (a) of sub-section (1) of section 18, by the co-sharers to whom the rent is due; and in cases referred to in clause (b) of sub-section (1) of section 18, by the person entitled to the rent.

[20. Disposal of rent deposited under section 17.—On any deposit being made under section 17, the Controller shall send in the prescribed manner the copy of the application to the landlord and the amount lying in deposit may, in such manner as may be prescribed, be withdrawn by the landlord on application made in that behalf and if such amount is not withdrawn before the expiration of three years from the date of deposit, it may, in the absence of any order of a Civil Court to the contrary, be repaid to the tenant on his application and on his returning the receipt given by the Controller under section 19 :Provided that before passing any order for repayment of the amount to the tenant the Controller shall give a notice to the landlord by registered post at the last known address of such landlord and shall also publish the notice in his office and shall not pass any order for repayment until after the expiry of thirty days from the date of issue of such notice by post. The cost of transmission by post of such notice shall be deducted from the amount in deposit in accordance with such procedure as may be prescribed.]

21. Disposal of rent deposited under section 18.—(1) When the Controller receives a deposit under section 18, he shall forthwith cause to be affixed in a conspicuous place at his office a notification of the receipt thereof containing a statement of all material particulars, and, if the amount of the deposit is not paid away under sub-section (2) within the period of fifteen days next following the date on which the notification is so affixed, the Controller shall forthwith in cases referred to in clause (a) of sub-section (1) of section 18 cause a notice of the receipt of the deposit to be posted free of charge at the landlord’s local office, if any, and at some conspicuous place in the locality in which the holding is situated, and, in cases referred to in clause (b) of sub-section (1) of the said section, cause a like notice to be served from of charge on every person who, he has reason to believe, claims or is entitled to the deposit.(2) The Controller may pay the amount of any deposit notified under sub-section (1) to any person who proves to his satisfaction to be entitled to the same or is entitled to the amount as a result of a settlement referred to in sub-section (1) of section 18 or he may, if he thinks fit, retain the amount pending the decision of a Civil Court as to the person so entitled.(3) If no payment is made under sub-section (2) before the expiration of three years from the date of notice issued under sub-section (1) or three months after the decision of the Civil Court, whichever is later, the amount deposited may in the absence of any order of a Civil Court to the contrary be repaid to the depositor upon his application and on his returning the receipt given by the Controller when the rent was deposited.

22. Saving.—(1) When a landlord accepts rent in respect of any holding sent by postal money order by a thika tenant under clause (ii) of sub section (2) of section 13 or by the Controller under section 21 or with draws any rent deposited under section 17 or section 18, the fact of this acceptance or withdrawal shall not be used in any way as evidence that he has admitted as correct any of the particulars set forth in the postal money order form or in the application for deposit of such rent.(2) No suit, prosecution or other legal proceeding shall be instituted against the [Government] or against any officer of the [Government] in respect of anything done by the Controller receiving a deposit under section 17 or section 18; but nothing in this Act shall prevent any per son entitled to receive any amount so deposited from recovering the same from any person to whom it has been paid under section 20 or section 21.

23. Interest on arrears.—Any arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum from the expiry of the time within which the rent or the instalment of rent is payable under the provisions of section 12 or is to be deposited under section 17 or section 18, as the case may be, to the date of payment or of the institution of the suit, whichever date is earlier.

[23A. Suit for arrears of rent.]—(1) Notwithstanding anything contained in any other law for the time being in force, no suit for the recovery of arrears of rent shall be instituted against a thika tenant unless the thika tenant has defaulted in the payment of rent for more than two months or periods.(2) If in any suit instituted for the recovery of arrears of rent, it appears to the Court that the thika tenant has, without reasonable or probable cause, neglected or refused to pay the amount of rent due by him, the Court may award to the landlord in addition to the amount decreed for rent and costs such damages not exceeding twelve and a half per centum on the amount of rent decreed, as he thinks fit :Provided that interest shall not be decreed when damages are awarded under this section.(3) If in any suit instituted for the recovery of arrears of rent, it appears to the Court that the landlord has instituted the suit without reasonable or probable cause the Court may award to the thika tenant, be way of damages, such sum not exceeding twelve and a half per centum on the whole amount claimed by the landlord as he thinks fit.

23B. Right of landlord to purchase holding in case of execution sale.—(1) Where any land comprised in the holding of a thika tenant is sold in execution of a decree obtained against him, the landlord may, within two months of the date of the sale, apply to the executing Court for the transfer of such land to him.(2) The application shall be dismissed, unless the landlord at the time of making it, deposit in Court the amount of the price for which such land was sold together with compensation at the rate of five per centum of such amount.(3) If such deposit is made the Court shall give the auction-purchaser notice of the application and an opportunity of being heard. If the Court is satisfied that the conditions referred to in sub-section (1) have been fulfilled, the Court shall make an order directing that the deposit made under sub-section (2) shall be paid to the auction-purchaser.(4) From the date of the making of the order under sub-section (3) the right, title and interest in the land comprised in the holding accruing to the auction-purchaser by his purchase at the execution-sale shall be deemed to have vested in the landlord free from any encumbrance which may have been created after the date of such sale and the Court may, on further application of the landlord, place him in possession of the land vested in him.

24. Restrictions on enhancement of rent.—The rent of a thika tenant shall not be enhanced except as provided in this Act.

25. Enhancement of rent.—(1) The rent payable by a thika tenant for his holding may be enhanced by the Controller on application made to the Controller by the landlord in the prescribed manner on either or both of the following grounds, namely :

(a) that the value of the holding has increased;

(b) that the landlord has effected some improvement to the land at his own cost which has increased the value of the holding :

Provided that no rent shall be enhanced under this sub-section so as to exceed the rent previously payable by the thika tenant by more than twelve and a half per centum.(2) The rent fixed under sub-section (1) shall not be further enhanced during three years next following the date on which it has been last so enhanced.

26. Reduction of rent by the Controller.—Any rent payable by a thika tenant which has been settled within a period of three years immediately before the commencement of this Act, may be reduced by the Controller on application made in that behalf by the thika tenant if the Controller considers that the rate of rent so settled is unfair and inequitable having regard to the prevailing rate of rent payable by thika tenants of lands of a similar description and with similar advantages in the locality.

CHAPTER IV

Appeals and Certain Special Procedures

[26A. Power of District Judge and Chief Judge, Court of Small Causes of Calcutta to withdraw and transfer proceeding.—(1) On the application of any of the parties and after noise to the parties and after hearing such of them as desire to be heard, or of his own motion without such notice, the District Judge in the case of the proceeding pending before a Controller appointed for any area within the district, or the Chief Judge of the Court of Small Causes of Calcutta in the case of a proceeding pending before a Controller appointed for any area within the Presidency town of Calcutta, may at any stage withdraw such proceeding and transfer it for hearing or disposal to a Controller appointed for any other area within the district or within the Presidency town of Calcutta, as the case may be, or re transfer it for hearing or disposal to the Controller from whom it was withdrawn.(2) The Controller to whom any proceeding has been transferred under sub-section (1) shall have the same power to hear or dispose of it as the Controller from whom it was withdrawn and may, subject to any special directions in the order of transfer, either rehear it or proceed from the point at which it was withdrawn and transferred.Explanation.—In this section “proceeding” includes any proceeding arising out of an application made to the Controller under the provisions of this Act.]

27. Appeal, review and execution.—(1) Any person aggrieved by an order of the Controller may, within thirty days from the date of the order, present an appeal in writing—

(a) n respect of any holding in the Presidency town of Calcutta, to the Chief Judge of the Court of Small Causes of Calcutta; and

(b) in respect of any holding elsewhere, to the District Judge of the district in which the holding concerning which such order is made is situated.

(2) The State Government may, by notification, appoint any person who has exercised the powers of a District Judge to hear appeals presented under clause (a) of sub-section (1) to the Chief Judge of the Court of Small Causes of Calcutta and may, by notification, also appoint any person who is a judicial officer not below the rank of a subordinate Judge to hear appeals presented under clause (b) of the said sub-section to a District Judge.(3) The Chief Judge of the Court of Small Causes of Calcutta to whom an appeal is presented under clause (a) of sub-section (1) or a District Judge to whom an appeal is presented under clause (b) of that sub-section may transfer such appeal to any person appointed to hear any such appeal under sub-section (2) and may withdraw any appeal so transferred and either hear and dispose of it himself or transfer it to any other person appointed to hear such appeals under sub-section (2).(4) The Chief Judge or the District Judge or any person appointed under sub-section (2) to whom an appeal is transferred under sub-section (3), as the case may be, shall then send for the record of the case from the Controller and after perusing the record and, if necessary, taking such evidence himself or personally making such further inquiries as he thinks fit, shall make an order deciding the appeal after giving the parties an opportunity of being heard.(5) Subject to such rules as may be made under this Act, any order passed under this Act by the Controller, the Chief Judge of the Court of Small Causes of Calcutta, or a District Judge or a person appointed under sub-section (2) may be reviewed by the person who passed the order on the ground of the discovery of any new and important matter or evidence or on account of some mistake or error apparent on the face of the record or for any other sufficient cause :Provided that before any order is passed under the sub-section which is likely to affect any person adversely such person shall be given a reasonable opportunity of being heard.(6) An order under sub-section (4) made by the Chief Judge or the District Judge or a person appointed under sub-section (2), as the case may be, or, subject to such order, –[if any,] an order made by the Controller under this Act, shall, subject to the provisions of sub-section (5), be final and may be executed by the Controller in the manner provided in the Code of Civil Procedure 1908 (5 of 1908), for the execution of decrees.

28. Power of Court to rescind or vary decrees and orders in certain cases.– [ xxx 

29. Application of Act to pending suits and proceedings.— [ xxx ]

30. Bar to application of Act to certain lands.—Nothing in this Act shall apply to-

(a) Government lands,

(b) any land vested in or in the possession of—

(i) the State Government,

(ii) a port authority of a major port, or

(iii) a railway administration, or

(iv) a local authority, or

(c) any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911 (Bengal Act No. 5 of 1911).

31. Restriction or exclusion of Act by agreement.—Nothing in any contract between a landlord and a thika tenant made after the commencement of this Act shall take away or limit the rights of such tenant as provided for by this Act, and any contract which is made in contravention of or which is inconsistent with any of the provisions of this Act shall be void and without effect to the extent of such contravention or inconsistency.

32. Power to enter and inspect premises, to require information and to summon witnesses.—(1) For the purposes of any inquiry under this Act, the Controller and any person deciding an appeal under section 27, may,—

(a) enter and inspect any premises at any time between sunrise and sunset;

(b) authorise any person subordinate to him to enter and inspect any premises between sunrise and sunset; or

(c) by written order require any person to produce for his inspection such accounts, rent receipts, books or other documents relevant to the inquiry at such time and at such place as may be specified in the order :

Provided that no premises shall be entered under clause (a) or clause (b) without the consent of the occupier, unless at least twenty-four hours’ previous notice in writing has been given.(2) The Controller and any person deciding any appeal under section 27 shall, subject to any rules made under this Act and in so far as such powers are necessary for carrying out the provisions of this Act, have power to summon and enforce the attendance of witnesses, including the parties interested, and to compel the production of documents by the same means and, so far as may be, in the same manner as is provided in the case of a Court by the Code of Civil Procedure, 1908 (5 of 1908).

[32A. Thika Tenant may get supply of electricity to the holding and structure thereon without permission of the landlord.– (1) A thikatenant desiring to get supply of electricity from a licensee, as defined in clause (h) of section 2 of the Indian Electricity Act, 1910 (Act 9 of 1910), may, if the landlord, refuses or withholds his consent to such supply, apply to the Controller, setting out the scheme for such supply.(2) On receipt of such application the Controller may, after giving the landlord an opportunity of being heard, permit the thika tenant to get the supply in accordance with the scheme set out in the thika tenant’s application or in accordance with any modified scheme.(3) On such permission being given, the landlord shall be deemed, notwithstanding anything contained in any other law for the time being in force, to have given the requisite consent under sub-section (2) of section 12 of the Indian Electricity Act, 1910, and the licensee shall not be liable to the landlord for trespass for steps taken for supply of electricity according to the said permission.

[32B. Duty of thika tenant to provide essential amenities for Bharatias.—(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, it shall be the duty of every thika tenant to keep the structures let out to Bharatias, in a condition fit for habitation and to make such provisions for water-supply, conservancy and sanitary services as may be considered by the Con¬troller essential, regard being had to the conditions of water-supply, conservancy and sanitary services prevailing in the area in which the holding is situated and the number of Bharatias in possession of the structures.(2) Where the Controller is, on an application filed by a Bharatia, satisfied that any structure let out to the Bharatia is unfit for habitation or that essential provisions for water-supply, conservancy and sanitary services therein have not been made or if made, are not adequate, the Controller shall cause a notice to be served in the prescribed manner on the thika tenant requiring him to carry out within such time as may be specified in the notice, such works as, in his opinion, are necessary for making such structure fit or habitation or for securing such water-supply, conservancy and sanitary services as are essential.(3) If after the service of such notice the thika tenant fails to show cause or neglects to carry out such works within the specified time the Controller may, after giving the thika tenant an opportunity of being heard and after making such inquiries as he may consider necessary, make an order in writing specifying the works to be done and giving an estimate of costs of such works, and get such works executed by such agency as he may consider fit and thereafter all expenses incurred in executing the works together with interest thereon at the rate of six and a quarter per centum per annum from the date on which demand for expenses is made payment, may be recovered by the Controller from the thika tenant as a public demand.]

33. Repeal and saving.—On the expiry of the Calcutta Thika Tenancy Ordinance, 1948 (West Bengal Ord. XI of 1948), the provisions of section 8 of the Bengal General Clauses Act, 1899, shall apply as if it were an enactment then repealed by a West Bengal Act,

34. Rules.—(1) The State Government may, subject to the condition of previous publication, make rules for carrying out the purposes of this Act.(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :

(a) the manner of determination of compensation referred to in the proviso to section 4;

(b) the manner in which a landlord may apply to the Controller and the manner in which the Controller may make inquiries under section 5;

(c) the manner of obtaining permission of the Controller referred to in section 7;

(d) the form of notice and the manner of publication of such notice under sub-section (2) of section 9;

(e) the manner of payment or tender of rent by postal money order referred to in clause (ii) of sub-section (2) of section 13;

(f) the form of receipt and of the counterfoil referred to in sub-section (3) of section 15, and the particulars to be specified in such receipt and counterfoil; the particulars to be contained in applications for depositing rent under sub-section (1) of section 17 and sub-section (1) of section 18;

(h) the manner of sending the copy of the application to the landlord, and of withdrawal by the landlord of the amount in deposit, referred to in section 20 and the procedure for deducting from the amount in deposit the cost of transmission by post of the notice to the landlord, referred to in the proviso to section 20;

(i) the manner of making application for enhancement of rent under sub-section (1) of section 25;

(j) the procedure to be followed in inquiries under this Act, by the Controller, the Chief Judge of the Court of Small Causes of Calcutta, the District Judge and any person appointed under sub¬section (2) of section 27;

(k) the procedure for review of orders referred to in sub-section (5) of section 27;

(l) the procedure for summoning and enforcing the attendance of witnesses and compelling the production of documents referred to in sub-section (2) of section 32;

(m) the manner of service of notices issued under this Act where the mode of such service is not provided in this Act; and

(n) the charging or remitting of costs and fees and the fixing of a scale of costs and fees;

[(o) any other matter which is required to be or may be prescribed.]

CIVIL, LAND

The West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004.

2. Definitions.—In these rules, unless the context otherwise requires,-(a) the Act” means the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (West Bengal Act 32 of 2001);(b) “Form” means a Form appended to these rules;(c) “section” means a section of the Act.
3. Terms and conditions of occupation of land directly under the State under sub-section (1) of section 5.—(1) Every thika tenant occupying land under a landlord on the 18th day of January, 1982 or on any subsequent date of creation of tenancies of thika tenant, shall, after that date, occupy such land directly under the State on the following terms and conditions:(a) every thika tenant shall furnish to the Controller a return in Form A, separately for each holding or tenancy, showing the particulars of occupation of such land in total, within two hundred forty days from the date of commencement of the Act. The Controller may, on a written application from such thika tenant, extend the date of furnishing such return by a period not exceeding sixty days :Provided that the Controller may, on reasonable grounds, accept any return which is filed by a thika tenant after the expiry of the aforesaid time limit :
Provided further that the thika tenants who already have submitted return in Form A under the Kolkata ThikaTenancy (Acquisition and Regulation) Rules, 1982, shalt not be required to submit any further return in that respect and such returns shall be deemed to have been submitted validly under these rules ;
(b) every thika tenant shall pay, as required under sub-sections (2) and (6) of section 5 of the Act, to the Controller an annual revenue or rent in the manner and at the rate mentioned in rule 19.
(2) Every thika tenant, in addition to the revenue, shall pay to the Controller all cesses, taxes of municipality or other local bodies, or other impositions or service charges which are, or may hereafter be, imposed on the land with or without structures including easements, if any, or other existing or intended creation on such land being used by thika tenant.
4. Manner of application for obtaining prior permission and disposal of such application under sub-section (4) of section 5.– (1) An application, stating the circumstances and grounds for transfer of interests in the land inter se amongst the heirs existing co-shares-interest and spouses or to the prospective heirs, may be made to the Controller for obtaining his prior permission and the procedure laid down in rule 5, shall apply, mutatis mutandis, to the manner of making and disposal of such application :Provided that such application shall be made at least three months prior to the date of transfer to interests in the land, or within such further period as may be extended by the Controller subject to payment of rupees one hundred as late fee to be deposited in T.R. Form, for every month of delay or part thereof :Provided further that if no such prior permission has been or was obtained, in respect of any transfer of interest in land made on or after the 18th January, 1982, a penalty of a sum not exceeding the value of 1/4% of the market value of such land shall be deposited in T.R. Form, by the thika tenant to regularise such transfer as provided in sub-section (4) of section 5 of the Act.
(2) When the State Government needs land comprised in any thika tenancy for any public purpose, the Controller or any other officer authorised by him, may—(a) require the thika tenant to surrender his tenancy in writing the Controller after giving the thika tenant at least 30 days’ notice;(b) passed an order in writing for resumption of land comprised in such thika tenancy, after giving the thikatenant and the Bharatia, if any, an opportunity of being heard;(c) upon such resumption under clause (b), if the thika tenant or any Bharatia continues to occupy such land, evict the occupant and the Controller or any other officer authorised by him may, after giving 30 days’ notice, enter the land and the buildings or other erections, thereon, if any, and take vacant possession thereof.
(3) A thika tenant, whose interest in land comprised in any thika tenancy is resumed by the State, may claim compensation to be determined and calculated in the following manner :(a) the Controller of the area concerned shall, with the assistance of any technical officer under him, if any, first determine the market value of the land, with or without structures. If there is no such officer under him, the Land Acquisition Collector having jurisdiction over such area shall, upon a requisition in writing from the Controller in this behalf, lend the services of a technical officer under him to the Controller for determination of the market value of such land. While determining such market value, all relevant documents and circumstances shall be taken into consideration;(b) the amount shall be calculated at a rate not exceeding ten times the annual rent paid by Bharatias and shall be reduced by (apart from rents, taxes and other charges on account of management and collection at a rate of twenty per cent of the gross annual rent earned or expected) rent, taxes and revenues or other dues payable to the Central Government or the State Government;(c) the amount for the purpose of the proviso to sub-section (4) of section 6 shall be the market value determined under clause (a) or the amount calculated under clause (b), whichever is less.
(4) Where any structure comprised in any thika tenancy is occupied by the tenant himself, the amount of compensation payable shall be 10 times the expected annual rent if such structure had been let out, to be determined having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar premises in the locality, having regard also to the rent payable in respect of such premises and after giving the tenant a reasonable opportunity of being heard and shall be such as will appear to the Controller to be reasonable.
5. Manner and disposal of application to obtain no objection certificate for making any pucca construction, etc., under sub-section (5) of section 5.—(1) Every application for obtaining no objection certificate from the Controller for making. any pucca construction or changing the nature, character and dimension of an existing structure on the land, shall be in Form D in quadruplicate along with an application fee of Rs. 200/- in respect of such land measuring no more than 4 kathas in area and an additional fee of Rs. 100/- for one katha or fraction thereof in excess of 4 kathas. The application fees shall be deposited in T.R. Challan.
(2)(a) The application shall accompany two sets of site plan, in a scale not less than 1 : 200, showing the existing structure and boundaries and two sets of plan showing the floor plan, section, elevation etc., in accordance with the Kolkata Municipal Corporation Building Rules, and must be signed by the L.B.S. or the L.B.A.Existing structure in the site plan shall be shown and delineated in yellow colour, proposed structure in red colour, boundaries in the black dotted line, roads in green colour and service lines in red dotted lines.(b) All the particulars as required under the Kolkata Municipal Corporation Building Rules shall be furnished in such plans :
Provided that a copy of the finally sanctioned plan by the Kolkata Municipal Corporation, which is duly authenticated by the L.B.S. or the L.B.A. and after it has been sanctioned, shall be submitted forthwith to the Controller :
Provided further that a copy of the completion certificate certifying the completion of the pucca construction after it has been constructed shall be submitted forthwith to the Controller.
(c) The procedure for obtaining no objection certificate before making pucca construction shall, mutatis mutandis be followed in case of changing the nature, character and dimension of any existing structure on land comprised in thika tenancy.
(3) The same procedure shall apply and be followed in case of thika land situated within the jurisdiction of other Corporation, Municipality or any other local authority.
6. Manner of payment of fees and rates in case where the pucca construction has been made without no objection certificate and procedure for issue of provisional and final certificate under subsection (3) of section 6.—(1) An application for issue of provisional certificate under sub-section (3) of section 6, shall be in accordance with the procedure prescribed by sub-rule (2) of rule 5 and shall be accompanied by an application fee equivalent to ten times the fees mentioned in sub-rule (1) of rule 5 and is to be deposited in T.R. Challan along with such application, in addition to the fees prescribed in sub-rule (1) of rule 5.
(2) A construction plan duly sanctioned by the local authority shall be produced within three months from the date of issue of such provisional certificate failing which no final certificate shall be issued by the Controller :
Provided that the Controller may, for reasons to be recorded in writing and upon being satisfied that there is sufficient reason for delay, extend the time for production of such sanctioned plan by not more than one month.
7. Procedure in case of contravention of the provision of the Act or the rules.—(1) The Controller or any officer authorised in this behalf by the State Government or the Controller may, after giving 24 hours’ notice, enter upon the land or any part thereof to inspect or enquire into the condition of the land, or the structures or other erections thereon, if any, or inspect and enquire about any structure, building or erection thereon in the course of its construction ‘or making and for all other reasonable purposes.
(2) If there is any breach of, or non-compliance with, any of the terms and conditions as aforesaid or the provision of the Act or these rules, the thika tenant shall, in addition to any other penalty or disqualification to which he may be subject under the Act or the rules, forfeit his right of occupation of the land, with effect from the date on which an order in this behalf is made in writing by the Controller after giving him a reasonable opportunity of being heard.
(3) Upon such forfeiture, the occupant shall be treated as a trespasser and the Controller or any officer authorised by him may, after giving 3 days’ notice, enter the land, building or other erections therein, if any, and take vacant possession thereof.
8. Manner of application by a Bharatia for granting licence under sub-section (5) of section 6.—(1) ABharatia who stays at the structure forfeited under sub-section (2) of section 6, may submit an application on plain paper to the Controller for granting licence for his occupancy.
(2) The Controller, on receiving such application and after an enquiry in respect of the Bharatia’s claim on the area of the structure he occupies, condition of the room and verification of the present rate, may, after giving an opportunity of being heard to all concerned, issue licence in Form E on the following terms and conditions :(a) licence fees at the rate of Rs. 1.00 (one rupee) per square feet per month or the prevailing rate, whichever is higher, shall be chargeable in case of kuccha structure for domestic purpose;(b) licence fees at the rate of Rs, 2/- per square feet per month or the prevailing rate, whichever is higher, shall be chargeable in case of pucca structure for domestic purpose;(c) in case of use of such structure for business purposes, the licence fees shall be Rs. 4/- and Rs. 2/- respectively in pucca or kuccha structure, as the case may be;(d) initially the licence shall be issued for one year and may be renewed every year on due satisfaction of the Controller and upon realisation of licence fees in arrears, if any, together with 6.25% per annum interest thereon.
(3) The licence fees shall be deposited in T.R. Challan and the Bharatia shall also pay for the occupation and use of such structure apart from the service and other charges, taxes of the Corporation or Municipality or other local body, whose services are being availed of by him.(4) The licence granted to a Bharatia may be renewed upon an application made by him, at least one month before the expiry of the validity of the licence, to the Controller, on plain paper together with the proof of up-to-date deposit of licence fees :Provided that an application for renewal of such licence may be entertained after the prescribed period, if the applicant satisfies the Controller that he had sufficient cause for not making the application within such period.
9. Submission of return for the purpose of payment under subsection (1) of section 7.—For the purpose of payment of amount under sub-section (1) of section 7, every landlord shall submit to the Controller a return in Form C within two hundred and forty days from the date of commencement of the Act. The Controller may, on a written application from the landlord, extend the date for furnishing the return by a further period not exceeding sixty days :Provided that the Controller may, on reasonable grounds, accept any return which may be filed by the landlord after expiry of the prescribed time limit :
Provided further that the landlords who have already submitted the return in Form C under the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Bengal Act No. 37 of 1981), shall not be required to submit any further return and such return shall be deemed to have been validly submitted under these rules.
10. Payment of annuity under sub-section (2) of section 7.—(1) The annuity payable under sub-section (2) of section 7, shall not exceed the annual net income derived from the holding.(2) The annual net income derived from the holding shall, subject to the provisions of sub-section (4) of section 5, be determined in the following manner :(a) the gross income derived from the holding shall first be determined;(b) upon determination of the gross income, apart from the deductions from the gross income under sub-section (2) of section 7 of charges on account of management and collection at the rate of twenty per cent of the gross income, it shall be reduced by rent, taxes’ and revenue or other dues, if any, payable to the State Government or the Central Government;(c) the balance, if any, after deduction as aforesaid, shall be the annual net income for the purpose of sub-section (2) of section 7.
11. Payment of amount and determination of fair rent under subsection (6) of section 7.—(1) The amount payable under sub-section (6) of section 7, for resumption under sub-section (4) of section 6 of any structure comprised in any thika tenancy, shall be determined and calculated in the following manner :(a) the Controller of the area concerned shall, with the assistance of any technical officer under him, if any, first determine the market value of the structure. If there is no such officer under him, the Land Acquisition Collector having jurisdiction over such area shall, upon a requisition in writing from the Controller in this behalf, lend the services of a technical officer under him to the Controller for determination of the market value of the structure. While determining the market value, all relevant documents and circumstances shall be taken into consideration after giving due opportunity to all concerned;(b) thereafter, the amount shall be calculated at a rate not exceeding ten times the annual rent paid by the Bharatias to the tenant and shall be reduced by rent, taxes and revenue or other dues payable to the Central Government or the State Government apart from rent, taxes and other charges on account of management and collection at a rate of twenty per cent of the gross annual rent;(c) the amount for the purpose of sub-section (6) of section 7 shall be the market value determined under clause (a) or the amount calculated under clause (b), whichever is less.(2) Where any structure is occupied by the tenant himself, the fair rent determined by the Controller under sub-section (6) of section 7 shall be deemed to be the annual rent paid by Bharatias. The fair rent shall, however, be determined having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the rent payable in respect of such premises and after giving the tenant a reasonable opportunity of being heard, and shall be such as will appear to the Controller to be reasonable.
12. Appointment under sub-section (7) of section 7.—Where there are more than one landlord in respect of athika tenancy vested under section 4, the amount payable to them under sub-section (1) of section 7 or annuity payable to them under sub-section (2) of section 7 shall be apportioned among them by the Controller in the following manner :(a) where the landlords agree in writing as to their respective shares, the Controller shall apportion the amount among them according to such agreed share;(b) where the landlords do not agree in writing as to their respective shares, the Controller shall, having regard to the documents, affidavits and other evidence, if any, produced before him, make such apportionment as will appear to him to be reasonable;(c) where the Controller fails to make any apportionment under clause (b), he shall withhold the apportionment until the dispute as regards the shares of the landlord is decided by a court having jurisdiction.
13. Manner of disposal of dispute regarding payment of rent by the thika tenant or by a Bharatia or any case of eviction of Bharatia under sub-section (3) of section 8.—(1) On receiving,(a) any application in Form B from a thika tenant or a Bharatia or any other person; or(b) any information, in writing, in regard to any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and, if necessary, by conducting a spot inquiry.(2) Any dispute, relating to eviction of a Bharatia, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and after taking into account the provisions laid down in Chapter III of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997), as subsequently amended and the rules framed thereunder.
14. Manner of eviction or otherwise penalisation of a thika tenant in default of payment of rent to the State Government under subsection (4) of section 8.—If a thika tenant has defaulted in paying rent, the Controller may, after giving such thika tenant an opportunity of being heard, order him to pay the rent with interest and with or without penalty, within such time as the Controller may decide and in default, a proceeding may be drawn in this respect against such thika tenant and after giving him an opportunity of being heard and, if necessary, after an inquiry, the structure shall be vested in the State and the thika tenant may be declared as trespasser and be evicted accordingly by issuing a notice for such eviction directing compliance within a specified date. After expiry of such date, the Controller may evict the thika tenant from such premises and if necessary, may require the help of the police authority for the purpose.
15. Rate of rent payable by a Bharatia to a thika tenant or to the Controller under sub-section (7) of section 8 and sub-section (8) of section 8.—(1) A Bharatia shall be liable to pay rent under sub-section (7) of section 8 to the thika tenant at the following rate against issue of valid and printed receipt :(a) Rs. 1.00 (one rupee) per square feet per month, in case of kuccha structure for domestic purposes or the present rate at which the Bharatia is paying rent to the thika tenant, whichever is higher;(b) Rs. 2/- per square feet per month, in case of pucca structure for domestic purposes or the present rate, whichever is higher;(c) in case the structure is used for business purposes, the rate of rent shall be Rs. 2/- or Rs. 4/- in kuccha or pucca structure, as the case may be.(2) In case where there is no thika tenant, a Bharatia shall be liable to deposit rent under sub-section (8) of section 8 at the rate as provided in rule 8 of these rules as if such Bharatia has obtained a licence under sub-section (5) of section 6 and he will be liable to pay rent as a licensee.
16. Continuation of tenancies of Bharatias under a thika tenant and the manner of making application under sub-section (2) of section 10 and other matters incidental thereto under sub-sections (3), (4) and (5) of section 10.—(1) If a thika tenant fails to restitute a Bharatia in similar accommodation in the reconstructed structure as provided in sub-section (2) of section 10, or if a dispute of similar nature exists between thika tenant and a Bharatia, the Bharatia may make an application stating the material facts, events and information with supporting documents in Form B, with as many copies as there are parties on whom notices are to be served.(2) On receiving such application, the Controller shall dispose of the matter in accordance with the provisions of sub-sections (3), (4) and (5) of section 10 after taking into account the provisions laid down in Chapter V of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997) as subsequently amended and the rules framed thereunder.(3) Any order of the Controller under sub-rule (2) shall be deemed to be an order within the meaning of clause (t) of section 11 and shall, without prejudice to the provisions of rule 27, be executed accordingly.
17. Manner of review under sub-section (2) of section 12.—An order passed by the West Bengal Land Reforms and Tenancy Tribunal and against which no appeal has been preferred, may be reviewed by it on an application made by any party within 30 days from the date of such order, in the manner prescribed in the Code of Civil Procedure, 1908, on the ground of discovery of new matter or evidence or on the ground of error apparent on the face of record, after giving the concerned parties an opportunity of being heard :Provided that the time taken to obtain certified copy of the order sought to be reviewed, shall be excluded for the purpose of computing the above mentioned period of limitation prescribed for making an application for review.
18. Manner of maintenance, preparation and revision of record of-rights under section 23.—(1) Subject to the provision of the Act and these rules, the provisions of the West Bengal Land Reforms Act, 1955 (West Bengal Act No. 10 of 1956), as amended from time to time, relating to the maintenance, preparation and revision of record-of-rights shall apply, mutatis mutandis, for the purposes of this Act.(2) On receiving any application or otherwise, the Controller may, after giving an opportunity of being heard to all concerned and if necessary, by conducting an on-the-spot enquiry, make a change in the record-of rights on account of mutation or substitution of names as a result of transfer under sub-section (4) of section 5 or inheritance or partition of the holdings or consolidation or forfeiture of interests of thika tenant or resumption or settlement under section 25 or otherwise.(3) A fee for Rs. 10/- (Rupees ten) shall be payable along with every application for change in the record-of-rights.(4) Such change in the record-of-rights shall be informed by the person in whose favour the change has been effected to the local authority and the Collector of the area for necessary correction in their respective records.(5) The records maintained in the office of the Collector of local authority, if any may be consulted for the maintenance, preparation and revision of record-of-rights and a copy of such records may be made available to an interested party, on requisition in this respect and upon payment of such requisite fee as prescribed under rule 23.
19. Rate of monthly revenue payable by a thika tenant or tenant of other lands holding directly under State Government under subsection (1) of section 24 and rate of enhancement of the monthly revenue under sub-section (2) of section 24.—(1) The rate of revenue payable to the State Government by a thika tenant or tenant of other lands holding directly under the State under sub-section (1) of section 24 shall be as follows :(a) rent for kuccha structure used for domestic purpose, shall be payable at the rate of Rs. 10.00 (Rupees ten) per katha per month; where the prevailing rate is higher it will continue;(b) rent for kuccha structure used for business purpose including commerce and industry, shall be payable at the rate of Rs. 20.00 (Rupees twenty) per katha per month; where the prevailing rate is higher it will continue :Provided that where the kuccha structures in a single holding are being used for both domestic and business purposes, respective rates shall be applicable for respective use for the area of such structure, for domestic or business purpose, as the case may be;(c) rent of pucca, and pucca-multistoried, structure used for domestic purposes, shall be payable at the rate of Rs. 15.00 (Rupees fifteen) per katha per month for and upto the first two stories and an additional fee Rs. 15.00 (Rupees fifteen) per katha per month shall be payable for floor area of each subsequent and additional floor;(d) rent for pucca, and pucca-multistoried, structures used for business purpose including commerce and industry, shall be payable at the rate of Rs. 30.00 (Rupees thirty) per katha per month for and upto the first two stories and an additional fee of Rs. 100.00 (Rupees one hundred) per katha per month shall be payable for floor area of each subsequent and additional floor :Provided that where the pucca and pucca multi-storied, structures in a single holding are being used for both domestic and business purposes, respective rates shall be applicable proportionately for respective use of the area of such structure, for domestic or business purpose, as the case may be :Provided further that the rent shall be payable monthly or quarterly or half-yearly or annually through T.R.Challan and the arrear of revenue, if any, shall bear simple interest at the rate of 6.25 per cent per annum from the date of which the revenue falls due till the date of its payment :Provided also that the arrear of revenue, if any, shall be recoverable as a Public Demand.
20. Terms, conditions and manner of making use of or settling with any person or authority, any land or structure under section 25.—Any land or structure vested in, or resumed by, the State under the Act for public purpose, may be made use of, or settled with any person or authority for sub-serving the common good on the terms and conditions and in the manner laid down in the West Bengal Land and Land Reforms Manual, 1991, as amended from time to time and the provisions of which shall apply mutatis mutandis, to the use or settlement of such land or structure under section 25 of the Act.
21. Miscellaneous and supplementary.—Every notice required to be served under the Act or these rules shall be served by registered post with acknowledgement due or where the procedure as aforesaid cannot be effected or is not feasible, in such manner as is provided for service of a process of revenue of a civil court.
22. Coming into force of rents, revenues and fees prescribed in these rules.—Rents, revenues and fees prescribed in these rules shall be effective from the date of notification of the Act in terms of sub-section (3) of section 123. Fees for making applications and for copies.—(1) A fee of rupees two shall be payable for every application made under the Act or these rules.(2) Such application may be presented by the applicant himself or by his agent, duly authorised by him in writing. The applicant and the opposite party may be represented by agent duly authorised in writing :Provided that if the person representing a party is a legal practitioner and holds a Vakalatnama from the party on his behalf, on separate authorisation shall be necessary. Such Vakalatnama may, however, be cancelled on a prayer of the party.(3) Fees for copies shall be payable as follows(a) the fee chargeable for a certified copy of any application or order of any proceeding shall be rupees five :
Provided that when an application is made at the same time for certified copies of the application, written statement, order and document of the same proceedings or case, there shall be charged a consolidated fee of rupees ten for all of them;(b) the fee chargeable for a certified copy of notes of evidence or order or judgment or written statement or document, shall be rupees five plus rupees two for a folio of ninety words :Provided that when an application is made at the same time for certified copy of at least two or more items of notes of evidence, order, judgment, written statement and document of the same case, a consolidated fee of rupees ten plus rupees two for a folio of ninety words shall be charged :Provided further that if the copy exceeds four folios, an additional fee of rupee one for each extra folio shall be payable;(c) if an application is made for obtaining certified copy of records and documents maintained in the office of the Collector or local authority in relation to maintenance, preparation and revision of record-of-rights, the fee for such certified copy shall be five plus rupees two for a folio of ninety words shall be charged :
Provided that if the copy exceeds five folios, extra charge of rupee one for each extra folio shall be payable;(d) if the Head of any Department or Directorate of the Central or the State Government applies to the Controller or to the Appellate Authority for a certified copy of any final order of the Controller or of the Appellate Authority, as the case may be, for any public purpose, a certified copy of such order shall be granted to such applicant on plain paper only, free of cost.(4) In the matter of granting copies of records written in languages other than in English and Bengali, the procedure laid down in the Civil Rules and Orders for the guidance of Civil Courts and officers subordinate to the High Court at Calcutta shall be followed with modifications as may be necessary.(5) While applying for copies of maps or plans, the applicant shall file with the application requisite fees for application for certified copies and necessary tracing papers for such copies. The cost of copies of such maps or plans shall be assessed by the Controller in such manner as he may think fit.
24. Searching and other fees.—(1) A searching fee of rupees five shall be payable for every application for each of the following items :(a) for information whether a record is available in the record-room or not :Provided that it shall be necessary to make a separate application with separate fee for any information required in connection with every separate cause or separate matter;(b) for inspection where the record is deposited in the record-room :Provided that such fee shall also be charged for inspection of records of pending case by advocates and legal practitioners. (2) A process fee at the rate of rupees five in respect of every party on whom a notice is to be served under the Act shall be paid.
25. Fee for affidavit.—An affidavit sworn in before the Controller shall be charged with a fee equivalent to the stamp-duty payable under article 4 of Schedule 1A to the Indian Stamp Act, 1899 (2 of 1899).
26. Mode of payment of fees.—Any fee payable under these rules shall, unless otherwise expressly provided in these rules, be paid in court-fee stamps.

27. Assistance of the Police, District Administration and local authority.—(1) For the purpose of enforcing delivery of possession of any land or structure or for evicting any person in actual occupation of any land or structure as may be necessary under the Act, the Controller may send a written requisition to the Officer-in-Charge of the local police station or to any police officer superior to such Officer-in-Charge and on receipt of such written requisition, the Officer-in-Charge or the police officer as aforesaid shall render all necessary and lawful assistance for enforcing delivery of possession of such land or structure or for evicting any person in actual occupation of such land or structure.(2) If there is any law and order problem or any technical or documentary problem, the Controller may seek assistance, in writing, from the Collector, the District Administration and any local authority and on receiving such written communication, the Collector, the District Administration and the local authority shall render necessary and lawful assistance as required by the Controller.

Form “A”[See clause (a) of sub-rule (1) of rule 3]

Form of Return for Occupation of land to be furnished to the Controller

1. (a) Name(s) of thika tenant(s) :
(b) Name(s) of father/husband :
2. Name(s) of landlords(s) with address(es) :
3. Description of the land under tenancy-
(a) Address with municipal or other holding number or plot no. with name of mouza J.L. No., P.S. Etc. :
(b) Area in cottahs and in square metres :
(c) butted and bounded by. on the North
on the East
on the South
on the West
4. Particulars of the tenancy-
(a) date of commencement (certified/xerox/attested copies of documentary evidence to be enclosed. :
(b) Amount if periodical rent (state the period). If receipts were granted, a xerox attested copy of the receipt for rent last paid to be enclosed :
5. Description of the structure on the land-
(a) Whether the structures were raised by the thika tenant, if so, the date and cost of construction thereof. :
(b) Whether any part of structures was raise or improved by CDMA or any other authority if so, details. :
© Details of structures :
(d) Measurements :
6. Particulars of each of the Bhartias–
(a) Name :
(b) Name of father/husband :
©. (c) Area under occupation in square metres or square feet or both. :
(d) Amount of rent (true copy of counterfoil of last rent receipts to be enclosed). :
7. Whether the <i>thika</i> tenant holds any other land/land with building in Kolkata or Howrah or other municipal areas.
State Yes/No.
If yes, state the following particulars—
(a) Address with municipal holding number etc. :
(b) Held as owner/thika tenant/otherwise :
(c) Area (in cottahs and/or square metres) :
8. Particulars of suits/legal proceedings, if any, in respect of thika tenancy :
9. Remarks :
10. List of documents enclosed
(vide items 4, 6 etc.)
(a) :
(b) :
(c) :
(d) :

I hereby declare that the particulars furnished in this declaration are correct, complete and true to the best of my knowledge and belief and no part of it is wrong or false.Dated :
Address:Signature or left thumb impression
of the thinka tenant.N.B. : Separate returns should be furnished for each thika tenancy held by the person submitting the return, with a copy of such return to be submitted by such return to be submitted by such person to every other Controller within whose jurisdiction such person holds any other land as thika tenant.Form “B”[See sub-rule (1) of rule 13 / sub-rule (1) of rule 16]Application to the Controller for deciding disputeToSir,I/We beg to state that I/We have been Bharatia/s in respect of the building/structure described in the schedule hereunder in municipal holding No…………………..within Ward No……………………………….. of the Corporation/Municipality of being premises No………………….under thethikatenant/Shri/Shrimati………………………….residing at from the………………..day of the month of………………of the year ………………..I/We have been paying monthly rent of Rs………………. for the said building/structure to the saidthika tenant. Receipt/s was/were not granted to me for rents paid by me/us. (If there were other terms and conditions, state the same here.)2. (Then State whether you have been unlawfully evicted or the building/structure has ceased to exist. Give details with dates.)3. (If there is any dispute under section 10(2), give the facts with dates and all particulars here.)4. (Here state the relief prayed for.)Schedule(Give detailed description of the land, building/structure with area of land and measurement of building/structure).I/We hereby declare that to the best of my/our knowledge and belief the above information given by me/us is correct,, complete and true and no part of it is wrong or false.Signature or left thumb impression
of the Bharatia

Form “C”(See rule 9)Form of Return to be submitted to the State Government

1. (a) Name of landlord :
(b) Name of father/husband :
(c) Address(es) :
(d) Name and addresses of other persons, if any, having interest in such lands and the nature of such interest :
2. Particulars of land/lands under thika tenancy/other tenancy
(a) Postal address(es) and municipal/other holding number(s) to identify the land(s) :
(b) Total area in cottahs or square metres or both :
(c) Total No. of thika tenants/ other tenants :
(d) Total rent realised per month/year :
(e) Any other income from the land :
3. Particulars of each of the thika tenant(s)/other tenant(s)—
(a) Name :
(b) Postal address of the thika tenant /other tenant :
(c) Holding No. in occupation of thika tenant/other tenant :
(d) Area in occupation :
(e) Date of commencement of tenancy (enclose certified/attested xerox copies of documentary :
(f) Rate of rent per month/year (enclose true copy of counterfoil of last rent receipt, if receipts were (granted) :
(g) Particulars of suits/legal proceedings, if any, in respect of the land :
4. Remarks :
5. List of documents enclosed-
(a) certified/xerox/attested of title document proving the title to the land :
(a) :
(b) :
(c) :

I hereby declare that above information given by me is correct, complete and true to the best of my knowledge and belief and no part of it is wrong or false.Dated, theSignature or left thumb impression
of the landlord

N.B.: (i) Information against item 2 should furnished for each holding separately, if there are thika tenancies under the landlord in different holdings in a Corporation/Municipality.(ii) Area, rent, etc. shown in item 2 should tally with the total area, etc. shown in item 3.(iii) The return should be submitted in duplicate, to the office of the Controller, Kolkata or Howrah or other Corporation or Municipality as the case may be.(iv) If a landlord has thika tenancies on his lands in Howrah and Kolkata and other Corporation/Municipality separate returns are to be submitted in the Offices of the Controller’s of Howrah and Kolkata or other Corporation/Municipality.(v) Attach extra sheets, if necessary to furnish particulars against items 2 and 3. The information should be given for each thika tenant (item 3) separately but in the same return.

Form “D”[See sub-rule (1) of rule 5 ]Application for permission to construct pucca structure/building or to change the nature, character and dimension of a structure, on the land comprised in thika tenancies.

1. (a) Name and address of the thika/tenant/tenants :
(b) Description of land— :
(i) Premises No. and Ward :
(ii) portion/entire :
(iii) area :
(c) Type and overall measurement of the existing structure :
(d) Type and overall measurement of the proposed building/ construction :
(e) Number of floor and flat with each floor space :
(f) Purpose and use of the existing structure :
(g) Purpose of the proposed building :
(h) Total no. of Bharatias in the existing structure :
(i) (i) Total area (floor space in SFT) occupied by those Bharatias :
(j) (j) Number of bath and privies in the existing structure :
(k) Number of bath and water closets in the proposed building :
(l) What proportion of area (floor space in SFT) has been marked out in the proposed building for the use of the Bharatias :
(m) Whether applicant resides in the existing structure :
(n) Approximate time period to be taken for completion of construction :
(o) Form “A” Receipt No. :
(p) Xerox copies of Ground rent deposit since 18.01.1982 :
(q) Declaration of Court cases litigation, if any, one the land/premises :
(r) Xerox copy of last paid K.M.C. Tax Bills :
(s) Approximate cost of construction :
(t) The sources of fund :
(u) Other information, if any :

Signature of thika tenant/tenantsForm “E”[See sub-rule (2) of rule 8Licence for the occupation of structure for faitedNo……………..
Dated…………..The licence under sub-section (5) of section 6 of the West Bengal thika Tenancy (Acquisition and Regulation) Act, 2001 (West Bengal Act 32 of 2001), read with sub-rule (2) of rule 10 of the West Bengal thika Tenancy (Acquisition and Regulation) Rules, 2004, is hereby granted to Shri/Shrimati……………………S/D//H/W/O……………………..(name with full address and other details) for the occupation of ……………… (details of structure) in the premises…………….subject to the provisions particularly sub-section (4) of section 5 of the said Act and the rules made thereunder and such licence shall expire on………………..(2) The licence fees are fixed at Rs. …………………(in words)………………………………………………………. per month payable monthly/quarterly/half-yearly failing which an interest @ 6.25% will be charged for non-payment within that year.(3) The service and other charges or taxes of the Corporation/ Municipality or other authorities whose services are being availed of by the licensee, shall be payable for the occupation/use of such structure.Controller
thika TenancyNo………………….
Dated………………….Copy forwarded for information and necessary action to :-(1) Sri/Srimati…………….(Name of the Licensee)(2) Deputy Secretary, Land and Land Reforms Department, Government of West Bengal, Writers’ Buildings, Kolkata-700 001.(3) The Commissioner/Executive Officer…………..Corporation/Municipality.Controller
thika TennacyReceived the copy of licence abiding by the terms and conditions laid down herein and to be laid down from time to time by the State Government.Full Signature of theBharatia
Address :………………….By order of the Governor,
Sd/- Sukumar Das
Secy. to the Govt. of West Bengal

LAND

 Bengal Tenancy Act, 1885

1. Short title.
2. Repeal.
3. Definitions.
4. Classes of tenants.
5. Meaning of “tenure-holder” and “raiyat”.
6. Tenure held since Permanent Settlement liable to enhancement only in certain cases.
7. Limits of enhancement of rent of tenures.
8. Power to order progressive enhancement.
9. Rent once enhanced may not be altered for fifteen years.
10. Permanent tenure-holder not liable to ejectment.
11. Transfer and transmission of permanent tenure.
12. Voluntary transfer of permanent tenure.
13. Transfer of permanent tenure by sale in execution of decree other than decree for rent.
14. Transfer of permanent tenure by sale in execution of decree for rent.
15. Succession to permanent tenure.
16. Bar to recovery of rent, pending notice of succession.
16A. Interpretation.
17. Transfer of, and succession to, share in permanent tenure.
18. Incidents of holdings at fixed rates.
18B. Saving as to acceptance of landlord’s fees.
18C. Forfeiture of unclaimed landlord’s fees.
19. Continuance of existing occupancy-rights.
20. Definition of “settled raiyat”.
21. Settled raiyats to have occupancy-rights.
22. Effect of acquisition of occupancy-right by landlord.
23. Rights of raiyat in respect of use of land.
23A. Rights of occupancy-raiyat and landlord in trees.
24. Obligation of raiyat to pay rent.
25. Protection from eviction except on specified grounds.
26. Devolution of occupancy-right on death.
26A. Application of sections 26B to 26J.
26B. Holdings of occupancy-raiyats with occupancy-rights transferable.
26C. Manner of transfer and notices to landlord and co-sharers.
26D. Landlord’s transfer fee.
26E. Procedure on sale in execution of a decree, certificate or foreclosure of mortgage.
26F. Power of co-sharer of transfer or to purchase.
26G. Limitation on mortgage by occupancy-raiyat.
26H. Transfer of rent-free holdings.
26I. Interpretation and savings.
26J. Landlord’s transfer fee with compensation in certain cases of transfer.
27. Presumption as to fair and equitable rent.
28. Restriction on enhancement of money rents.
29. Enhancement of rent by contract.
30. Enhancement of rent by suit.
31. Rules as to enhancement on ground of prevailing rate.
31A. What may be taken in certain districts to be the “prevailing rate”.
31B. Limit to enhancement of prevailing rate.
32. Rules as to enhancement on ground of rise in prices.
33. Rules as to enhancement on ground of landlord’s improvement.
34. Rules as to enhancement on ground of increase in productive powers due to fluvial action.
35. Enhancement by suit to be fair and equitable.
36. Power to order progressive enhancement.
37. Limitation of right to bring successive enhancement suits.
38. Reduction of rent.
39. Price-lists of staple food-crops.
40. Commutation of rent payable in kind.
40A. Period for which commuted rents are to remain unaltered.
41. Application of Chapter.
42. Initial rent of non-occupancy-raiyat.
43. Conditions of enhancement of rent.
44. Grounds on which non-occupancy-raiyatmay be ejected.
45. Conditions of ejectment on ground of expiration of lease.
46. ConditAct No. 1 ofions of ejectment on ground of refusal to agree to enhancement.
47. Explanation of “admitted to occupation”.
47A. Application of Chapter VII to under-raiyats.
48. Liability of under-raiyat to pay rent.
48A. Enhancement of rent of under-raiyat.
48B. Enhancement by contract.
48C. Ejectment of under-raiyat.
48D. Enhancement by suit.
48E. Application for restitution by under-raiyat.
48F. Incidents of holding of under-raiyat.
48G. Occupancy-rights of under-raiyat.
48H. Provision as to salami.
49. Mortgage by under-raiyat.
49A. Application of Chapter.
49B. Restrictions on transfer of tenant rights.
49C. Lease by tenure-holder.
49D. Sub-letting by raiyat.
49E. Usufructuary mortgage by tenure-holder, raiyat or underraiyat.
49F. Application to Collector for transfer in certain cases.
49G. Courts not to register, or recognise as valid, transfers in contravention of this Chapter.
49H. Power to Collector to set aside improper transfers by tenure-holder, raiyat or under-raiyat.
49J. Resettlement of certain tenancies.
49K. Restriction on the sale of tenant’s rights under order of Court.
49L. Stay of execution of decrees.
49M. Appeal and revision.
49N. Bar to suits.
49-O. Saving of certain transfers.
50. Rules and presumptions as to fixity of rent.
51. Presumption as to amount of rent and conditions of holding.
52. Alteration of rent in respect of alteration in area.
53. Instalments of rent.
54. Time and place for payment of rent.
55. Appropriation of payments.
56. Tenant making payment of his landlord entitled to a receipt.
57. Tenant entitled to full discharge or statement of account at close of year.
58. Penalties and fine for withholding receipts and statements of accounts and failing to keep counterparts.
59. State Government to prepare forms of receipt and account.
60. Effect of receipt by registered proprietor, manager or mortgagee.
61. Application to deposit rent in Court.
62. Receipt granted by Court for rent deposited to be a valid acquittance.
63. Procedure for payment to the landlord of rent deposited.
64. Payment of refund of deposit.
64A. Penalty for refusing to receive rent tendered by postal money-order or deposited.
65. Liability to sale for arrears in case of permanent tenure, holding at fixed rates or occupancy-holding.
66. Ejectment for arrears in other cases.
67. Interest on arrears.
68. Power to award damages on rent withheld without reasonable cause, or to defendant improperly sued for rent.
69. Order for appraising or dividing produce.
70. Procedure where officers appointed.
71. Rights and liabilities as to possessions of crop.
72. Tenant not liable to transferee of landlord’s interest or rent paid to former landlord, without notice of the transfer.
73. Liability for rent before transfer of occupancy-holding.
74. Abwab, etc., illegal.
74A. Fine for realisation of abwab, etc.
75. Penalty for exaction by landlord from tenant of sum in excess of the rent payable.
75A. Suspension of provisions relating to enhancement of rent.
76. Definition of “improvement”.
77. Right to make improvements in case of holding at fixed rates and occupancy holding.
78. Collector to decide question as to right to make improvement, etc.
79. Right to make improvements in case of non-occupancy holding.
80. Registration of landlord’s improvements.
81. Application to record evidence as to improvement.
82. Compensation for raiyats’ or under-raiyats” improvements.
83. Principle on which compensation is to be estimated.
84. Acquisition of land for building and other purposes.
85. Restrictions on sub-letting.
85A. Surrender by tenure-holders.
86. Surrender.
86A. Abatement of rent on account of dilution and re-entry into loads which re-appear.
87. Abandonment.
88. Division of tenancy not valid unless consented to by all parties or ordered by Civil Court.
89. No ejectment except in execution of decree.
90. Landlord’s right to measure land.
91. Power for Court to order tenant to attend and point out boundaries.
92. Standard of measurement.
93. Power to call upon co-owners to show cause why they should not appoint a common manager.
94. Power to order them to appoint a manager if cause is not shown.
95. Power to appoint manager if order is not obeyed.
96. Power to nominate person to act in all cases under clause (b) of section 95.
97. The Court of Wards Act, 1879, applicable to management by Court of Wards.
98. Provisions applicable to manager.
99. Power to restore management to co-owners.
99A. Appointment of common agent.
100. Power to make rules.
101. Power to order survey and preparation of record-of-rights.
102. Particulars to be recorded.
102A. Power to order survey and preparation of record-of-rights as to water.
103. Power for Revenue-officer to record particulars on application of proprietor, tenure-holder or large proportion of raiyats’.
103A. Preliminary publication, amendment and final publication of record-of-rights.
103B. Certificate of, and presumption as to, final publication and presumption as to correctness, of record-of-rights.
104. Settlement of rents and preparation of Settlement Rent-roll when to be undertaken by Revenue-officer.
104A. Procedure for settlement of rents and preparation of Settlement Rent-roll under this Part.
104B. Contents of Table of Rates.
104C. Application of Table of Rates.
104D. Rules and principles to be followed in framing Table of Rates and settling rents in accordance therewith.
104E. Preliminary publication and amendment of Settlement Rent-roll.
104F. Final revision of Settlement Rent-roll, and incorporation of the same in the record-of-rights.
104G. Appeal to, and revision by, superior Revenue authorities.
104H. Jurisdiction of Civil Courts in matters relating to rent.
104J. Presumptions as to rents settled under sections 104A to 104G.
105. Settlement of rents by Revenue-officer in cases where a settlement of land revenue is not being or is not about to be made.
105A. Decision of questions arising during the course of settlement of rents under this Part.
105B. Court-fees for raising an issue under section 105A.
105C. Costs not to be awarded ordinarily in proceedings under section 105 by Revenue-officer.
106. Institution of suit before a Revenue-officer.
107. Procedure to be adopted by Revenue-officer.
108. Revision by Revenue-officer.
108A. Correction by Revenue-officer of mistakes in record-of-rights.
109. Bar to jurisdiction of Civil Courts.
109A. Appeals from decisions of Revenue-officers.
109B. Power of Revenue-officer to presume that agreements or compromises are lawful.
109C. Power to Revenue-officer to settle rents on agreement.
109D. Note of decisions on record.
110. Date from which settled rent takes effect.
111. Stay of proceedings in Civil Court during preparation of record-of•rights.
111A. Limitation of jurisdiction of Civil Courts in matters, other than rent, relating to record-of-rights.
111B. Stay of suits in which certain issues arise.
112. Power to authorise special settlement in special cases.
113. Periods for which rents as settled are to remain unaltered.
114. Expenses of proceedings under this Chapter.
115A. Demarcation of village boundaries.
115B. Correction by Revenue-officer of mistakes in record-of-rights.
115C. Appeals from decisions of Revenue-officers.
116. Saving as to certain lands.
117. Power for State Government to order survey and record of proprietor’s private lands.
118. Power for Revenue-officer to record private land on application of proprietor for tenant.
119. Procedure for recording private land.
120. Rules for determination of proprietor’s private land.
121 to 142.
143. Power to modify Civil Procedure Code in its application to landlord and tenant suits.
144. Jurisdiction in proceedings under Act.
145. Naibs or gumashtas to be recognised agents.
146. Special register of suits.
146A. Joint and several liability for rent of co-sharer tenants in a tenure or holding.
146B. Procedure in rent suit against co-sharer tenants in a tenure or holding.
147. Successive rent suits.
147A. Compromise of suits between landlord and tenant.
147B. Regard to be had by Civil Courts to entries in record-of-rights.
148. Procedure in rent suits.
148A. Power of co-sharer landlord to sue for rent in respect of his share in a tenure or holding against the tenure or holding on making remaining co-sharers parties.
149. Payment into Court of money admitted to be due to third person.
150. Payment into Court of money admitted to be due to landlord.
151. Provision as to payment of portion of money.
152. Court to grant receipt.
153. Appeals in rent suits.
153A. Deposit on application to set aside ex-parte decree.
154. Date from which decree for enhancement takes effect.
155. Relief against forfeitures.
156. Rights of ejected raiyats’ or under-raiyats’ in respect of crops and land prepared for sowing.
157. Power for Court to fix fair rent as alternative to ejectment.
158. Application to determine incidents of tenancy.
158. to 158AAA.
159. General powers of purchaser as to avoidance of incumbrances.
160. Protected interests.
161. Meaning of “incumbrance” and “registered and notified incumbrance”.
162. Application for sale of tenure or holding.
163. Combined order of attachment and proclamation of sale to be issued.
164. Sale of tenure or holding subject to registered and notified incumbrances, and effect thereof.
165. Sale of tenure or holding ‘with power to avoid all incumbrances, and effect thereof.
166. Sale of occupancy-holding with power to avoid all incumbrances, and effect thereof.
167. Procedure for annulling incumbrances under sections 164, 165 or 166.
168. Power to direct that occupancy-holding be dealt with under sections 159 to 167 as tenures.
168A. Attachment and sale of tenure or holding for arrears of rent due thereon, and liability of purchasers thereof.
169. Rules for disposal of the sale-proceeds.
170. Tenure or holding to be released from attachment only on payment into Court of amount of decree, with costs, or on confession of satisfaction by decree-holder.
171. Amount paid into Court to prevent sale to be in certain cases a mortgage-debt on the tenure or holding.
172. Inferior tenant paying into Court may deduct from rent.
173. Decree-holder may bid at sale; judgment-debtor may not.
174. Application to set aside sale.
174A. Sale when to become absolute or of be set aside, and return of purchase money in certain cases.
175. Registration of certain instruments creating incumbrances.
176. Notification of incumbrances to landlord.
177. Power to create incumbrances not extended.
178. Restrictions on exclusion of Act by agreement.
179. Permanent mukarrari leases.
180. Utbandi, chur and dearah lands.
180A. Fixing of uniform annual money rent in respect of utbandi lands.
180B. Lands in respect of which a uniform annual money rent has been fixed under section 180A to cease to be utbandi lands.
180C. Period for which rent fixed under section 180A to remain unaltered.
181. Saving as to service tenures.
182. Homesteads.
183. Saving of custom.
184. Limitation in suits, appeals and applications in Schedule III.
185. Portions of the Indian Limitation Act not applicable to such suits, etc., mentioned in Schedule III.
186. Penalties for illegal interference with produce.
186A. Damages for denial of landlord’s title.
187. Power for landlord to act through agent.
188. Action to be taken collectively by co-sharer landlord or by their common agents except in certain cases.
188A. Procedure in suits by joint landlords.
189. Power to make rules regarding procedure, powers of officers and service of notices.
190. Procedure for making publication and confirmation of rules.
191. Settlement of rent of land held in a district not permanently settled.
192. Power to alter rent in case of new assessment of revenue.
193. Rights of pasturage, forest-rights, etc.
194. Tenant not enabled by Act to violate conditions binding on landlord.
195. Savings for special enactments.
195A. Protection in certain cases for acts done.
196. Act to be read subject to Acts hereafter passed by Lieutenant-Governor of Bengal in Council.

line

Bengal Tenancy Act, 1885

Act VIII of 1885

006

[14th March, 1885]

Supplemented : Bengal Act No. 3 of 1895.

Repealed in Part and Amended : Act No. 38 of 1920; Bengal Act No. 1 of 1907; Bengal Act No. 4 of 1928; Bengal Act No. 2 of 1930 and E. B. & A. Act No. 1 of 1908.

Adapted : The Government of India (Adaptation of Indian Laws) Order, 1937; the Indian Independence (Adaptation of Bengal and Punjab Acts) Order, 1948 and the Adaptation of Laws Order, 1950.An Act to amend and consolidate certain enactments relating to the Law of Landlord and Tenant within the territories under the administration of the Lieutenant-Governor of Bengal.Whereas it is expedient to amend and consolidate certain enactments relating to the law of Landlord and Tenant within the territories under the administration of the Lieutenant-Governor of Bengal.It is hereby enacted as follows :—

PreliminaryCHAPTER I

  1. Short title.— (1) This Act may be called the Bengal Tenancy Act, 1885.(2)Commencement. — It shall come into force on such date (hereinafter called the commencement of this Act) as the State Government, with the previous sanction of the Central Government, may, by notification in the Official Gazette, appoint in this behalf.(3) Local extent. — It extends by its own operation to the whole of West Bengal, except —

(i) Calcutta, that is to say, the area described in Schedule I to the Calcutta Municipal Act, 1923, but excluding the area added to Calcutta as defined in clause (i) of section 3 of that Act;

(ii) (a) the area added to Calcutta as defined in clause (1) of section 3 of the Calcutta Municipal Act, 1923, or any part thereof; and

(b) any area or part of any area included in Calcutta by notification under sub-section (3) of section 543 of that Act,

if such area or part is specified in a notification made in this behalf by the State Government;

(iii) any area constituted a municipality under the provisions of the Bengal Municipal Act, 1932, or part thereof, if such area or part is specified in a notification made in this behalf by the State Government :

Provided that a notification under this clause shall be no bar to the operation of this Act in respect of agricultural lands situated within the area specified in such notification; and

(iv) the Scheduled Districts specified in the Part III of the First Schedule to the Scheduled Districts Act, 1874 :

Provided that no notification shall be issued under clause (ii) or clause (iii) of this sub-section, unless—

(a) it is previously published in the area concerned or part thereof in the prescribed manner; and

(b) both Chambers of the State Legislature, by a resolution recommend that the notification be issued.

  1. Repeal.— (1) The enactments specified in Schedule I hereto annexed are repealed in the territories to which this Act extends by its own operation.(2) Any enactment or document referring to any enactment hereby repealed shall be construed to refer to this Act or to the corresponding portion thereof.(3) The repeal of any enactment by this Act shall not revive any right, privilege, matter or thing not in force or existing at the commencement of this Act.

3. Definitions.— In this Act, unless there is something repugnant in the subject or context,—

(1) “Agricultural year” means the Bengali year commencing on the first day of Baisakh :Provided that where, immediately before the commencement of the Bengal Tenancy (Amendment) Act, 1928, any other year has prevailed for agricultural purposes that year shall continue to prevail for those purposes until the first day of Baisakh next following the date of the commencement of that Act;

(2) “Collector” means the Collector of a district or any other officer appointed by the State Government to discharge any of the functions of a Collector under this Act;

(3) “complete usufructuary mortgage” means a transfer by a tenant 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;

(4) “estate” means land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes Government khas mahalsand revenue-free lands not entered in any register;

(5) “holding” means a parcel of land or an undivided share thereof, held by a raiyat or an under-raiyat and forming the subject of a separate tenancy whether the raiyat or under-raiyat has held the land before or after the commencement of the Bengal Tenancy (Amendment) Act, 1928;

(6) “landlord” means a person immediately under whom a tenant holds, and includes the Government;

(7) “pay”, “payable” and “payment” used with reference to rent, include “deliver”, “deliverable” and “delivery”;(8) “Permanent Settlement” means the Permanent Settlement of Bengal made in the year 1793;(9) “permanent tenure” means a tenure which is heritable and which is not held for a limited time;

(10) “prescribed” means prescribed by rules made by the State Government under this Act;(11) “proprietor” means a person owning whether in trust or for his own benefit, an estate or a part of an estate;

(12) “registered” means registered under any Act for the time being in force for the registration of documents;

(13) “rent” means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant :In sections 53 to 68, both inclusive, sections 72 to 75, both inclusive, Chapter XIV and Schedule III of this Act, “rent” includes also money recoverable under any enactment for the time being in force as if it was rent;

(14) “Revenue-officer” in any provision of this Act includes any officer whom the State Government may appoint by name or by virtue of his office to discharge any of the functions of a Revenue-officer under that provision;

(15) “signed” includes “marked” when the person making the mark is unable to write his name, it also includes “stamped” with the name of the person referred to;

(16) “succession” includes both intestate and testamentary succession;

(17) “tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person :Provided that a person who, under the system generally known as “adhi”, “barga” or “bhag”, cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless—

(i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or

(ii) he has been or is held by a Civil Court to be a tenant;

(18) “tenure” means the interest of a tenure-holder or an under-tenure-holder;(19) “village” means the area defined, surveyed and recorded as a distinct and separate village in—

(a) the general land revenue survey which has been made of the State of West Bengal, or

(b) any survey made by the Government which has been adopted by notification in the Calcutta or Eastern Bengal and Assam and Gazette or which may be adopted by notification in the Calcutta Gazette, as defining villages for the purposes of this clause in any specified area; and where a survey has not been made by, or under the authority of, the Government, such area as the Collector may, with the sanction of the Board of Revenue, by general or special order, declare to constitute a village :

Provided that, when an order has been made under section 101 directing that a survey be made and a record-of-rights prepared in respect of any local area, estate, tenure or part thereof, the Government may, by notification in the Official Gazette, declare that in such local area, estate, tenure or part thereof “village” shall mean the area which for the purposes of such survey and record-of-rights may be adopted by the Revenue-officer with the sanction of the Board of Revenue accorded under the provisions of section 115A as the unit of survey and record.

CHAPTER II

Classes of Tenants
  1. Classes of tenants.— There shall be, for the purpose of this Act, the following classes of tenants, (namely) :—(1) tenure-holders, including under-tenure-holders,(2)raiyats, and(3) under-raiyats, that is to say, tenants holding whether immediately or mediately under-raiyats; and the following classes of raiyats, namely :—

(a) raiyats holding at fixed rates, which expression means raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity,

(b) occupancy-raiyats, that is to say, raiyats having a right of occupancy in the land held by them, and

(c) non-occupancy-raiyats, that is to say, raiyats not having such a right of occupancy.

  1. Meaning of “tenure-holder” and”raiyat”.— (1) “Tenure-holder” means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors-in-interest of persons who have acquired such a right.(2) “Raiyat” means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by servants or labourers, or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right.Explanation.—Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it.(3) A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder.(4) In determining whether a tenant is a tenure-holder or a raiyat, the Court shall have regard to —

(a) local custom; and

(b) the purpose for which the right of tenancy was originally acquired.

(5) Where the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder until the contrary is shown.

CHAPTER III

Tenure-holders

Enhancement of rent

  1. Tenure held since Permanent Settlement liable to enhancement only in certain cases.— Where a tenure has been held from the time of the Permanent Settlement, its rent shall not be liable to enhancement except on proof—

(a) that the landlord under whom it is held is entitled to enhance the rent thereof either by local custom or by the conditions under which the tenure is held, or

(b) that the tenure-holder, by receiving reductions, of his rent, otherwise than on account of a diminution of the area of the tenure, has subjected himself to the payment affording it.

  1. Limits of enhancement of rent of tenures.— (1) Where the rent of a tenure-holder is liable to enhancement, it may, subject to any contract between the parties, be enhanced up to the limit of the customary rate payable by persons holding similar tenures in the vicinity.(2) Where no such customary rate exists, it may, subject as aforesaid, be enhanced up to such limit as the Court thinks fair and equitable.(3) In determining what is fair and equitable, the Court shall not leave to the tenure-holder as profit less than 10per cent of the balance which remains after deducting from the gross rents payable to him the expenses of collecting them, and shall have regard to—

(a) the circumstances under which the tenure was created, for instance, whether the land comprised in the tenure, or a great portion of it, was first brought under cultivation by the agency or at the expense of the tenure-holder or his predecessors-in-interest, whether any fine or premium was paid on the creation of the tenure, and whether the tenure was originally created at a specially low rent for the purpose of reclamation; and

(b) the improvements, if any, made by the tenure-holder or his predecessors-in-interest.

(4) If the tenure-holder himself occupies any portion of the land included in the area of his tenure, or has made a grant of any portion of the land either rent-free or at a beneficial rent, a fair and equitable rent shall be calculated for that portion and included in the gross rents aforesaid.

8. Power to order progressive enhancement. — If it thinks that an immediate increase of rent would produce hardship, the Court may direct that the enhancement shall take effect gradually at such times and by such instalments extending over a period not exceeding ten years as the Court may fix in this behalf.

9. Rent once enhanced may not be altered for fifteen years. —When the rent of a tenure-holder has been enhanced by the Court or by contract, it shall not be again enhanced by the Court during the fifteen years next following the date on which it has been so enhanced and for the purposes of this section, if an order for gradual enhancement of such rent has been made by a Court in accordance with the provisions of section 8, the full rent fixed by such order shall be deemed to have come into effect from the date of such order.

Other incidents of tenures

  1. Permanent tenure-holder not liable to ejectment.— A holder of a permanent tenure shall not be ejected by his landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected :Provided that where the contract is made after the commencement of this Act, the condition is consistent with the provisions of this Act.

11. Transfer and transmission of permanent tenure.— Every permanent tenure shall, subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property.

12. Voluntary transfer of permanent tenure. — (1) A transfer of a permanent tenure by sale, gift or mortgage (other than a transfer by sale in execution of a decree or by summary sale under any law relating to patni or other tenures) can be made only by a registered instrument.(2) A registering officer shall not accept for registration any instrument purporting or operating to transfer by sale, gift or usufructuary mortgage a permanent tenure in favour of any person other than the sole landlord of such tenure unless there is paid to him, in addition to any fees payable under the Act for the time being in force for the registration of documents, a process-fee of the prescribed amount and there is filed in the prescribed manner with the instrument a notice of transfer in the prescribed form for service thereof on the landlord or his common agent, if any.(3) When any such instrument is admitted to registration, the registering officer shall cause the notice of transfer referred to in sub-section (2) to be served on the landlord named in the notice or his common agent, if any, in the prescribed manner.(4) Omitted

13. Transfer of permanent tenure by sale in execution of decree other than decree for rent. — (1) When a permanent tenure is sold in execution of a decree other than a decree for arrears of rent due in respect thereof, or when a mortgage of a permanent tenure, other than an usufructuary mortgage thereof, is foreclosed, the Court shall, before confirming the sale under Rule 92 of Order XXI in Schedule I to the Code of Civil Procedure, 1908 or making a decree or order absolute for the foreclosure, require the purchaser or mortgagee to pay into Court such process fee as may be prescribed and also to file in the prescribed manner in the Court a notice of the sale or final foreclosure in the prescribed form for service thereof on the landlord or his common agent, if any.(2) When the sale has been confirmed or the decree or order absolute for foreclosure has been made, the Court shall cause the notice referred to in sub-section (1) to be served on the landlord named in the notice or his common agent, if any, in the prescribed manner.

14. Transfer of permanent tenure by sale in execution of decree for rent. — Repealed in Western Bengal by s. 2 of the Bengal Tenancy (Amendment) Act, 1907 (Bengal Act No. 1 of 1907), and in Eastern Bengal by s. 2 of the Eastern Bengal and Assam Tenancy Amendment Act, 1908 (E. B. & A. Act No. 1 of 1908).

15. Succession to permanent tenure. — When a succession to a permanent tenure takes place, the person succeeding shall give notice of the succession to the landlord or his common agent if any, in the prescribed form within six months from the date of succession, in addition to or substitution of any other mode of service, in the manner referred to in sub-section (3) of section 12 :Provided that where, at the instance of the person succeeding, mutation is made in the rent-roll of the landlord within six months of the succession, the person succeeding shall not be required to give notice under this section.

16. Bar to recovery of rent, pending notice of succession. — A person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit or other proceeding any rent payable to him as the holder of the tenure, until the duties imposed upon him by section 15 have been performed.

16A. Interpretation. — In sections 13, 15 and 16 the words “persons succeeding”, “transferee” “purchaser”, “mortgagee” and “person becoming entitled to a permanent tenure by succession” include the successors-in interest of such persons, but do not include the landlord where he is the sole landlord.

17. Transfer of, and succession to, share in permanent tenure. — Subject to the provisions of section 88, sections 12, 13, 15 16 and 16A shall apply to the transfer of, or succession to, a share in a permanent tenure.

CHAPTER IV

Raiyats holding at fixed rates

  1. Incidents of holdings at fixed rates.— (1) Araiyat holding at a rent, or rate of rent, fixed in perpetuity—

(a) shall be subject to the same provisions with respect to the transfer of, and succession to, his holding as the holder of a permanent tenure;

(b) shall not be ejected by his landlord except on the ground that he has broken a condition consistent with the provisions of this Act, and on breach of which he is, under the terms of a contract between himself and his landlord, liable to be ejected;

(c) shall be deemed to be a settled raiyat of the village if he complies with the conditions set forth in section 20; and

(d) shall be entitled—

(i) to plant,

(ii) to enjoy the flowers, fruits and other products of,

(iii) to fell, and

(iv) to utilise or dispose of the timber of, any tree on the land comprised in his holding.

(2) The provisions of sections 23A to 38 (both inclusive) shall not apply to raiyats holding at fixed rates, even though such raiyats have a right of occupancy in the lands of their holdings.

CHAPTER IV A

Provisions as to transfers of tenures and holdings and landlord’s fees

18A. Saving as to statements instruments of transfer where land lord is no party. — Notwithstanding anything contained in section 13 of the Indian Evidence Act, 1872 nothing contained in any instrument of transfer to which the landlord is not a party shall be evidence against the landlord of the permanence, the amount or fixity of rent, the area, the transferability or any incident of any tenure or holding referred to in such instrument.

18B. Saving as to acceptance of landlord’s fees. — The acceptance by a landlord of the landlord’s fee payable under Chapter III or Chapter IV in respect of any tenure or holding shall not operate —

(a) as an admission of the permanence, the amount of fixity of rent, the area, the transferability or any incident of such tenure or holding, or

(b) as an express consent under section 88 to the division of such tenure or holding or to the distribution of the rent payable in respect thereof.

18C. Forfeiture of unclaimed landlord’s fees. — All landlord’s fees and landlord’s transfer fees deposited with the Collector before or after the commencement of the Bengal Tenancy (Amendment) Act, 1928, under Chapter III, IV or V, and all fees deposited with the Collector under sub-section (1) of section 48H, shall unless accepted or claimed by the landlord within five years from the date of service of notice, be forfeited to the Government.

CHAPTER V

Occupancy-raiyats

General

  1. Continuance of existing occupancy-rights.— (1) Everyraiyat who, immediately before the commencement of the Bengal Tenancy (Amendment) Act, 1928, has, by the operation of any enactment by custom or otherwise, a right of occupancy in any land, shall, when that Act comes into force, have a right of occupancy in that land.(2) The exclusion from the operation of this Act, by a notification under clause (ii), clause (iii) of sub-section (3) of section 1, of any area or part of any area referred to in those clauses shall not affect any right,obligation, or liability, previously acquired, incurred or accrued, in reference to such area or part thereof.

 

20. Definition of “settled raiyat”. — (1) Every person who for a period of twelve years, whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled riayat of that village.(1A) A person shall be deemed, for the purposes of this section, to have continuously held land in a village, notwithstanding that such village was defined, surveyed and recorded as, or declared to constitute a village at a date subsequent to the commencement of the said period of twelve years.(2) A person shall be deemed for the purposes of this section to have continuously held land in a village notwithstanding that the particular land held by him has been different at different times.(3) A person shall be deemed, for the purposes of this section, to have held as a raiyat any land held as a raiyat by a person whose heir he is.(4) Land held by two or more co-sharers as a raiyati holding shall be deemed, for the purposes of this section, to have been held as a raiyat by each such co-sharer.(5) A person shall continue to be a settled raiyat of a village as long as he holds any land as a raiyat in that village and for one year thereafter.(6) If a raiyat recovers possession of land under section 87, he shall be deemed to have continued to be a settled raiyat notwithstanding his having been out of possession more than a year.(7) If, in any proceeding under this Act, it is proved or admitted that a person holds any land as a raiyat, it shall, as between him and the landlord under whom he holds the land, be presumed for the purposes of this section, until the contrary is proved or admitted, that he has for twelve years continuously held that land or some part of it as a raiyat.

21. Settled raiyats to have occupancy-rights. — (1) Every person who is a settled raiyat of a village within the meaning of section 20 shall have a right of occupancy in all land for the time being held by him as a raiyat in that village.(2) Every person who, being a settled raiyat of a village within the meaning of section 20, held land as a raiyat in that village at any time between the second day of March, 1883, and the commencement of this Act, shall be deemed to have acquired a right of occupancy in that land under the law then in force; but nothing in this sub-section shall affect any decree or order passed by a Court before the commencement of this Act.

22. Effect of acquisition of occupancy-right by landlord. — (1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or in any other way whatsoever, such person shall have no right to hold the land as a raiyat, but shall hold it as a proprietor or a permanent tenure-holder, as the case may be, but nothing in this sub-section shall prejudicially affect the rights of any third person.(2) Nothing in this section shall prevent the acquisition by transfer, succession or in any other way whatsoever, of the holding of an occupancy-raiyat or share or portion thereof together with the occupancy-rights therein by a person who is, or becomes, jointly interested in the lands as a proprietor or a permanent tenure-holder :Provided that a co-sharer landlord who purchases a holding of a raiyat at a sale in execution of a rent decree or of a certificate under this Act shall not hold the land comprised in such holding as a raiyat but shall hold the land as a proprietor or tenure-holder, as the case may be, and shall pay to his co-sharers a fair and equitable sum for the use and occupation of the same. The rent payable by the raiyat to the other co-sharer landlords at the time of transfer shall be regarded as the fair and equitable sum until otherwise determined in accordance with the principles of this Act regulating the enhancement or reduction of the rents of occupancy-raiyats.(3) A person holding land as a temporary tenure-holder or farmer of rents shall not, while so holding, acquire a right to hold as a raiyat any land comprised in his temporary tenure or farm.Explanation.— A person having a right to hold the lands of an occupancy holding as a raiyat does not lose it by subsequently holding the land as a temporary tenure-holder or farmer of rents.

Incidents of occupancy-right

  1. Rights ofraiyatin respect of use of land. — When a raiyat has a right of occupancy in respect of any land, he may use the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy.23A. Rights of occupancy-raiyat and landlord in trees. — Subject to the provisions of section 23, when a raiyat has a right of occupancy in respect of any land, he shall be entitled—

(i) to plant,

(ii) to enjoy the flowers, fruits and other products of,

(iii) to fell, and

(iv) to utilise or dispose of the timber of, any tree on such land.

  1. Obligation ofraiyatto pay rent. — An occupancy-raiyat shall pay rent for his holding at fair and equitable rates.25. Protection from eviction except on specified grounds. — An occupancy-raiyat shall not be ejected by his landlord from his holding, except in execution of a decree for ejectment passed on the ground—

(a) that he has used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy, or

(b) that he has broken a condition consistent with the provisions of this Act, and on breach of which he is, under the terms of a contract between himself and his landlord, liable to be ejected.

  1. Devolution of occupancy-right on death.— If araiyat dies intestate in respect of a right of occupancy, it shall, subject to any custom to the contrary, descend in the same manner as other immovable property : provided that, in any case in which under the law of inheritance to which theraiyat is subject his other property goes to the Government, his right of occupancy shall be extinguished.26A. Application of sections 26B to 26J. — Repealed by s. 3 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).

26B. Holdings of occupancy-raiyats with occupancy-rights transferable. — The holding of an occupancy-raiyat or share or a portion thereof, together with the right of occupancy therein, shall, subject to the provisions of this Act, be capable of being transferred in the same manner and to the same extent as other immovable property.

26C. Manner of transfer and notices to landlord and co-sharers. — (I) Every transfer shall be made by registered instrument, except in the cases of a bequest or a sale in execution of a decree or of a certificate signed under the Bengal Public Demands Recovery Act, 1913; and a registering officer shall not accept for registration any such instrument unless the sale price, or where there is no sale price, the value of the holding or portion or share thereof transferred is stated therein, and unless it is accompanied in the prescribed manner by—

(i) a notice giving particulars of the transfer in the prescribed form, together with the process fee prescribed for the service thereof on the landlord or landlords or their common agent, if any, who is or are not party or parties to the transfer, and

(ii) such notices and process fees as may be required by sub-section (4).

(2) In the case of a bequest of such a holding or portion or share thereof, no Court shall grant probate or letters of administration until the applicant files in the prescribed manner a notice and deposits a process fee similar to those referred to in clause (i) of sub-section (1).(3) A Court or Revenue-officer shall not confirm the sale of such a holding or portion or share thereof put to sale in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913, and no Court shall make a decree or order absolute for foreclosure of a mortgage of such a holding or portion or share thereof, until the purchaser or the mortgagee, as the case may be, files in the prescribed manner a notice or notices and deposits a process fee or fees similar to those referred to in sub-section (1).(4) If the transfer of a portion or share of such a holding be one to which the provisions of sub-section (1) of section 26F apply, there shall be filed in the prescribed manner notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all the co-sharer tenants of the said holding who are not parties to the transfer.(5) The Court. Revenue-officer or registering officer, as the case may be, shall, in the prescribed manner, serve the notices for which this section provides, and after receipt of such notice, the landlord or landlord’s agent, as the case may be, shall not refuse to recognise the transferee as the tenant in respect of the holding or portion or share thereof transferred nor omit to enter the transferee’s name in the landlord’s rent-roll in place of that of the transferor or where only a share or a portion of the transferor’s interest has been transferred, along with the name of the transferor :Provided that such recognition shall not operate as an admission of the amount of rent or the area or any incident of such occupancy holding other than the existence of a right of occupancy therein or be deemed to constitute an express consent of the landlord to the division of the holding or to the distribution of the rent payable in respect thereof :Provided further that if a transfer is subsequently set aside or modified by a competent authority, the party in whose favour such order has been made shall, unless such order has been passed in a suit, appeal or other proceedings to which the landlord was a party, deposit with the authority before whom the appropriate suit or proceeding was first initiated the prescribed fee for a notice on the landlord or his common agent, if any, describing the modifications made by such order, on receipt of which notice the landlord shall cause his rent-roll to be corrected accordingly.(6) In this section —

(a) “transferee”, “purchaser” and “mortgagee” include their successors-in-interest,

(b) “transfer” does not include partition or a lease, or, until a decree or order absolute for foreclosure is made, simple or usufructuary mortgage or mortgage by conditional sale, and

(c) “transferor” includes a person whose interest in a holding or portion or share thereof has terminated in the circumstances mentioned in sub-section (2) or sub-section (3).

26D. Landlord’s transfer fee. — Repealed by section 5 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).26E. Procedure on sale in execution of a decree, certificate or foreclosure of mortgage. — Repealed by section 5 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).26F. Power of co-sharer of transfer or to purchase. — (1) Except in the case of—

(a) a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, or

(b) a transfer by exchange, lease, or partition, or

(c) a transfer by bequest, or gift (including heba but excluding heba-bil-ewaz for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or

(d) a wakf in accordance with the provisions of the Muhammadan Law, or

(e) a dedication for religious or charitable purposes without any reservation of pecuniary benefit for any individual, one or more co-sharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of the notice under section 26C, apply Co the Court for the said portion or share to be transferred to himself or themselves.

Explanation. — A relation by consanguinity shall, for the purposes of this section, include a son adopted under the Hindu Law.(2) The application shall be dismissed, unless the applicant or applicants at the time of making it, deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding, in the said notice, together with compensation at the rate of ten per centum of such amount.(3) If such deposit is made, the Court shall give notice to the transferee to appear within such period as it may fix and to state what other sums he has paid in respect of rent or in annulling encumbrances on the property since the date of the transfer. The Court shall then direct the applicants including any person whose application under sub-section (4) has been granted to deposit within such period as the Court thinks reasonable, such amount as the transferee has paid on such account, together with interest at the rate of six and a quarter per centum per annum with effect from the date on which the transferee made such payments.(4) (a) When an application has been made under sub-section (1) any of the remaining co-sharer tenants, including the transferee, if one of them, may within the period referred to in that sub-section or within one month of the date of the application, whichever is later, apply to join in the said application; any co-sharer tenant who has not applied under either sub-section (1) or this sub-section shall not have any further power of purchase under this section.

(b) Such application to join as a co-applicant shall be dismissed unless within such period as the Court may fix, not extending beyond the period referred to in clause (a), the applicant deposits in Court for payment to the applicant or applicants under sub-section (1), such sum as the Court shall determine as the share to be paid by him for the purposes of sub-section (2). If such deposit is made, the Court shall grant the application to join, and thereafter such applicant shall be deemed to be an applicant under sub-section (1).

(5) The Court shall thereafter make an order allowing the applications under sub-section (1) of such applicants whether they applied under sub-section (I) or sub-section (4) who have made the deposits required by this section and directing that the deposits made under sub-sections (2) and (3) shall be paid to the transferee or to such other persons as the Court thinks equitable.(6) In making an order under sub-section (5) in favour of more than one co-sharer tenant, the Court may apportion the property comprised in the portion or share transferred among the applicants in such manner as it deems equitable after taking existing possession into consideration; the Court shall so apportion the said property or portion thereof on the request of any applicant, and in this case may require the applicant who makes such request to make, within such period as the Court may fix, such further deposits as the Court considers necessary for equitable distribution among the remaining applicants :Provided that no apportionment order under this sub-section shall operate as a division of the holding.(7) From the date of the making of the order under sub-section (5)—

(a) the right, title, and interest in the portion or.share of the holding, accruing to the transferee from the transfer shall, subject to the provisions of section 22 and to any order passed under sub-section (6), be deemed to have vested, jointly and free from all encumbrances which have been annulled or created after the date of the transfer, in the co-sharer tenants, whose applications to purchase have been allowed under this section,

(b) the liability of the transferee for the rent due from him on account of the transfer shall cease, and

(c) the Court on further application of such applicant or applicants may place him or them, as the case may be, in possession of the property vested in them.

(8) When a transferee is divested of his right, title and interest under the provisions of sub-section (7), he shall for the purposes of clauses (a),(c) and (d) of section 156 be deemed to be a raiyat ejected from his holding by proceedings for his ejectment commencing on the date on which the application under sub-section (1) was made.(9) Nothing in this section shall take away the right of preemption conferred on any person by Muhammadan Law.(10) An appeal shall lie to the ordinary Civil Appellate Court from any order of a Court under this section.(11) In this section “transfer” does not include simple or usufructuary mortgage or mortgage by conditional sale until a decree or order absolute for foreclosure is made.26G. Limitation on mortgage by occupancy-raiyat. — (I) An occupancy-raiyat may enter into a complete usufructuary mortgage in respect of his holding or of a portion or share thereof for any period which does not and cannot, in any possible event, by any agreement, express or implied, exceed fifteen years and notwithstanding anything contained in this Act or in any other law or in any contract, no other form of usufructuary mortgage so entered into after the commencement of the Bengal Tenancy (Amendment) Act, 1928, shall have any force or effect.(1a) Notwithstanding anything contained in this Act or in any other law for the time being in force or in any contract, every mortgage (including a mortgage by conditional sale) entered into by an occupancy-raiyat in respect of his holding or of a portion or share thereof in which possession of land is delivered to the mortgagee —

(a) which was so entered into before the commencement of the Bengal Tenancy (Amendment) Act, 1928, and was subsisting on or after the first day of August, 1937, or

(b) which, being other than a usufructuary mortgage having under sub-section (1) no force or effect, was so entered into after the commencement of the Bengal Tenancy (Amendment) Act, 1928, and before the commencement of the Bengal Tenancy (Amendment) Act, 1940, and was subsisting on or after the commencement of the Bengal Tenancy (Amendment) Act, 1940, shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for fifteen years, whichever is less.

(1b) Notwithstanding anything contained elsewhere in this Act or in any other law or in any contract, no mortgage (other than a complete usufructuary mortgage) entered into by an occupancy-raiyat in respect of his holding or of a portion or share thereof after the commencement of the Bengal Tenancy (Amendment) Act, 1940, in which possession of land is delivered to the mortgagee, shall have any force or effect.(2) Notwithstanding any contract to the contrary, entered into before or after the commencement of the Bengal Tenancy (Amendment) Act, 1928, such a complete usufructuary mortgage, or a mortgage referred to in sub-section (1a) may be redeemed at any time before the expiry of the period referred to in sub-section (1) or sub-section (1a).(3) Every such complete usufructuary mortgage entered into after the commencement of the Bengal Tenancy (Amendment) Act, 1928, shall be registered under the Indian Registration Act, 1908.(4) Notwithstanding anything contained elsewhere in this Act or in any other law no document creating or purporting to create —

(a) a complete usufructuary mortgage of the holding or of a portion or share of the holding of an occupancy.-raiyat for a period exceed fifteen years, or

(b) an usufructuary mortgage of such holding, portion or share, other than a complete usufructuary mortgage, or

(c) a mortgage of such holding, portion or share other than a complete usufructuary mortgage or a usufructuary mortgage referred to in clause (b) in which possession of land is delivered to the mortgagee, shall be admitted to registration, nor shall any such document be received in evidence or acted on in any Court or by any public servant :

Provided that—

(i) a document referred to in clauses (a) or (b) which was executed before the commencement of the Bengal Tenancy (Amendment) Act, 1928, or

(ii) a document referred to in clause (c) which was executed before the commencement of the Bengal Tenancy (Amendment) Act, 1940, may be so received in evidence or so acted upon as a complete usufructuary mortgage for the period mentioned therein or for fifteen years, whichever is less.

(5) Notwithstanding anything contained in this Act or in any other law or in any contract, the consideration (with all interest thereon) for a complete usufructuary mortgage or for another form of usufructuary mortgage deemed under sub-section (I a) to have taken effect as a complete usufructuary mortgage, entered into by an occupancy-raiyat in respect of his holding or a portion or share thereof, shall be deemed to have been extinguished on the expiry of the period (a) mentioned in the instrument of the mortgage, or (b) of fifteen years, whichever is less from the date of the registration of the instrument or where there is no registered instrument, from the date of the mortgagee’s entry into possession, and the mortgagor shall there upon become entitled to possession of the mortgaged property, and he may, if he is not forthwith given possession, apply to the Court to be restored to possession thereof and to be awarded such compensation as may appear to the Court to be equitable in respect of the period during which the mortgagee retained possession after the date on which the mortgagor became entitled to be restored to possession :Provided that, if in the case of such a mortgage subsisting on or after the first day of August 1937, the said period has, on the date of the commencement of the Bengal Tenancy (Amendment) Act, 1938, already expired, the mortgagor shall, immediately on the commencement of the said Act, become entitled to possession of the mortgaged property, but he shall not be entitled to, nor shall the mortgagee be liable for, any compensation in respect of the mortgagee’s possession from the date of the expiry of the said period to the date of the commencement of the said Act.(6) An application under sub-section (5) shall be accompanied by a process fee of the prescribed amount for service of notice on the mortgagee, and the Court to which such an application is made, may, after service of such notice, award to the mortgagor such compensation as appears equitable and may pass an order restoring possession of the mortgaged property to the mortgagor.(7) Any order made by a Court under sub-section (6) shall have the effect of a decree of a Civil Court and shall be subject to the provisions of the Code of Civil Procedure, 1908, in respect of appeal, revision or review :Provided that, notwithstanding anything contained in this Act or in any other Act for the time being in force, a memorandum of appeal or application for review or revision under this sub-section shall be chargeable with a fee of twelve annas only.(8) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract, in respect of a mortgage by conditional sale subsisting on the date of the commencement of the Bengal Tenancy (Amendment) Act, 1940, in which possession of land has been delivered to the mortgagee—

(a) the mortgagor may at any time institute a suit for a declaration that the original principal, together with all interest due thereon, has been extinguished by the profits arising from the land in respect of which, and subsequent to the date on which, possession was so delivered, and for recovery of possession of the mortgaged property, and

(b) the mortgagee may, at any time after the expiry of fifteen years from the date of the instrument creating the mortgage, institute a suit for a declaration that the original principal, together with all interest due thereon, has not been extinguished by the profits arising from the land in respect of which, and subsequent to the date on which, possession was so delivered.

(9) In any suit instituted under sub-section (8) the Court may, if it thinks fit, reopen any transaction relating to the mortgage for the purpose of ascertaining whether the mortgagee in possession has derived from the mortgaged property profits sufficient to extinguish the original principal, together with simple interest thereon calculated at the rate of eight per centum per annum.(10) In any suit instituted under sub-section (8), if the Court is satisfied that the original principal, together with all interest due thereon, has been extinguished by the profits arising from the mortgaged property or by any other means, it shall make a declaration to this effect and shall pass a decree restoring possession of the mortgaged property to the mortgagor.(11) In any suit instituted under sub-section (8), if the Court is satisfied that the original principal, together with all interest due thereon, has not been extinguished by the profits arising from the mortgaged property or by any other means, it shall make a declaration to this effect, and may fix any sum, not exceeding the original principal, on payment of which the mortgagor shall be entitled to redeem the mortgaged property and may pass a decree accordingly, allowing the mortgagor a reasonable period within which to make such payment; and in any such decree the Court may further direct that, if such payment is not made within the period so fixed, the mortgagee shall retain possession of the mortgaged property for such period as may be specified in the decree and that, after the expiry of that period the original principal, together with all interest due thereon, shall be deemed to be extinguished and possession of the mortgaged property shall be restored to the mortgagor.(12) Subject to the provisions of sub-section (13), the decision of the Court under sub-section (10) or sub-section (11) shall be final.(13) The provisions of the Code of Civil Procedure, 1908, relating to appeals shall apply to all decrees or orders made under sub-sections (10) and (11), but notwithstanding anything contained in the Indian Limitation Act, 1908, or in this Act, the period of limitation for an appeal to the Court of a District Judge against any such decree or order shall be ninety days from the date of the decree or order appealed from.26H. Transfer of rent-free holdings. — Repealed by section 8 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).26I. Interpretation and savings. — Repealed by section 8 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).26J. Landlord’s transfer fee with compensation in certain cases of transfer. — Repealed by s. 8 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).

Enhancement of rent

  1. Presumption as to fair and equitable rent.— The rent for the time being payable by an occupancy-raiyatshall be presumed to be fair and equitable until the contrary is proved.

28. Restriction on enhancement of money rents. — Where an occupancy-raiyat pays his rent in money, his rent shall not be enhanced except as provided by this Act.

29. Enhancement of rent by contract. — The money-rent of an occupancy-raiyat may be enhanced by contract, subject to the following conditions :—

(a) the contract must be in writing and registered;

(b) the rent must not be enhanced so as to exceed by more than two annas in the rupee the rent previously payable by the raiyat;

(c) the rent fixed by the contract shall not be liable to enhancement during a term of fifteen years from the date of the contract :

Provided as follows-

(i) Nothing in clause (a) shall prevent a landlord from recovering rent at the rate at which it has been actually paid for a continuous period of not less than three years immediately preceding the period for which the rent is claimed.

(ii) Nothing in clause (b) shall apply to a contract by which a raiyat binds himself to pay an enhanced rent in consideration of an improvement which has been or is to be effected in respect of the holding by, or at the expense of, his landlord, and to the benefit of which the raiyat is not otherwise entitled; but an enhanced rent fixed by such a contract shall be payable only when the improvement has been effected, and, except when the raiyat is chargeable with default in respect of the improvement, only so long as the improvement exists and substantially produces its estimated effect in respect of the holding.

(iii) When a raiyat has held his land at a specially low rate of rent in consideration of cultivating a particular crop for the convenience of the landlord, nothing in clause (b) shall prevent the raiyat from agreeing, in consideration of his being released from the obligation of cultivating that crop, to pay such rent as he may deem fair and equitable.

  1. Enhancement of rent by suit.— The landlord of a holding held at a money-rent by an occupancy-raiyatmay, subject to the provisions of this Act, institute a suit to enhance the rent on one or more of the following grounds (namely) :—

(a) that the rate of rent paid by the raiyat is below the prevailing rate paid by occupancy-raiyats for land of a similar description and with similar advantages in the same village or in neighbouring villages, and that there is no sufficient reason for his holding at so low a rate;

(b) that there has been a rise in the average local prices of staple food-crops during the currency of the present rent;

(c) that the productive powers of the land held by the raiyat have been increased by an improvement effected by, or wholly or partly at the expense of, the landlord during the currency of the present rent;

(d) that the productive powers of the land held by the raiyat have been increased by fluvial action.

Explanation. — “Fluvial action” includes a change in the course of a river rendering irrigation from the river practicable when it was not previously practicable.

  1. Rules as to enhancement on ground of prevailing rate.— Where an enhancement is claimed on the ground that the rate of rent paid is below the prevailing rate—

(a) in determining what is the prevailing rate the Court shall have regard to the rates generally paid during a period of not less than three years before the institution of the suit, and shall not decree an enhancement unless there is a substantial difference between the rate paid by the raiyat and the prevailing rate found by the Court;

(b) if in the opinion of the Court the prevailing rate of rent cannot he satisfactorily ascertained without a local inquiry, the Court may direct that a local enquiry be held under Order 26 in Schedule I to, and section 78 of, the Code of Civil Procedure, 1908, by such Revenue-officer as the State Government may authorise in that behalf by rules made under Rule 9 in Order 26 in Schedule I to the said Code;

(c) in determining under this section the rate of rent payable by a raiyat his caste shall not be taken into consideration, unless it is proved that by local custom caste is taken into account in determining the rate; and whenever it is found that by local custom any description of raiyatshold land at favourable rates of rent, the rate shall be determined in accordance with that custom;

(d) in ascertaining the prevailing rate of rent the amount of any enhancement authorised on account of a landlord’s improvement shall not be taken into consideration;

(e) if a favourable rate has been determined under cause (c) for any description of raiyats, such rate may, if the Court thinks fit, be left out of consideration in ascertaining the prevailing rate;

(f) if the holding is held at a lump rental, the determination of the rent to be paid may be made by ascertaining the different classes of land comprised within the holding, and applying to the area of each class the prevailing rate paid on that class within the village or neighbouring villages.

31A. What may be taken in certain districts to be the “prevailing rate”. — (1) In any district or part of a district to which this sub-section is extended by the State Government by notification in the Official Gazette, whenever the prevailing rate for any class of land is to be ascertained under section 30, clause (a), by an examination of the rates at which lands of a similar description and with similar advantages are held within any village or villages, the highest of such rates at which and at rates higher than which the larger portion of those lands is held may be taken to be the prevailing rate.

Illustrations

(a) The rates at which land of a similar description and with similar advantages is held in a village are as follows :

Bighas Rs. a. p.
100 … … at 1 0 0
200 … … ” 1 8 0
150 … … ” 1 12 0
100 … … ” 2 0 0
150 … … ” 2 4 0
Total 700

Then Rs. 2-4 is not the prevailing rate, because only 150 bighas, or less than half, are held at that rate. Rs. 2 is not the prevailing rate, because 250 bighas, or less than half, are held at that or a higher rate. Re. 1-12 is the prevailing rate, because 400 bighas, or more than half are held either at this or a higher rate, and this is the highest rate at which, and at rates higher than which, more than half the land is held.

(b) The rates at which land of a similar description and with similar ad-vantages is held in a village are as follows :

Bighas Rs. a. p.
100 … … at 1 0 0
250 … … ” 1 4 0
150 … … ” 1 8 0
150 … … ” 1 12 0
50 … … ” 2 0 0
Total 700

Then for the reasons given in illustration (a), neither Rs. 2 nor Rs. 1 12 is the prevailing rate, nor is Re. 1-8 the prevailing rate, because only 550bighas (exactly half) are held are at Re. 1-8 or at rates higher than Re. 1-8. In this case Re. 1-4 is the prevailing rate, because more than half the lands are held at Re. 1-4 or higher rates and this is the highest rate at which, and at rates higher than which, more than half the land is held.(2) The State Government may, by a like notification, withdraw sub section (1) from any district or part of a district to which it has been extended as aforesaid.

31B. Limit to enhancement of prevailing rate. — When the prevailing rate has once been determined by a Revenue-officer under Chapter X or by a Civil Court in any suit under this Act, it shall not be liable to enhancement save on the ground and to the extent specified in section 30, clause (b), and section 32.

32. Rules as to enhancement on ground of rise in prices. — Where an enhancement is claimed on the ground of a rise in prices—

(a) the Court shall compare the average prices during the decennial period immediately preceding the institution of the suit with the average prices during such other decennial period as it may appear equitable and practicable to take for comparison;

(b) the enhanced rent shall bear to the previous rent the same proportion as the average prices during the last decennial period bear to the average prices during the previous decennial period taken for purposes of comparison, : provided that, in calculating this proportion, the average prices during the later period shall be reduced by one-third of their excess over the average prices during the earlier period;

(c) if in the opinion of the Court it is not practicable to take the decennial periods prescribed in clause (a) the Court may, in its discretion, substitute any shorter periods therefor.

  1. Rules as to enhancement on ground of landlord’s improvement.—(1) Where an enhancement is claimed on the ground of a landlord’s improvement—

(a) the Court shall not grant an enhancement unless the improvement has been registered in accordance with this Act;

(b) in determining the amount of enhancement the Court shall have regard to-

(i) the increase in the productive powers of the land caused or likely to be caused by the improvement,

(ii) the cost of the improvement,

(iii) the cost of the cultivation required for utilising the improvement, and

(iv) the existing rent and the ability of the land to bear a higher rent.

(2) A decree under this section shall, on the application of the tenant or his successor-in-interest, be subject to reconsideration in the event of the improvement not producing or ceasing to produce the estimated effect.

34. Rules as to enhancement on ground of increase in productive powers due to fluvial action. — Where an enhancement is claimed on the ground of an increase in productive powers due to fluvial action —

(a) the Court all not take into account any increase which is merely temporary or casual;

(b) the Court may enhance the rent to such an amount as it may deem fair and equitable, but not so as to give the landlord more than one-half of the value of the net increase in the produce of the land.

  1. Enhancement by suit to be fair and equitable.— Notwithstanding anything in sections 30 to 34, the Court shall not in any case decree any enhancement which is under the circumstances of the case unfair or inequitable.36. Power to order progressive enhancement.— If the Court passing a decree for enhancement considers that the immediate enforcement of the decree to its full extent will be attended with hardship to theraiyat, it may direct that the enhancement shall take effect gradually at such times and by such instalments extending over a period not exceeding ten years as the Court may fix in this behalf. For the purposes of section 37, however, the full rent shall be deemed to have come into force from the date of the decree.

37. Limitation of right to bring successive enhancement suits. —(1) A suit instituted for the enhancement of the rent of a holding on the ground that the rate of rent paid is below the prevailing rate, or on the ground of a rise in prices, shall not be entertained if within the fifteen years next preceding its institution the rent of the holding has been enhanced by a contract made after the second day of March, 1883, or if a decree has been passed under this Act or any enactment repealed by this Act enhancing the rent on either of the grounds aforesaid or on any ground corresponding thereto or dismissing the suit on the merits.(2) Nothing in this section shall affect the provisions of Rule 1 of Order XXIII in Schedule I to the Code of Civil Procedure, 1908.

Reduction of rent

  1. Reduction of rent.— (1) An occupancy-raiyatmay institute a suit for the reduction of his rent on one or more of the following grounds, and, except as hereinafter provided in the case of a diminution of the area of the holding, not otherwise (namely) :

(a) on the ground that the soil of the holding has without the fault of the raiyat become permanently deteriorated by a deposit of sand or other specific cause, sudden or gradual,

(b) on the ground that there has been a fall, not due to a temporary cause, in the average local prices of staple food-crops during the currency of the present rent, or

(c) on the ground that the landlord has refused or neglected to carry out the arrangements, in respect of the irrigation or the maintenance of embankments which were in force at the time when the rent was settled, and the soil of the holding has thereby deteriorated.

Explanation.— A suit for reduction of rent properly framed for the purpose may be instituted or a plea for reduction of rent taken by any one among a number of co-sharer tenants of a holding.(2) In any suit instituted under this section, the Court may direct such reduction of the rent as it thinks fair and equitable.

Price-lists

  1. Price-lists of staple food-crops.— (1) The Collector of every district shall prepare, monthly, or at shorter intervals, periodical lists of the market prices of staple food-crops grown in such local areas as the State Government may from time to time direct, and shall submit them to the Board of Revenue for approval or revision.(2) The Collector may, if so directed by the State Government, prepare for any local area like price-lists relating to such past times as the State Government thinks fit, and shall submit the lists so prepared to the Board of Revenue for approval or revision.(3) The Collector shall, one month before submitting a price-list to the Board of Revenue under this section, publish it in the prescribed manner within the local area to which it relates, and if any landlord or tenant of land within the local area; within the said period of one month, presents to him in writing any objection to the list, he shall submit the same to the Board of Revenue with the list.(4) The price-lists shall, when approved or revised by the Board of Revenue, be published in theOfficial Gazette; and any manifest error in any such list discovered after its publication may be corrected by the Collector with the sanction of the Board of Revenue.(5) The State Government shall cause to be complied from the periodical lists prepared under this section lists of the average prices prevailing throughout each year, and shall cause them to be published annually in the Official Gazette.(6) In any proceedings under this Chapter for an enhancement or reduction of rent on the ground of a rise or fall in prices, the Court shall refer to the lists published under this section, and shall presume that the prices shown in the lists prepared for any year subsequent to the passing of this Act are correct and may presume that the prices shown in the lists prepared for any year prior to the passing of this Act are correct unless, and until it is proved that they are incorrect.(7) The State Government shall make rules for determining what are to be deemed staple food-crops in any local area and for the guidance of officers preparing price lists under this section.40. Commutation of rent payable in kind.— Repealed by s. 28 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).40A. Period for which commuted rents are to remain unaltered.—Repealed by s. 29 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

CHAPTER VI

Non-occupancy-raiyats

  1. Application of Chapter.— This Chapter shall apply toraiyats not having a right of occupancy who are in this Act referred to as non-occupancy-raiyats.42. Initial rent of non-occupancy-raiyat. — When a non-occupancy-raiyat is admitted, to the occupation of land, he shall become liable to pay such rent as may be agreed on between himself and his landlord at the time of his admission.43. Conditions of enhancement of rent. — The rent of a non-occupancy-raiyat shall not be enhanced except by registered agreement or by agreement under. section 46 :Provided that nothing in this section shall prevent a landlord from recovering rent at the rate at which it has been actually paid for a continuous period of not less than three years immediately preceding the period for which the rent is claimed.44. Grounds on which non-occupancy-raiyat may be ejected. — A non-occupancy-raiyat shall, subject to the provisions of this Act, be liable to ejectment on one or more of the following grounds, and not otherwise (namely) :

(a) on the ground that he has failed to pay an arrear of rent;

(b) on the ground that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or that he has broken a condition consistent with this Act and on breach of which he is, under the terms of a contract between himself and his landlord, liable to be ejected;

(c) where he has been admitted to occupation of the land under a registered lease, on the ground that the term of the lease has expired;

(d) on the ground that he has refused to agree to pay a fair and equitable rent determined under section 46, or that the term for which he is entitled to hold at such a rent has expired.

  1. Conditions of ejectment on ground of expiration of lease.— Repealed in Western Bengal by s. 2 of the Bengal Tenancy (Amendment) Act, 1907 (Bengal Act No. 1 of 1907), and in Eastern Bengal by s. 2 of the Eastern Bengal and Assam Tenancy (Amendment) Act, 1908 (E. B. and A. Act No. 1 of 1908).46. ConditAct No. 1 ofions of ejectment on ground of refusal to agree to enhancement. — (1) A suit for ejectment on the ground of refusal to agree to an enhancement of rent shall not be instituted against a non-occupancy – raiyat unless the landlord has tendered to the raiyat a draft of an agreement to pay the enhanced rent, and the raiyat has within three months before the institution of the suit refused to execute the agreement.(2) A landlord desiring to tender a draft of an agreement to a raiyat under this section may file it in the office of such Court or officer as the State Government appoints in this behalf for service on the raiyat. The Court or officer shall forthwith cause it to be served on the raiyat in the prescribed manner, and when it has been so served it shall for the purposes of this section be deemed to have been tendered.(3) If a raiyat on whom a draft of an agreement has been served under sub-section (2) executes the agreement, and within one month from the date of service files it in the office from which it issued, it shall take effect from the commencement of the agricultural year next following.(4) When an agreement has been executed and filed by a raiyat under sub-section (3), the Court or officer in whose office it is so filed shall forthwith cause a notice of its being so executed and filed to be served on the landlord in the prescribed manner.(5) If the raiyat does not execute the agreement and file it under subsection (3), he shall be deemed for the purposes of this section to have refused to execute it.(6) If a raiyat refuses to execute an agreement of which a draft has been tendered to him under this section, and the landlord thereupon institutes a suit to eject him, the Court shall determine what rent is fair and equitable for the holding.(7) If the raiyat agrees to pay the rent so determined, he shall be entitled to remain in occupation of his holding at that rent for a term of five years from the date of the agreement, but on the expiration of that term shall be liable to ejectment subject to the provisions of this Act, unless he has acquired a right of occupancy.(8) If the raiyat does not agree to pay the rent so determined the Court shall pass a decree for ejectment.(9) In determining what rent is fair and equitable the Court shall have regard to the rents generally paid by raiyats for land of a similar description and with like advantages in the same village.(10) A decree for ejectment passed under this section shall take effect from the end of the agricultural year in which it is passed.47. Explanation of “admitted to occupation”. — Where a raiyat has been in occupation of land and a lease is executed with a view to a continuance of his occupation, he is not to be deemed to be admitted to occupation by that lease for the purposes of this Chapter, notwithstanding that the lease may purport to admit him to occupation.

CHAPTER VII

Under-raiyats

47A. Application of Chapter VII to under-raiyats. — The provisions of this Chapter shall apply to all under-raiyats whether their tenancies were created before or after the commencement of the Bengal Tenancy (Amendment) Act, 1928.48. Liability of under-raiyat to pay rent. — When an under-raiyat is admitted to the occupation of land, he shall, subject to the provisions of this Act, become liable to pay such rent as may be agreed on between himself and his landlord at the time of his admission :Provided that the rent or rate of rent agreed upon shall not be less than the rent or the rate of rent payable by the raiyat to his landlord.48A. Enhancement of rent of under-raiyat. — The rent of an under raiyat shall not be enhanced except under the provisions of sections 48B or 48D or section 48D, as the case may be.48B. Enhancement by contract. — (1) The money rent of an under raiyat may be enhanced by a written registered contract :Provided that the rent shall not be enhanced so as to exceed by more than four annas in the rupee the rent previously payable by the under-raiyat, except in the following cases, namely :—

(i) When an under-raiyat binds himself to pay an enhanced rent in consideration of an improvement which has been or is to be effected in respect of the holding wholly or partly at the cost of his landlord and to the benefit of which the under-raiyat is not otherwise entitled, but an enhanced rent fixed by such a contract shall be payable only when the improvement has been effected and except when the under raiyatis chargeable with default in respect of the improvement, only so long as the improvement exists and substantially produces its estimated effect in respect of the holding.

(ii) When an under-raiyat has held his land at a specially low rate of rent in consideration of cultivating a particular crop for the convenience of his landlord, and the under-raiyat agrees, in consideration of his being released from the obligation of cultivating that crop, to pay such rent as he may deem fair and equitable.

(2) The rent fixed by a contract under the provisions of sub-section (1) shall not be liable to enhancement during a period of fifteen years from the date of such contract.48C. Ejectment of under-raiyat. — An under-raiyat shall, subject to the provisions of this Act, be liable to ejectment on one or more of the following grounds, and not otherwise, namely :—

(a) on the ground that he has failed to pay an arrear of rent :

Provided that, if the under-raiyat is one whose rent is payable in terms of cash and not of produce and he pays through the Court all arrears up to date together with such interest and damages as the Court may award, he shall not be liable to ejectment on account of such arrears;

(b) on the ground that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or that he has broken a condition consistent with this Act and on the breach of which he is, under the terms of the contract between himself and his landlord, liable to be ejected;

(c) on the ground that the terms of his lease has expired, when he holds the land under a written lease;

(d) on the ground that the tenancy has been terminated by his landlord by one year’s notice expiring at the end of the agricultural year when he holds the land otherwise than under a written lease; or

(c) on the ground that he does not agree to pay the rent determined by the Court under sub-section (4) of section 48D :

Provided that an under-raiyat shall not be liable to ejectment on the grounds specified in clause (c) or clause (d) —

(i) if the under-raiyat has —

(1) been admitted in a document by the landlord to have a permanent and heritable right to his land, or,

(2) been in possession of his land for a continuous period of twelve years whether before or after or partly before and partly after the commencement of the Bengal Tenancy (Amendment) Act, 1928, or has a homestead thereon,

(ii) in the case of under-raiyats’ other than those described in clause (i) of this proviso unless the landlord has satisfied the Court that he requires the land for his homestead or for cultivation by himself or by members of his family or by hired servants or with aid of parties.

48D. Enhancement by suit. — (1) The landlord of an under-raiyat may, subject to the provisions of this Act, institute a suit to enhance the rent of the under-raiyat, and to eject the under-raiyat if he refuses to pay the rent determined by the Court.(2) The Court shall determine what rent is fair and equitable for the holding : provided that the rate of rent so determined shall not in the case of a money rent exceed one-third of the value of the average estimated produce of the land for the decennial period preceding the institution of the suit and in the case of a produce rent one-half of such produce.(3) The Court shall thereupon inquire from the under-raiyat if he agrees to pay the rent so determined. If the under-raiyat agrees, he shall be entitled to remain in occupation of his holding at that rent for a term of fifteen years from the date of the agreement.(4) If the under-raiyat does not agree to pay the rent so determined, the Court shall pass a decree for ejectment.(5) A decree for ejectment passed under this section shall take effect from the end of the agricultural year in which it is passed.48E. Application for restitution by under-raiyat. — When a landlord has ejected an under-raiyat on the grounds specified in clause (c) or clause (d) of section 48C, the under-raiyat may apply to the Court by which the decree for ejectment was passed to be put in possession of the holding from which he was ejected by way of restitution if, within four years of the ejectment, the landlord sublets the holding or any portion thereof; and thereupon the Court may, if satisfied after inquiry that the landlord did not use the land for his homestead, or for cultivation by himself or by hired servants or by members of his family or with the aid of partners, order a recovery of possession on such terms, if any, with respect to compensation to the persons injured as to the Court may seem just.48F. Incidents of holding of under-raiyat. — The holding of an under raiyat shall descend in the same manner as other immovable property, but subject to the provisions of sub-section (2) of section 48G, shall not be transferable except with the, consent of the landlord.48G. Occupancy-rights of under-raiyat. — (1) Every under-raiyat who, immediately before the commencement of the Bengal Tenancy (Amendment) Act, 1928, had by custom a right of occupancy in any land, shall have a right of occupancy in that land.(2) Every under-raiyat who has a right of occupancy in his holding shall have, as regards his immediate landlord, all the rights and liabilities of araiyat with a right of occupancy, as set forth in —

(i) Chapter V other than those conferred or imposed by sections 20, 21 and 22,

(ii) sections 65, 116 and 178, so far as possible, and

(iii) Chapter XIV,

and his holding, as against such landlord, shall be deemed to be the holding of an occupancy-raiyat for the purposes of the said sections or Chapters.(3) The interest of an under-raiyat who has a right of occupancy in his holding shall not be deemed to be protected interest under clause (d) of section 160.(4) The provisions of sections 48A to 48E shall not apply to an underraiyat who has a right of occupancy in his holding, in so far as such provisions are inconsistent with this section.48H. Provision as to salami. — Repealed by s. 15 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).49. Mortgage by under-raiyat. — (1) Notwithstanding anything contained in section 48F an under-raiyat may enter into a complete usufructuary mortgage in the same manner and on the same conditions as are provided in section 26G for occupancy-raiyats’ and the provisions of that section shall apply so far as may be to under-raiyats’ as if they were occupancy-raiyats’.(2) Such mortgage shall not be binding upon the landlord of the. under-raiyat.

CHAPTER VILA

Restrictions on Alienation of Land by Aboriginals

49A. Application of Chapter. — (1) This Chapter shall apply in the first instance only to the Santhal of the districts of Birbhum, Bankura and Midnapore, who shall be deemed to be aboriginals for the purposes of this Chapter.(2) The State Government may, from time to time, by notification published in the Official Gazette, declare that the provisions of this Chapter shall, in any district or local area, apply to such of the following aboriginal castes or tribes as may be specified in the notification, and that such castes or tribes shall be deemed to be aboriginals for the purposes of this Chapter, namely :—Santhals of other districts, Bhuiyas, Bhumijes, Dalus, Garos, Gonds, Hadis, Hajangs, Hos, Kharias, Kharwars, Kochs (Dacca Division), Koras, Maghs (Bakarganj District), Mal and Sauria Paharias, Meches, Mundas, Mundais, Oraons and Turis.(3) The publication of a notification under sub-section (2) shall be conclusive evidence that the provisions of this Chapter have been duly applied to such castes or tribes.(4) The State Government may, by a like notification, declare that this Chapter shall, in any district or local area, cease to apply to the Santhals mentioned in sub-section (1) or to any caste or tribe to which it may have been applied under sub-section (2).(5) Notwithstanding anything elsewhere contained in this Act, the State Government may, in the manner provided for in sub-sections (2) and (4), declare that the provisions of this Chapter applicable to aboriginal raiyats’ shall apply, so far as may be, or cease to apply to raiyats’ within such colonisation areas in the Sundarbans as may be specified in the notification.49B. Restrictions on transfer of tenant rights. — No transfer by an aboriginal tenure-holder, raiyat or under-raiyat of his right in his tenure or holding, or in any portion ‘thereof, by private sale, gift, will, mortgage, lease or any contract or agreement shall be valid to any extent except as provided in this Chapter.49C. Lease by tenure-holder. — An aboriginal tenure-holder may grant a lease to another aboriginal, to hold the land as a tenure-holder, or to cultivate it as a raiyat, in accordance with the provisions of this Act.49D. Sub-letting by raiyat. — An aboriginal raiyat may sub-let his holding to another aboriginal to cultivate it as an under-raiyat.49E. Usufructuary mortgage by tenure-holder, raiyat or underraiyat. — (1) An aboriginal tenure-holder, raiyat or under- raiyat may enter with another aboriginal into a complete usufructuary mortgage in respect of any land under his own cultivation, for any period which does not and cannot, in any possible event, by an agreement, express or implied, exceed seven years, or the period of his own right, whichever is less :Provided that every mortgage so entered into shall be registered under the Indian Registration Act, 1908.(2) An aboriginal tenant’s power to mortgage his land shall be restricted to only one form of mortgage, namely, a complete usufructuary mortgage.49F. Application to Collector for transfer in certain cases. — (1) If in any case—

(a) an aboriginal tenure-holder is unable to lease his land as provided in section 49C, or an aboriginal raiyat is unable to sub-let his holding as provided in section 49D, or an aboriginal tenure-holder, raiyat or under-raiyat is unable to mortgage his land to another aboriginal as provided in section 19E, sub-section (1), or

(b) an aboriginal tenure-holder, raiyat or under-raiyat desires to transfer his land, or any portion thereof, by private sale, gift or will to any person, he may apply to the Collector for permission, in case (a), to transfer the same to a person who is not an aboriginal, or in case (b), to transfer the same by private sale, gift or will to any person; and the Collector may pass such order on the application as he thinks fit.

(2) Every such transfer shall be made by registered deed, and before the deed is registered and the land transferred, the written consent of the Collector shall be obtained to the terms of the deed and to the transfer.(3) Nothing in this section shall validate a transfer of any land or portion thereof which, by the terms upon which it is held, or by any law or local custom, would not be transferable except for the provisions of this section.49G. Courts not to register, or recognise as valid, transfers in contravention of this Chapter. — No transfer by an aboriginal tenure-holder,raiyat or under-raiyat in contravention of the provisions of this Chapter shall be registered or in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.49H. Power to Collector to set aside improper transfers by tenure-holder, raiyat or under-raiyat. — (1) If a transfer of a tenure or holding, or any portion thereof, is made by an aboriginal tenure-holder, raiyat or under-raiyat in contravention of the provisions of section 49B, or if the transferee has continued or is in possession in contravention of the provisions of section 49E, sub-section (1), or section 49F, as the case may be, the Collector may, on his own initiative or on application made in that behalf, by an order in writing, eject the transferee from such tenure, holding or portion :Provided that—

(a) the transferee whom it is proposed to eject has not been in continuous possession in contravention of this Act for twelve years, and

(b) he is given an opportunity of showing cause against the order of ejectment.

(2) When the Collector has passed any order under sub-section (1), he shall either —

(a) restore the transferred land to the aboriginal tenure-holder, raiyat or under-raiyat, or his heir or legal representative, or

(b) failing the transferor or his heir or legal representative, declare that the right of settlement is vested in the landlord subject to the provisions of section 49J : provided that if the right is not exercised within one year, the Collector may, within six months, settle the land on behalf of the landlord on such terms as he deems fit with an aboriginal; and, if the Collector is unable to make such settlement within the said period, an unrestricted right of settlement will vest in the landlord.

49J. Resettlement of certain tenancies. — (1) Whenever—

(a) the right of settlement of any tenancy, or any portion thereof, is declared to be vested in the landlord under clause (h) of sub-section (2) of section 49H, or

(b) an aboriginal tenant surrenders his tenancy, or a portion thereof or abandons his residence and ceases to hold his tenancy, the landlord may, subject to the provisions of sections 86, 86A and 87,—

(i) settle the tenancy, or a portion thereof, with an aboriginal, or

(ii) with the approval of the Collector in writing, settle the same with a person who is not an aboriginal or retain it in his own possession : provided that such approval shall not be withheld if the Collector is satisfied that the surrender or abandonment referred to in this sub-section is not made with the object of evading the provisions of section 49B, 49E or 49F.

(2) If any land resettles or otherwise deals with any tenancy as aforesaid in contravention of the provisions of sub-section (1), the Collector may take action, so far as may be, in accordance with the provisions of section 49H.

49K. Restriction on the sale of tenant’s rights under order of Court. —(1) Notwithstanding anything contained in this Act, no decree or order shall be passed by any Court for the sale of the right of an aboriginal tenure-holder, raiyat or under-raiyat in his tenure or holding, or in any portion thereof, nor shall any such right be sold in execution of any decree or order :Provided that any tenure or holding belonging to an aboriginal may be sold in accordance with the provisions of sub-section ( 2) in execution of a decree of a competent Court to recover an arrear of rent which has accrued in respect of the tenure or holding.(2) When a decree for an arrear of rent which accrued in respect of a tenure or holding of an aboriginal tenant has been passed, such decree shall be executable solely by the Collector and the Court shall, on application made in this behalf by the decree-holder, send the decree to the Collector for execution and the Collector in execution of the said decree may, in his discretion,—

(a) eject the said aboriginal tenant and settle the said tenure or holding or a portion thereof with another aboriginal tenant on payment of the decretal amount by such other aboriginal tenant, or

(b) place the landlord in possession of the said tenure or holding or a portion thereof for a period not exceeding seven years; and if the Collector, in executing a decree under this sub-section,—

(i) sells the said tenure or holding, he shall, subject to the provisions of sub-section (3), follow the procedure applicable to sales of land by a Civil Court in execution of decrees for arrears of rent;

(ii) places the landlord in possession of the said tenure or holding or any portion thereof for any period, the decree shall, at the end of such period, be deemed to have been satisfied in full and the Collector may then restore the said tenure or holding or portion to the aboriginal tenure-holder, raiyat or under-raiyat, as the case may be, against whom the said decree was executed or to the successor-in-interest of such tenure-holder, raiyat or under-raiyat or may settle it with another aboriginal :

Provided that no portion of a tenure or holding shall be sold or settled by the Collector under this sub-section if such sale or settlement would result in bringing the rent for such portion below two rupees in the case of a tenure or one rupee in the case of a holding.(3) (a) Before issuing a proclamation for the sale of any tenure or holding in execution of a decree referred to in sub-section (2), the Collector shall after hearing the decree-holder and the judgment-debtor divide the tenure or holding into such number of smaller areas to be specified as lots as the Collector thinks fit for the purpose of being sold separately and shall specify the lots in the proclamation.

(b) When any tenure or holding has been advertised for sale by the issue of a proclamation referred to in clause (a), each lot specified in the proclamation shall be put up to auction separately and as soon as the total amount of the bid reaches a sum sufficient to liquidate the amount of the decree and costs including the costs of sale, the sale shall be stopped and no further lots shall be knocked down, and if even after all the lots have been separately put up to auction the total amount of the bid does not reach a sum sufficient to liquidate the amount of the decree and costs as aforesaid, all the lots shall be put up to auction together.

(4) Before restoring or settling a tenure or holding under sub-section (2), the Collector may, if he is satisfied that the rent of the tenure or holding has been illegally enhanced or is substantially in excess of the rent payable by tenants of the same class for lands of the same description with similar advantages in the vicinity, pass an order altering the amount of the rent of the tenure or holding to an amount which he considers to be fair.(5) Notwithstanding anything contained in this Act, where a portion of a tenure or holding is sold or settled under sub-section (2),

(a) the Collector shall before confirming the sale or making the settlement distribute the rent of the tenure or holding over such portion and the remaining portion or portions of the tenure or holding and in making such distribution the Collector shall follow, as far as may be, the procedure laid down in section 88; and

(b) the division of the said tenure or holding consequent upon such sale or settlement and the distribution of the rent of such tenure or holding made under clause (a) shall, subject to the provisions of section 49M, be binding on the tenants and the landlord concerned.

(6) Nothing in this section shall affect,—

(a) any right to execute a decree for the sale of any such tenure or holding or the terms or conditions of any bona fide contract relating thereto if such decree was passed or such contract was registered

(i) in the case of Santhals of the districts of Birbhum, Bankura and Midnapore, before the 1st November, 1916, and

(ii) in the case of other castes and tribes to which this Chapter has been applied, at least one year before the date of the publication of the notification under sub-section (2) of section 49A in respect of such castes or tribes, or

(b) any right for the sale of any such tenure or holding for the recovery of any dues which are recoverable as public demands.

49L. Stay of execution of decrees. — If the sale of a tenure or holding, or any portion thereof, is ordered in execution of a decree against an aboriginal tenure-holder, raiyat or under-raiyat in respect of such tenancy or portion thereof, other than a decree to recover an arrear of rent which has accrued in respect of such tenancy the Court executing the decree shall allow the tenant reasonable time in which to pay the amount due.49M. Appeal and revision. — (1) An appeal, if presented within thirty days from the date of the order appealed against, shall lie to the Collector of the district from any order made under sections 49F, 49H, 49J or 49K by any officer in the district exercising the powers of a Collector, and the order of the Collector on appeal shall be final :Provided that every order passed by the Collector on appeal shall be subject to revision and modification by the Commissioner.(2) Notwithstanding anything in sub-section (1), an appeal from any order, made under any of the sections mentioned in that sub-section by an officer acting under Chapter X of this Act shall be to such officer as the State Government may appoint in this behalf, and the orders of such officers on appeal shall be final :Provided that, in every such case, every order passed by the said officer on appeal shall be subject to revision and modification by such officer as the State Government may appoint to deal therewith.(3) An appeal, as provided in sub-section (1), shall lie to the Commissioner from any original order made by the Collector of the district under any of the sections mentioned in that sub-section.

49N. Bar to suits. — Notwithstanding anything in this Act, no suit shall lie in any Civil Court to vary or set aside any order passed by the Collector in any proceeding under this Chapter except on the ground of fraud or want of jurisdiction,49-O. Saving of certain transfers. — Nothing in this Chapter shall affect the validity of any transfer (not otherwise invalid) by a tenure-holder,raiyat or under-raiyat of his tenure or holding, or any portion thereof, made bona fide,—

(a) in the case of the Santhals of the district of Birbhum, Bankura and Midnapore before the 1st November, 1916, and

(b) in the case of other castes and tribes to which this Chapter has been applied, at least one year before the date of the publication of the notification under section 49A, sub-section (2), in respect to such castes or tribes.

CHAPTER VIII

General Provisions as to rent

Rules and presumptions as to amount of rent

  1. Rules and presumptions as to fixity of rent.— (1) Where a tenure-holder orraiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of an alteration in the area of the tenure or holding.(2) If it is proved in any suit or other proceeding under this Act that either a tenure-holder or raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediate before the institution of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the Permanent Settlement :Provided that if it is required by or under any enactment that in any local area tenancies, or any classes of tenancies, at fixed rents or rates of rent shall be registered as such on, or before, a date specified by or under the enactment, the foregoing presumption shall not after that date apply to any tenancy or, as the case may be, to any tenancy of that class in that local area unless the tenancy has been so registered.(3) The operation of this section, so far as it relates to land held by a raiyat, shall not be affected by the fact of the land having been separated from other land which formed with it a single holding, or amalgamated with other land into one holding.(4) Nothing in this section shall apply to tenure held for a term of years or determinable at the will of the landlord.51. Presumption as to amount of rent and conditions of holding. —If a question arises as to the amount of a tenant’s rent or the conditions under which he holds in any agricultural year, he shall be presumed, until the contrary is shown, to hold at the same rent and under the same conditions as in the last preceding agricultural year.

Alteration of rent on alteration of area

  1. Alteration of rent in respect of alteration in area.— (1) Every tenant shall—

(a) be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him, unless it is proved that the excess is due to the addition to the tenure or holding of land which having previously belonged to the tenure or holding was lost by dilution or otherwise without any reduction of the rent being made :

Provided that no Court shall decree any addition of rent under this clause unless it is satisfied that there has in fact been an increase in the actual area of the tenure or holding since the rent previously paid was settled; and

(b) be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him, unless it is proved that the deficiency is due to the loss of land which was added to the area of the tenure or holding by alluvion or otherwise, and that an addition has not been made to the rent in respect of the addition to the area.

(1A) In determining in a suit under clause (a) of sub-section (1) whether there has been an increase in the actual area of the tenure or holding, the Court shall inquire as to whether the present areas of other tenures or holdings in the vicinity which were settled at or about the same time or on the same standard of measurement as the tenure or holding in suit, show increases in area compared with the area originally settled similar to that alleged in respect of the tenure or holding in suit; if such increases are found to exist, it shall be presumed (notwithstanding anything contained in any contract) that there has in fact been no increase in the actual area of the tenure or holding in suit since the rent previously paid was settled.(1B) When in a suit an increase in the actual area of the tenure or holding is sought to be proved under clause (a) of sub-section (1), the Court shall inquire as to whether the present area of the tenure or holding in suit is within the same defined boundaries as set forth in the kabuliyat orpatta at the inception of the tenancy; and if the Court finds that the present area of the tenure or holding in suit, is within such boundaries no increase of rent shall be granted on account of increase of area unless an equivalent reduction of rent on account of reduction of area has been granted in respect of one or more of the continuous tenures or holdings :Provided that the provisions of this sub-section shall not apply to any suit in respect of any tenure or holding of which any portion of the boundaries set forth in the kabuliyat or the patta comprises a river or sea or land held khas by the landlord or the Government.(2) In determining the area for which rent has been previously paid, the Court shall, if so required by any party to the suit, have regard to —

(a) the origin and conditions of the tenancy, for instance, whether the rent was a consolidated rent for the entire tenure or holding;

(b) whether the tenant has been allowed to hold additional land in consideration of an addition to his total rent or otherwise with the knowledge and consent of the landlord;

(c) the length of time during which the tenancy has lasted without dispute as to rent or area; and

(d) the length of the measure used or in local use at the time of the origin of the tenancy as compared with that used or in local use at the time of the institution of the suit.

(3) In determining the amount to be added to the rent, the Court shall have regard to the rates payable by tenants of the same class for lands of a similar description and with similar advantages in the vicinity, and, in the case of a tenure-holder, to the profits to which he is entitled in respect of the rent of his tenure, and shall not in any case fix any rent which under the circumstances of the case is unfair or inequitable.(4) The amount abated from the rent shall bear the same proportion to the rent previously payable as the diminution of the total yearly value of the tenure or holding bears to the previous total yearly value thereof, or, in default of satisfactory proof of the yearly value of the land lost, shall bear to the rent previously payable the same proportion as the diminution of area bears to the previous area of the tenure or holding.(5) When in a suit under this section the landlord or tenant is unable to indicate any particular land as held in excess, the rent to be added on account of the excess area may be calculated at the average rate of rent paid on all the lands of the holding exclusive of such excess area.(6) When in a suit under this section the landlord or tenant proves that —

(i) at or about the time when the area was recorded in any patta or kabuliyat there existed in respect of the estate or permanent tenure or part thereof in which the tenure or holding is situated a practice of settlement being made after measurement of the land assessed with rent, or,

(ii) the area entered in the counterfoil receipts corresponds with the area in the rent-roll on which the claim is based and that a practice of settlement on measurement prevailed at the time when the rent roll was prepared, it shall be presumed that the area of the tenure or holding was settled by measurement.

Payment of rent

  1. Instalments of rent.— Subject to agreement or established usage, a money-rent payable by a tenant shall be paid in four equal instalments falling due on the last day of each quarter of the agricultural year.54. Time and place for payment of rent.— (1) Every tenant shall pay or tender each instalment of rent before sunset of the day on which it falls due Provided that the tenant may pay or tender the rent payable for the year at any time during the year before it falls due.(2) The payment or tender of rent may be made —

(i) at the landlord’s village office, or at such other convenient place as may be appointed in that behalf by the landlord; or

(ii) by postal money-order in the manner prescribed. A tender may also be made by depositing the rent in Court in accordance with the provisions of section 61.

(3) Where rent is sent by postal money-order in the manner prescribed, the Court may presume until the contrary is proved that a tender has been made.(4) When a landlord accepts rent sent by postal money-order, the fact of this acceptance shall not be used in any way as evidence that he has admitted as correct any of the particulars set forth in the postal money-order form.(5) Any instalment or part of an instalment of rent not duly paid at or before the time, when it falls due shall be deemed to be an arrear.55. Appropriation of payments. — (1) When a tenant makes a payment on account of rent, he may declare the year or the year and instalment to which he wishes the payment to be credited, and the payment shall be credited accordingly.(2) If he does not make any such declaration, the payment may be credited to the account of such year and the instalment as the landlord thinks fit.

Receipts and accounts

  1. Tenant making payment of his landlord entitled to a receipt.—(1) Every tenant who makes a payment on account of rent to his landlord shall be entitled to obtain forthwith from the landlord a written receipt for the amount paid by him, signed by the landlord.(2) The landlord shall prepare and retain a counterfoil of the receipt.(3) The receipt and counterfoil shall specify such of the several particulars shown in Schedule II to this Act as can be specified by the landlord at the time of payment :Provided that the State Government may, from time to time, prescribe or sanction a modified form either generally or for any particular local area or class of cases.(4) If a receipt does not contain substantially the particulars requited by this section, it shall be presumed, until the contrary is shown, to be an acquittance in full of all demands for rent up to the date on which the receipt was given.

57. Tenant entitled to full discharge or statement of account at close of year.— (l ) Where a landlord admits that all rent payable by a tenant to the end of the agricultural year has been paid, the tenant shall be entitled to receive from the landlord, free of charge, within three months after the end of the year, a receipt in full discharge of all rent falling due to the end of the year, signed by the landlord.(2) Where the landlord does not so admit, the tenant shall be entitled, on paying a fee of four annas, to receive within three months after the end of the year a statement of account, specifying the several particulars shown in Schedule II to this Act, or in such other form as may from time to time be prescribed by the State Government either generally or for any particular local area or class of cases.(3) The landlord shall prepare and retain a copy of the statement containing similar particulars.

58. Penalties and fine for withholding receipts and statements of accounts and failing to keep counterparts. — (1) If a landlord without reasonable cause refuses or neglects to deliver to a tenant a receipt containing the particulars required by section 56 for any rent paid by the tenant, the tenant may, within three months from the date of payment, institute a suit to recover from him such penalty, not exceeding double the amount of value of that rent, as the Court thinks fit.(2) If a landlord without reasonable cause refuses or neglects to deliver to a tenant demanding the same either the receipt in full discharge or, if the tenant is not entitled to such a receipt, the statement of account for any year required in section 57, the tenant may, within the next ensuing agricultural year, institute a suit to recover from him such penalty as the Court thinks fit, not exceeding double the aggregate amount or value of all rent paid by the tenant to the landlord during the year for which the receipt or account should have been delivered.(3) If a landlord or his agent, without reasonable cause fails to deliver to the tenant a receipt or statement, or to prepare and retain a counter-foil or copy of a receipt or statement, as required by either of the said sections, such landlord or agent, as the case may be, shall be liable to a fine not exceeding fifty rupees, to be imposed, after summary inquiry, by the Collector.(4) The Collector may hold a summary inquiry under sub-section (3) either on information received from a Revenue-officer within one year, or upon complaint of the party aggrieved made within three months, from the date of failure, or upon the report of a Civil Court.(5) Where, in any case instituted under sub-section (3), the Collector, discharges any landlord or agent, and is satisfied that the complaint of the tenant on which the proceedings were instituted is false or vexatious, the Collector may, in his discretion, by his order of discharge, direct the tenant to pay to such landlord or agent such compensation, not exceeding fifty rupees, as the Collector thinks fit.(6) An appeal shall lie to the Commissioner of the Division against any order of the Collector imposing a fine under sub-section (3) or awarding compensation under sub-section (5); and the order passed by the Commissioner on such appeal shall, subject to any order which may be passed on revision by the Board of Revenue, be final.(7) Any fine imposed or compensation awarded under this section may be recovered in the manner provided by any law for the time being in force for the recovery of a public demand.(8) For the purpose of an inquiry under this section, the Collector shall have power to summon, and enforce the attendance of, witnesses, and compel the production of documents in the same manner as is provided in the case of a Court under the Code of Civil Procedure, 1908.(9) The existence of a dispute as to the rent or area of a tenancy on account of which rent is paid shall not be deemed to be a reasonable cause for refusing, neglecting or otherwise failing to deliver —

(a) a receipt for any amount actually paid on account of rent, or

(b) the statement of account required by section 57, and the refusal of the tenant to accept the receipt shall not be deemed to be a reasonable cause for failing to prepare and retain a counterfoil of such receipt, as required by section 66.

  1. State Government to prepare forms of receipt and account.—(1) The State Government shall cause to be prepared and kept for sale to landlords at all sub-divisional offices, forms of receipts with counterfoils and of statements of account suitable for use under sections 56 to 58.(2). The forms may be sold in books with the leaves consecutively numbered or otherwise as the State Government thinks fit.

60. Effect of receipt by registered proprietor, manager or mortgagee.— Where rent is due to the proprietor, manager or mortgagee of an estate, the receipt of the person registered under the Land Registration Act, 1876, as proprietor, manager or mortgagee of that estate, or of his agent authorised in that behalf, shall be a sufficient discharge for the rent; and the person liable for the rent shall not be entitled to plead in defence to a claim by the person so registered that the rent is due to any third person.But nothing in this section shall affect any remedy which any such third person may have against the registered proprietor, manager or mortgagee.

Deposit of rent

  1. Application to deposit rent in Court.— (1) In any of the following cases, namely :

(a) when a tenant tenders money on account of rent and the landlord refuses to receive it or refuses to grant a receipt for it;

(b) when a tenant bound to pay money on account of rent has reason to believe, owing to a tender having been refused or a receipt withheld on a previous occasion, that the person to whom his rent is payable will not be willing to receive it and to grant him a receipt for it;

(c) when the rent is payable to co-sharers jointly, and the tenant is unable to obtain the joint receipt of the co-sharers for the money, and no person has been empowered to receive the rent on their behalf; or

(d) when the tenant entertains a bona fide doubt as to who is entitled to receive the rent, the tenant may present to the Court having jurisdiction to entertain a suit for the rent of his tenure or holding an application in writing for permission to deposit in the Court a sum not less than the amount of the money then due.

(2) The application shall contain a statement of the grounds on which it is made; shall state—in case (c), the names of the sharers to whom the rent is due, or of so many to be entered, and the name of his common agent, if any, in case (c), the names of the shares to whom the rent is due, or of so many of them as the tenant may be able to specify, and in case (d), the names of the person to whom the rent was last paid and of the person or persons now claiming it;shall be signed and verified, in the manner provided in sub-rules (2) and (3) of Rule 15 of Order VI in Schedule I to the Code of Civil Procedure, 1908 by the tenant, or, where he is not personally cognisant of the facts of the case, by some person so cognisant; and shall in cases (a) and (b) be accompanied by the prescribed cost of transmission of the money deposited to the landlord and in cases (c) and (d) by a fee of the prescribed amount.62. Receipt granted by Court for rent deposited to be a valid acquittance. — (1) If it appears to the Court to which an application is made under section 61 that the applicant is entitled under that section to deposit the rent, it shall receive the rent and give a receipt for it under the seal of the Court.(2) A receipt given under this section shall operate as an acquittance for the amount of the rent payable by the tenant and deposited as aforesaid, in the same manner and to the same extent as if that amount of rent had been received —in case (a) and (b) of section 61, by the person specified in the application as the person to whose credit the deposit was to be entered;in case (c) of that section, by the co-sharers to whom the rent is due; andin case (d) of that section, by the person entitled to the rent.

63. Procedure for payment to the landlord of rent deposited. — The Court receiving a deposit —

(i) in case (a) or (b) of section 61 shall forthwith forward the same by postal money-order to the address of the landlord, or of the common agent, if any of the landlord empowered to receive rent;

(ii) in case (c) or (d) of that section shall forthwith cause to be affixed in a conspicuous place at the Court-house a notification of the receipt thereof containing a statement of all material particulars, and, if the amount of the deposit is not paid away under section 64 within the period of fifteen days next following the date on which the notification is so affixed, the Court shall forthwith in case (c) cause a notice of the receipt of the deposit to be posted free of charge at the landlord’s village-office, if any, and in some conspicuous place in the village in which the tenure or holding or any portion thereof is situated, and in case (d) cause a like notice to be served free of charge on every person who it has reason to believe claims, or is entitled to, the deposit.

  1. Payment of refund of deposit.— (1) The Court may pay the amount of the deposit notified under section 63 to any person appearing to it to be entitled to the same, or may, if it thinks fit, retain, the amount pending the decision of a Civil Court as to the person so entitled.(2) If no payment is made [under clause (i) of section 63 or under sub section (1) of this section before the expiration of three years from the date on which a deposit is made, the amount deposited may, in the absence of any order of a Civil Court to the contrary, be repaid to the depositor upon his application and on his returning the receipt given by the Court with which the rent was deposited.(3) No suit or other proceeding shall be instituted against the Government, or against any officer of the Government, in respect of anything done by a Court receiving a deposit under section 62; but nothing in this section shall prevent any person entitled to receive the amount of any such deposit from recovering the same from a person to whom it has been paid under this section.

64A. Penalty for refusing to receive rent tendered by postal money-order or deposited.— If a landlord or his agent refuses without reasonable cause to receive payment of rent remitted by postal money order or deposited in Court, the landlord shall be precluded from recovering by suit interest, costs or damages in respect of the same, and the Court may in addition award to the tenant damages not exceeding twenty-five per cent. on the whole amount claimed by the plaintiff.The plea of the existence of any dispute as to the amount of rent or area of land of the tenure or holding shall not be deemed to be a reasonable cause under this section :Provided that, when a landlord accepts rent, which has been deposited or remitted by postal money-order, the fact of his acceptance shall not be used in any way as evidence that he has admitted as correct any of the particulars set forth in the application for permission to deposit or in the postal money-order form.

Arrears of rent

  1. Liability to sale for arrears in case of permanent tenure, holding at fixed rates or occupancy-holding.— Where a tenant is a permanent tenure-holder, araiyat holding at fixed rates or an occupancy-raiyat he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.66. Ejectment for arrears in other cases. — (1) When an arrear of rent remains due from a tenant not being a permanent tenure-holder, araiyat holding at fixed rates or an occupancy-raiyat, at the end of the agricultural year the landlord may, whether he has obtained a decree for the recovery of the arrear or not, and whether he is entitled by the terms of any contract to eject the tenant for arrears or not, institute a suit to eject the tenant.(2) In a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrear and of the interest (if any) due thereon, and the decree shall not be executed if that amount and the costs of the suit are paid into Court within thirty days from the date of the decree, or, when the Court is closed on the thirtieth day, on the day upon which the Court re-opens.(3) The Court may for special reasons extend the period of thirty days mentioned in this section.

67. Interest on arrears. — An arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum from the expiration of that quarter of the agricultural year in which the instalment falls due to the date of payment or of the institution of the suit, whichever date is earlier.

68. Power to award damages on rent withheld without reasonable cause, or to defendant improperly sued for rent. — (1) If, in any suit brought for the recovery of arrears of rent, it appears to the Court that the defendant has, without reasonable or probable cause, neglected or refused to pay the amount of rent due by him, the Court may award to the plaintiff in addition to the amount decreed for rent and costs, such damages not exceeding twelve and a half per centum on the amount of rent decreed, as it thinks fit :Provided that interest shall not be decreed when damages are awarded under this section :Provided also that where damages are awarded —

(i) the amount of such damages shall not be less than the interest accruing up to the date of the institution of the suit, and

(ii) interest on the arrear may be awarded from the date of the institution of the suit up to the date of payment at such rate as the Court directs.

(2) If, in any suit brought for the recovery of arrears of rent, it appears to the Court that the plaintiff has instituted the suit without reasonable or probable cause, the Court may award to the defendant, by way of damages, such sum, not exceeding twelve and a half per centum on the whole amount claimed by the plaintiff, as it thinks fit.

69. Order for appraising or dividing produce.— Repealed by s. 45 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

70. Procedure where officers appointed.— Repealed by s. 45 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

71. Rights and liabilities as to possessions of crop.— Repealed by s. 45 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

Liability for rent on change of landlord or after transfer of tenure or holding

  1. Tenant not liable to transferee of landlord’s interest or rent paid to former landlord, without notice of the transfer.— (1) A tenant shall not, when his landlord’s interest is transferred, be liable to the transferee for rent which became due after the transfer and was paid to the landlord whose interest was so transferred, unless the transferee has before the payment given notice of the transfer to the tenant.(2) Where there is more than one tenant paying rent to the landlord whose interest is transferred, a general notice from the transferee to the tenants published in the prescribed manner shall be a sufficient notice for the purposes of this section.

73. Liability for rent before transfer of occupancy-holding.— When an occupancy-raiyat transfers his holding in whole or in part the transferor and transferee shall be jointly and severally liable to the landlord for arrears of rent due before the transfer :Provided that the transferor shall not be liable to the landlord for such arrears of rent if the transferee has agreed to pay such arrears to the landlord and the fact has been mentioned in the instrument of transfer.

Illegal cesses, etc.

  1. Abwab, etc., illegal.— (1) All impositions upon tenants under the denomination of abwab, mahtat, or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void.(2) All impositions upon tenants of road cess or public works cess, or of both,—

(a) in excess of the net amount fixed by clause (2) of section 41 of the Cess Act, 1880, or

(b) on any scale in excess of that required by clause (3) of that section, levied in addition to the actual rent, shall be illegal, and all stipulations and reservations for payment of any such excess contained in any contract made between a landlord and a tenant on or after the 13th day of October, 1880, shall be void :

Provided that nothing in this sub-section shall affect the terms of a written contract registered before the commencement of the Bengal Tenancy (Amendment) Act, 1919 :Provided also that, subject to the provisions of section 72 of the Indian Contract Act, 1872, no suit shall lie for the recovery of anything paid before the commencement of the Bengal Tenancy (Amendment) Act, 1919, on account of the impositions referred to in sub-section (2).(3) Nothing in this section shall be deemed to affect the terms of a permanent mukarrrai lease granted by a proprietor or holder of a permanent tenure in a permanently-settled area and registered before the commencement of the Bengal Tenancy (Amendment) Act, 1928.

74A. Fine for realisation of abwab, etc. — (1) If a landlord or his agent realises from a tenant any imposition declared under sub-section (1) of section 74 to be illegal, such landlord or agent, as the case may be, shall be liable to the same fine, to be imposed in the same manner, as in sub-section (3) of section 58, and the provisions of sub-sections (4), (7) and (8) of the said section relating to inquiry, fine and procedure shall,mutatis mutandis and so far as may be, apply to proceedings under this section.(2) An appeal shall lie to the District Judge against an order imposing a fine under this section, and the order passed by the District Judge on such appeal shall be final.(3) The imposition of a fine on a landlord or landlord’s agent under this section shall not operate as a bar to the institution of a suit under section 75.

75. Penalty for exaction by landlord from tenant of sum in excess of the rent payable. — Every tenant from whom, except under any special enactment for the time being in force, any sum of money or any portion of the produce of his land is exacted by his landlord in excess of the rent or road cess or public works cess or interest lawfully payable, may, subject to the second proviso to sub-section (2) of section 74 within six months from the date of the exaction, institute a suit to recover from the landlord, in addition to the amount or value of what is so exacted, such sum by way of penalty as the Court thinks fit, not exceeding two hundred rupees; or, when double the amount or value of what is so exacted exceeds two hundred rupees, not exceeding double that amount or value.

Suspension of provisions relating to enhancement of rent

75A. Suspension of provisions relating to enhancement of rent. — (1) All the provisions of this Act relating to enhancement of rent are hereby suspended for a period of ten years with effect from the twenty-seventh day of August, 1937 and all such provisions relating to enhancement of rent of a raiyat or an under-raiyat are hereby suspended for a further period of ten years with effect from the twenty-seventh day of August, 1947.(2) (a) All decrees and orders enhancing rent passed under any of the provisions of this Act on or after the twenty-seventh day of August, 1937 and before the date of the commencement of the Bengal Tenancy (Amendment) Act, 1938, are hereby declared to be inoperative from the date of such decree or order until the expiry of the ten years referred to in sub-section (1) and all decrees and orders enhancing the rent of a raiyat or an under-raiyat so passed are hereby declared to be inoperative for a further period of ten years from the twenty-seventh day of August, 1947.

(b) Any provision providing for enhancement of rent contained in any contract entered into between a landlord and a tenant during the period of ten years referred to in sub-section (1) is hereby declared to be inoperative during the said period and any provision providing for enhancement of rent of a raiyat or an under-raiyat contained in any such contract or in any contract entered into between a landlord and a raiyat or an under-raiyat during the period of ten years with effect from the twenty-seventh day of August, 1947, is hereby declared to be inoperative during the said period of ten years. (3) Notwithstanding anything contained in this Act or any other law, the period during which a decree, Order or contract is rendered inoperative under this section shall not be taken into account in computing any period under the law of limitation nor in construing the terms of a contract.

CHAPTER IX

Miscellaneous provisions as to landlords and tenants

Improvements

  1. Definition of “improvement”.— (1) For the purposes of this Act, the term “improvement”, used with reference to a holding, shall mean any work which adds to the value of the holding, which is suitable to the holding and consistent with the purpose for which it was let, and which, if not executed on the holding, is either executed directly for its benefit, or is, after execution, made directly beneficial to it.(2) Until the contrary is shown, the following shall be presumed to be improvements within the meaning of this section :

(a) the construction of wells, tanks, water-channels and other works for the storage, supply or distribution of water for the purposes of agricultural, or for drinking or for the use of men and cattle employed in agriculture;

Explanation.— Such construction on agricultural lands shall not be deemed to impair the value of the land or to render it unfit for the purposes of the tenancy;

(b) the preparation of land for irrigation;

(c) the drainage, reclamation from rivers or other waters, or protection from floods, or from erosion or other damage by water, of land used for agricultural purposes, or waste-land which is culturable;

(d) the reclamation, clearance, enclosure or permanent improvement of land for agricultural purposes;

(e) the renewal or reconstruction of any of the foregoing works, or alterations therein, or additions thereto; and

(f) the erection of a dwelling-house whether of masonry, bricks, stone or any other material whatsoever, for the tenant and his family together with all necessary out-offices.

(3) But no work executed by the tenant of a holding shall be deemed to be an improvement for the purposes of this Act if it substantially diminishes the value of his landlord’s property.77. Right to make improvements in case of holding at fixed rates and occupancy holding. — (1) Neither the tenant nor his landlord shall, as such, be entitled to prevent the other from making an improvement in respect of the holding, except on the ground that he is willing to make it himself.(2) If both the tenant and his landlord wish to make the same improvement, the tenant shall have the prior right to make it, unless it affects another holding or other holdings under the same landlord.(3) Any fee realised from a tenant for permission to make any improvement in respect of his holding shall be deemed to be an abwab and the provisions of sub-section (1) of section 74 shall apply thereto.78. Collector to decide question as to right to make improvement, etc.— If a question arises between the raiyat or under-raiyat and his landlord —

(a) as to the right to make an improvement, or

(b) as to whether a particular work is an improvement, the Collector may, on the application of either party, decide the question, and his decision shall be final.

  1. Right to make improvements in case of non-occupancy holding.—Repealed by s. 51 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).80. Registration of landlord’s improvements. — (1) A landlord may, by application to such Revenue-officer as the State Government may appoint, register any improvement which he has lawfully made or which has been lawfully made wholly or partly at his expense or which he has assisted a tenant in making.(2) The application shall be in such form, shall contain such information, and shall be verified in such manner, by local inquiry or otherwise, as the State Government from time to time prescribes.(3) The officer receiving the application may reject it if it has not been made within twelve months —

(a) in the case of improvements made before the commencement of this Act — from the commencement of this Act;

(b) in the case of improvements made after the commencement of this Act — from the date of the completion of the work.

  1. Application to record evidence as to improvement.— (1) If any landlord or tenant of a holding desires that evidence relating to any improvement made in respect thereof be recorded, he may apply to a Revenue-officer, who shall thereupon, at a time and place of which notice shall be given to the parties, record the evidence, unless he considers that there are no reasonable grounds for making the application, or it is made to appear that the subject-matter thereof if under inquiry in a Civil Court.(2) When any matter has been recorded under this section, the record thereof shall be admissible in evidence in every subsequent proceedings between the landlord and tenant or any persons claiming under them.

82. Compensation forraiyats’ or under-raiyats” improvements. —(1) Every raiyat or under-raiyat who is ejected from his holding shall be entitled to compensation for improvements which have been made in respect thereof in accordance with this Act by him, or by his predecessor in-interest, and for which compensation has not already been paid.(2) Whenever a Court makes a decree or order for the ejectment of a raiyat or under-raiyat, it shall determine the amount of compensation (if any) due under this section to the raiyat or under-raiyat for improvements, and shall make the decree or order of ejectment conditional on the payment of that amount to the raiyat or under-raiyat.(3) No compensation under this section for an improvement shall be claimable where the raiyat or under-raiyat has made the improvement in pursuance of a contract or under a lease binding him, in consideration of some substantial advantage to be obtained by him, to make the improvement without compensation, and he has obtained that advantage.(4) Improvements made by a raiyat or under-raiyat between the second day of March, 1883, and the commencement of this Act shall be deemed to have been made in accordance with this Act.(5) The State Government may, from time to time, by notification in the Official Gazette, make rules requiring the Court to associate with itself, for the purpose of estimating the compensation to be awarded under this section for an improvement, such number of assessors as the State Government thinks fit, and determining the qualifications of those assessor and the mode of selecting them.

83. Principle on which compensation is to be estimated. — (1) In estimating the compensation to be awarded under section 82 for an improvement, regard shall be had —

(a) to the amount by which the value, or the produce, of the holding or the value of that produce, is increased by the improvement;

(b) to the condition of the improvement, and the probable duration of its effects;

(c) to the labour and capital required for the making of such an improvement;

(d) to any reduction or remission of rent or any other advantage given by the landlord to the raiyat or under-raiyat in consideration of the improvement; and

(e) in the case of a reclamation or of the conversion of un-irrigated into irrigated land, to the length of time during which the raiyat or under-raiyat has had the benefit of the improvement at an un-enhanced rent.

(2) When the amount of the compensation has been assessed, the Court may, if the landlord and raiyat or under-raiyat agree direct that, instead of being paid wholly in money, it shall be made wholly or partly in some other way.

Acquisition of land for building and other purposes

  1. Acquisition of land for building and other purposes.— A Civil Court may, on the application of the landlord of a holding, and on being satisfied that he is desirous of acquiring the holding or part thereof for some reasonable and sufficient purpose having relation to the good of the holding or of the estate in which it is comprised, including the use of the ground as building ground, or for any religious, educational or charitable purpose, and on being satisfied on the certificate of the Collector that the purpose is reasonable and sufficient, authorise the acquisition thereof by the landlord upon such conditions as the Court may think fit, and require the tenant to sell his interest in the whole or such part of the holding to the landlord upon such terms as may be approved by the Court, including full compensation to the tenant.

85. Restrictions on sub-letting.—Repealed by s. 53 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

Surrender and abandonment

85A. Surrender by tenure-holders. — (1) A tenure-holder may apply to the Court for permission to surrender a tenure.(2) An application under sub-section (1) shall be in the prescribed form, shall give particulars, inter alia, of under-tenure-holders and raiyats’ if any, holding directly under the tenure sought to be surrendered, and of any encumbrances upon the said tenure, and, shall be accompanied by the process-fee prescribed for service of notices upon the landlord or his common agent, if any, under-tenure-holders and raiyats’, if any, referred to above and incumbrancers, if any.(3) If the Court, after hearing the parties, grants permission for the surrender of the tenure, it shall impose such equitable conditions as it may think proper.(4) An appeal shall lie to the ordinary Civil Appellate Court from any order of a Court under this section.

86. Surrender. — (I) A raiyat or under-raiyat not bound by lease or other agreement for a fixed period may, at the end of any agricultural year, surrender his holding.(2) But, notwithstanding the surrender, the raiyat or under-raiyat shall be liable to indemnify the landlord against any loss of the rent of the holding for the agricultural year next following the date of the surrender, unless he gives to his landlord, at least three months before he surrenders, notice of his intention to surrender.(3) When a raiyat or under-raiyat has surrendered his holding, the Court shall in the following cases for the purposes of sub-section (2) presume, until the contrary is shown, that such notice was so given, namely :

(a) if the raiyat or under-raiyat takes a new holding in the same village from the same landlord during the agricultural year next following the surrender;

(b) if the raiyat or under-raiyat ceases, at least three months before the end of the agricultural year at the end of which the surrender is made, to reside in the village in which the surrendered holding is situate.

(4) The raiyat or under-raiyat may, if he thinks fit, cause the notice to be served through the Civil Court within the jurisdiction of which the holding or any portion of it is situate.(5) When a raiyat or under-raiyat has surrendered his holding, the landlord may enter on the holding and either let it to another tenant or take it into cultivation himself.(6) When a holding is subject to an encumbrance secured by a registered instrument, or when there is an under-raiyat on the holding or part thereof the surrender of the holding shall not be valid unless it is made with the consent of the landlord and the incumbrancer or the under-raiyat, as the case may be.(7) Save as provided in sub-section (6), nothing in this section shall affect any arrangement by which a raiyat or under-raiyat and his landlord may arrange for a surrender of the whole or a part of the holding.

86A. Abatement of rent on account of dilution and re-entry into loads which re-appear. — (1) If the lands of a tenure or holding or a portion of such lands are lost by dilution, the rent of the tenure or holding shall be abated by an amount which bears the same proportion to the rent of the whole tenancy, as the area lost bears to that of the whole tenancy.(2) (a) Notwithstanding anything contained in this Act or any other law or any contract to the contrary, the right, title an interest of the tenant or his successors-in-interest shall subsist in such lands or portion thereof during the period of loss by dilution not exceeding twenty years and the tenant or his successors-in-interest shall have right to immediate possession on the reappearance of such lands or portion thereof within twenty years of the loss by the dilution and the landlord shall have right to the arrears of rent without interest or damage in respect of the land which has reappeared for the period during which it was lost for four years whichever is less.

(b) The rent of the lands which have reappeared, shall for the purposes of the payment both of the arrears of rent under this sub-section and of the rent due thereafter (until such rent is modified in accordance with the provisions of this Act) be calculated on the rent of the remainder of the tenancy existing when possession of the lost lands is resumed, and shall bear the proportion to that rent which the area of the lands which have reappeared bears to that of the remainder of the tenancy :

Provided that in cases where the entire tenure or holding has been lost by dilution, the rent of the portion thereof which reappear shall be calculated in like manner on the rent existing when the entire tenancy was lost.(3) Nothing shall prevent the accrual of rights under the operation of any other enactment in any portion of the lands of a tenure or holding which have been lost by dilution, if such lands thereafter reappear as an accretion thereto.

87. Abandonment. — (1) If a raiyat or under-raiyat voluntarily abandons his residence without notice to his landlord and without arranging for payment of his rent as it falls due, and ceases to cultivate his holding either by himself or by some other person, the landlord may, at any time after expiration of the agricultural year in which the raiyat or under-raiyat so abandons and ceases to cultivate, enter on the holding and let it to another tenant or take it into cultivation himself.(2) Before a landlord enters under this section, he shall file a notice in the prescribed form in the Collector’s office, stating that he has treated the holding as abandoned and is about to enter on it accordingly; and the Collector shall cause a notice to be published in the prescribed manner.(3) When a landlord enters under this section, the raiyat or under-raiyat shall be entitled to institute a suit for recovery of possession of the land at any time not later than the expiration of two years, or, in the case of a non occupancy-raiyat, six months, from the date of the publication of the notice; and thereupon the Court may, on being satisfied that the raiyat or under raiyat did not voluntarily abandon his holding, order recovery of possession on such terms, if any, with respect to compensation to persons injured and payment of arrears of rent as to the Court may seem just.(4) Where the whole or part of a holding has been sublet by a registered instrument, the landlord shall, before entering under this section on the holding, offer the whole holding to the sub-lessee for the remainder of the term of the sub-lease at the rent paid by the raiyat or under-raiyat who has ceased to cultivate the holding, and on condition of the sub-lessee paying up all arrears due from that raiyat or under-raiyat. If the sub-lessee refuses or neglects within two months to accept the offer, the landlord may avoid the sub-lease and may enter on the holding and let it to another tenant or cultivate it himself as provided in sub-sections (1) and (2).(5) If an under-raiyat has —

(a) a right of occupancy in a holding or portion thereof, or

(b) been admitted in a document by the landlord to have a permanent and heritable right in his land, or

(c) been in possession of his land for a continuous period of twelve years whether before or after or partly before and partly after the commencement of the Bengal Tenancy (Amendment) Act, 1928, or has a homestead thereon, the landlord shall, before entering on the holding, under this section, offer the whole holding, or part thereof, to the under-raiyat at the rent paid by him to the raiyat and on condition of the under-raiyat paying up all arrears due from that raiyat and a salami of five times the aforesaid rent. If the under-raiyat refuses or neglects within two months to accept the offer, the landlord may avoid the sub-tenancy and may enter on the holding and let it to another tenant, or cultivate it himself, as provided in sub-sections (1) and (2).

Subdivision of tenancy

  1. Division of tenancy not valid unless consented to by all parties or ordered by Civil Court.— (1) Save as provided elsewhere in this section, a division of a tenure or holding or a distribution of the rent payable in respect thereof shall not be valid unless such division or distribution has been expressly consented to in writing by both —

(a) the landlord or the entire body of landlords or their agents duly authorised in that behalf, and

(b) all the co-sharer tenants :

Provided that, if there is proved to have been made in any landlord’s rent-roll any entry showing that any tenure or holding has been divided or that the rent payable in respect thereof has been distributed, such landlord may be presumed to have given his express consent in writing to such division or distribution.(2) The Civil Court, on application made to it by one or more co-sharer tenants for a division of a tenure or holding or for a distribution of the rent payable in respect thereof, or for the annulment or modification of a previous division or distribution other than one made under this sub-section or under an agreement made between all the landlords and co-sharer tenants in conformance with the provisions of sub-section (1), may, by order in writing, direct such division of the tenure or holding or such distribution of rent as the Court considers fair and equitable, or annul or modify a division or distribution previously made other than one of the nature referred to above if the Court considers it unfair and inequitable :Provided that —

(a) no such order shall be passed without notice to the landlord or the entire body of landlords or their common agent, if any, and to the remaining co-sharer tenants, the prescribed process fee for which shall accompany the application;

(b) no order for division or distribution shall be made which would result in bringing the rent for any portion below two rupees in the case of tenures or one rupee in the case of holdings; and

(c) nothing contained in this sub-section shall be deemed to authorise a Court on an application for division or distribution to direct a division or distribution in respect of the share of any tenant other than an applicant under this sub-section or a co-sharer tenant who has been joined as a co-applicant under sub-section (3).

(3) On receipt of notice of an application for division or distribution under sub-section (2) a co-sharer tenant may apply to be joined as a co-applicant, and upon such application the Court shall join the said co-sharer tenant as a co-applicant without further notice to the landlord or landlords and the remaining co-sharer tenants.(4) Every order of a Court under sub-section (2) directing division of a tenure or holding or a distribution of the rent thereof shall also direct payment to the landlord of one rupee as mutation fee by each applicant or each body of applicants including co-applicant, if any, joined under subsection (3).(5) Every order referred to in sub-section (4) shall state the date from which the division or distribution shall have effect and the joint and several liability of each co-sharer tenant for arrear of rent, if any, up to that date, shall subsist in all the lands of the entire tenure or holding.(6) An appeal shall lie to the ordinary Civil Appellate Court from an order of a Court under this section, provided that it is presented within thirty days from the date of such order and is accompanied by the prescribed fee.

Ejectment

  1. No ejectment except in execution of decree.— No tenant shall be ejected from his tenure or holding except in execution of a decree.

Measurements

  1. Landlord’s right to measure land.— (1) Subject to the provisions of this section and any contract, a landlord may, by himself, or by any person authorised by him this behalf, enter on and measure all land comprised in his estate or tenure, other than land exempt from the payment of revenue.(2) A landlord shall not, without the consent of the tenant, or the written permission of the Collector, be entitled to measure land more than once in ten years, except in the following cases (namely) :

(a) where the area of the tenure or holding is liable, by reason of alluvion or dilution, to vary from year to year, and the rent payable depends on the area;

(b) where the area under cultivation is liable to vary from year to year and the rent payable depends on the area under cultivation;

(c) where the landlord is a purchaser otherwise than by voluntary transfer and not more than two years have elapsed since the date of his entry under the purchase.

(3) The ten years shall be computed from the date of the last measurement, whether made before or after the commencement of this Act.91. Power for Court to order tenant to attend and point out boundaries. — (l) Where a landlord desires to measure any land which he is entitled to measure under section 90, the Civil Court may, on the application of the landlord, make an order requiring the tenant to attend and point out the boundaries of the land.(2) If the tenant refuses or neglects to comply with the order, a map or other record of the boundaries and measurements of the land, prepared under the direction of the landlord at the time when the tenant was directed to attend, shall be presumed to be correct until the contrary is shown.

92. Standard of measurement. — (I) Every measurement of land made by order of a Civil Court, or of a Revenue-officer, in any suit or proceeding between a landlord and tenant, shall be made by the acre, unless the Court or Revenue-officer directs that it be made by any other specified standard.(2) If the rights of the parties are regulated by any local measure other than the acre, the acre shall be converted into the local measure for the purposes of the suit or proceeding.(3) The State Government may, after local inquiry, make rules declaring for any local area the standard or standards of measurement locally in use in that area, and every declaration so made shall be presumed to be correct until the contrary is shown.

Managers

  1. Power to call upon co-owners to show cause why they should not appoint a common manager.— (i) When any dispute exists between co-owners of an estate or tenure or of lands held jointly between two or more estates or tenures as to the management thereof; or

(ii) when, owing to the existence of a large number of small co-sharers in an estate or tenure, the tenants or landlords are put to inconvenient and harassment in the payment or receipt of the rent due, the District Judge may, if it appears to him to be just and convenient, on the application of —

in case (i),

(a) the Collector, or

(b) any one having an interest in the estate or tenure or in any of the estates or tenures; and in case (ii),—

(a) more than half the tenants, or

(b) co-sharers holding more than half the aggregate interests in the estate or tenure, direct notice to be served on all the co-owners or co-sharers calling on them to show cause why they should not appoint a common manager—

in case (i), either for the whole of the estate or tenure or estates or tenures, as the case may be, or for those portions of the estate or tenure or estates or tenures, as the case may be, which are affected by the dispute; and in case (ii), for the estate or tenure in which the tenants or landlords are put to inconvenience or harassment :Provided that a co-owner or co-sharer of an estate or tenure or a co-owner of lands held jointly between two or more estates or tenures shall not be, entitled to apply under this section unless he is actually in possession of the interest he claims, and, if he is a co-owner or co-sharer of an estate, unless his name and the extent of his interest are registered under the Land Registration Act, 1876.94. Power to order them to appoint a manager if cause is not shown.—If the co-owners fail to show cause as aforesaid within one month after service of a notice under section 93, the District Judge may make an order directing them to appoint a common manager and a copy of the order shall be served on any co-owner who did not appear before it was made.

95. Power to appoint manager if order is not obeyed.— If the co-owners do not, within such period, not being less than one month after the making of an order under section 94, as the District Judge may fix in this behalf, or, where the order has been served as directed by that section, within a like period after such service, appoint a common manager and report the appointment for the information of the District Judge, the District Judge may, unless it is shown to his satisfaction that there is a prospect of a satisfactory arrangement being made within a reasonable time —

(a) direct that the estate or tenure be managed by the Court of Wards in any case in which the Court of Wards consents to undertake the management thereof; or

(b) in any case appoint a manager.

  1. Power to nominate person to act in all cases under clause (b) of section 95.—The State Government may nominate a person for any local area to manage all estates and tenures within that local area for which it may he necessary to appoint a manager under clause (b) of section 95; and, when any person has been so nominated, no other person shall be appointed manager under that clause by the District Judge, unless the case of any estate the Judge thinks fit to appoint one of the co-owners themselves as manager.

97. The Court of Wards Act, 1879, applicable to management by Court of Wards.— In any case in which the Court of Wards undertakes under section 95 the management of an estate or tenure, so much of the provisions of the Court of Wards Act, 1879, as relates to the management of immovable property shall apply to the management.

98. Provisions applicable to manager. — (1) A manager appointed under section 95 may, if the District Judge thinks fit, be remunerated by a fixed salary or percentage of the money collected by him as manager, or partly in one way and partly in the other, as the District Judge from time to time directs.(2) He shall give such security for the proper discharge of his duties as the District Judge directs.(3) He shall, subject to the control of the District Judge, have, for the purposes of management, the same powers as the co-owners jointly might but for his appointment have exercised, and the co-owners shall not exercise any such power.(4) He shall deal with and distribute the profits in accordance with the orders of the District Judge.(5) He shall keep regular accounts, allow the co-owners or any of them to inspect and take copies of those accounts.(6) He shall pass his accounts at such period and in such form as the District Judge may direct.(7) He may make any application which the proprietors could make under section 103.(8) He shall be removable by the order of the District Judge, and not otherwise.

99. Power to restore management to co-owners. — When an estate or tenure has been placed under the management of the Court of Wards, or a manager has been appointed for the same under section 95, the District Judge may at any time direct that the management of it be restored to the co-owners if he is satisfied that the management will be conducted by them without inconvenience to the public or injury to private rights.

99A. Appointment of common agent. — (1) Where two or more persons are joint or co-sharer landlords they may by an instrument in writing appoint a common agent for the whole of their joint property or for any portion thereof to receive on behalf of all of them —

(a) notices of transfer under sections 12, 13, 15, 17, 18 and 26C of tenures or holdings or portions or shares thereof held under them within that property.

(b) Omitted

(c) the rent deposited in Court under section 61, and

(d) the notices referred to in sub-section (2) of section 85A and in sub-section (2) of section 88.

(2) (a) The Collector shall, on application by the common agent and on production by him of the instrument of appointment, register the names of the common agent and the landlords appointing him and their addresses and other particulars in the prescribed manner.

(b) The name and address of such common agent shall be entered upon the receipt required under section 56 to be given on the payment of rent for the tenure or holding situated within the area for which he has been appointed under sub-section (1).

  1. Power to make rules.— (1) The High Court may, from time to time, make rules defining the powers and duties of managers under sections 95 to 99.(2) The Board of Revenue may, from time to time, make rules defining the powers and duties of common agents under section 99A.
CHAPTER X

Record-of-rights and settlement of rents

Part I — Record-of-rights

  1. Power to order survey and preparation of record-of-rights.—(1) The State Government may, in any case if it thinks fit, make an order directing that a survey be made and a record-of-rights be prepared, by a Revenue-officer, in respect of all lands in any local area, estate or tenure or part thereof :Provided that the provisions of sections 104 to 105A, both inclusive, 109C, 109D, 110, 112 and 113 shall not apply in respect of any lands which are held by a non-agriculturist and are not used for purposes connected with agriculture or horticulture.(2) In particular and without prejudice to the generality of the foregoing power, the State Government may make such an order in the following cases namely :

(a) where-

(i) the landlord or tenants, or

(ii) a proportion of not less than one-half of the total number of landlords, or

(iii) a landlord, or a proportion of the landlords, whose interest, or the aggregate of whose interests, respectively, in the lands of the local area, estate or tenure or part thereof is not less than one-half of the total shares of all the landlords therein, or

(iv) a proportion of not less than one-fourth of the total number of tenants, applies, or apply, for such an order, depositing, or giving security for, such amount for the payment of expenses as the State Government directs;

(b) where the preparation of such a record is calculated to settle or avert a serious dispute existing or likely to arise between the tenants and their landlords generally;

(c) where the local area, estate or tenure or the part thereof belongs to, or is managed by, or on behalf of, the Government, or is managed by the Court of Wards or a Manager appointed by the District Judge under section 95;

(d) where a settlement of land-revenue is being or is about to be made in respect of the local area, estate or tenure or of the part thereof.

Explanation 1.— The term “settlement of land revenue”, as used in clause (d), includes a settlement of rents in an estate or tenure which belongs to the Government.Explanation 2.— A superior landlord may apply for an order under this section notwithstanding that his estate or part thereof is temporarily leased to a tenure-holder.(3) A notification in the Official Gazette of an order under this section shall be conclusive evidence that the order has been duly made.(4) The survey shall be made and the record-of-rights prepared in accordance with rules made in this behalf by the State Government.

102. Particulars to be recorded. — Where an order is made under section 101, the particulars to be recorded shall be specified in the order, and may include, either without or in addition to other particulars, some or all of the following, namely :

(a) the name of each tenant or occupant;

(b) the class or classes to which each tenant belongs, that is to say, whether he is a tenure-holder, raiyat holding at fixed rates, settled raiyat, occupancy-raiyat, non-occupancy-raiyat or under-raiyat with or without a right of occupancy and, if he is a tenure-holder, whether he is a permanent tenure-holder or not, and whether his rent is liable to enhancement during the continuance of his tenure;

(c) the situation and quantity and one or more of the boundaries of the land held by each tenant or occupier;

(d) the name of each tenant’s landlord;

(dd) the name of each proprietor in the local area or estate;

(e) the rent payable at the time the record-of-rights is being prepared;

(ee) the amount payable in respect of any rights of pasturage, forest rights over fisheries and the like at the time the record-of-rights is being prepared, the conditions and incidents appertaining to such rights, and if the amount is a gradually increasing amount, the time at which and the increments by which, it increases;

(f) the mode in which that rent has been fixed — whether by contract, by order of a Court, or otherwise;

(g) if the rent is a gradually increasing rent, the time at which, and the steps by which, it increases;

(gg) the rights and obligations of each tenant and landlord in respect of —

(i) the use by tenants of water for agricultural purposes, whether obtained from a river, jhil, tank or well or any other sources of supply, and

(ii) the repair and maintenance of appliances for securing a supply of water for the cultivation of the land held by each tenant, whether or not such appliances be situated within the boundaries of such land;

(h) the special conditions and incidents, if any, of the tenancy;

(i) any right of way or other easement attaching to the land for which a record-of-rights is being prepared;

(j) if the land is claimed to be held rent free — whether or not rent is actually paid, and, if not paid, whether or not the occupant is entitled to hold the land without payment of rent, and, if so entitled, under what authority :

Provided that, if lands are not used for purposes connected with agriculture or horticulture, it shall be sufficient to record that fact, together with the prescribed particulars relating to the occupant, the landlord and the tenancy.102A. Power to order survey and preparation of record-of-rights as to water.— The State Government may, for the purpose of settling or averting disputes existing or likely to arise between landlords, tenants, proprietors, or persons belonging to any of these classes regarding the use or passage of water, make an order directing that a survey be made, and a record-of-rights be prepared, by a Revenue-officer, in order to ascertain and record the rights and obligations of each tenant and landlord in any local area, estate or tenure or part thereof, in respect of —

(a) the use by tenants of water for agricultural purposes, whether obtained from a river, jhil, tank or well or any other sources of supply; and

(b) the repair and maintenance of appliances for securing a supply of water for the cultivation of the land held by each tenant, whether or not such appliances be situated within the boundaries of such land.

  1. Power for Revenue-officer to record particulars on application of proprietor, tenure-holder or large proportion ofraiyats’.— On the application of one or more of the proprietors or tenure-holders, or of a large proportion of the raiyats’, of an estate or tenure, and on the applicant or applicants depositing or giving security for the required amount for expenses, a Revenue-officer may, subject to and in accordance with rules made in this behalf by the State Government, ascertain and record all or ,.my of the particulars specified in section 102 with respect to the estate or tenure or any part thereof.103A. Preliminary publication, amendment and final publication of record-of-rights. — (1) When a draft record-of-rights has been prepared the Revenue-officer shall publish the draft in the prescribed manner and for the prescribed period, and shall receive and consider any objections which may be made to any entry therein, or to any omission therefrom, during the period of publication.(2) When such objections have been considered and disposed of according to such rules as the State Government may make, and (if a settlement of land-revenue is being or is about to be made) the Settlement Rent-roll has been incorporated with the record under section 104F, sub section (3), the Revenue-officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner; and the publication shall be conclusive evidence that the record has been duly made under this Chapter.(3) Separate draft or final records may be published under sub-section (1) or sub-section (2) for different local areas, estates, tenure, or parts thereof.103B. Certificate of, and presumption as to, final publication and presumption as to correctness, of record-of-rights. — (1) When a record of-rights has been finally published under section 103A, the Revenue-officer shall, within such time as the Board of Revenue may, by general or special order, require, make a certificate stating the fact of such final publication and the date thereof, and shall date and subscribe the same with his name and official title.(2) The certificate of final publication, or in the absence of such certificate, a certificate signed by the Collector of any district in which the local area, estate, tenure or part thereof to which the record-of-rights relates is wholly or partly situate, stating that a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication and of the date thereof.(3) The State Government may, by notification, declare, with regard to any specified area, that a record-of-rights has been finally published for every village included in such area; and such notification shall be conclusive proof of such publication.(4) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom, is produced, such record-of-rights shall be presumed to have been finally published, unless such publication is expressly denied.(5) Every entry in a record-of-rights finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect.

Part II — Settlement of rents, preparation of Settlement Rent-roll and disposal of objections in cases where a settlement of land-revenue is being or is about to be made

  1. Settlement of rents and preparation of Settlement Rent-roll when to be undertaken by Revenue-officer.— In every case in which a settlement of land revenue is being or is about to be made, the Revenue officer shall, after publication of the draft of the record-of-rights under section 103A, sub-section (1 ),—

(a) settle fair and equitable rents for tenants of every class,

(b) notwithstanding anything contained in section 191, settle a fair and equitable rent for any land in respect of which he has recorded, in pursuance of clause (j) of section 102, that the occupant is not entitled to hold it without payment of rent, and

(c) prepare a Settlement Rent-roll :

Provided that the Revenue-officer shall not settle the rents of tenants of every class in an estate or tenure belonging to the Government, if it does not appear to the State Government to be expedient that he should do so.104A. Procedure for settlement of rents and preparation of Settlement Rent-roll under this Part. — (i) For the purposes of settling rents under this Part and preparing a Settlement Rent-roll, the Revenue-officer may proceed in any one or more of the following ways, or partly in one of those ways and partly in another, that is to say,—

(a) if in any case the landlord and tenant agree between themselves as to the amount of the rent fairly and equitably, payable, the Revenue-officer shall satisfy himself that the rent so agreed upon is fair and equitable, and if he is so satisfied, but not otherwise, it may be settled and recorded as the fair and equitable rent;

(b) the Revenue-officer may himself propose what he deems to be the fair and equitable rent, and if the amount so proposed is accepted, either orally or in writing by the tenant, and if the landlord, after notice to attend, raises no objection, the rent so proposed may be settled and recorded as the fair and equitable rent;

(c) if the circumstances are, in the opinion of the Revenue-officer, such as to make it practicable to prepare a Table of Rates showing for any local area, estate, tenure or village or part thereof, or for each class of land in any local area, estate, tenure or village or part thereof, the rate or rates of rent fairly and equitably payable by tenure-holders and raiyats’ and under-raiyats’ of each class, he may frame a Table of Rates and settle and record all or any of the rents on the basis of such rates in the manner hereinafter described;

(d) the Revenue-officer may settle all or any of the rents by maintaining the existing rentals recorded in the record-of-rights as published under section 103A, sub-section (1), or by enhancing or reducing such rentals :

Provided that in making any such settlement regard shall be had to the principles laid down in sections 6 to 9 (both inclusive), 27 to 36 (both inclusive), 38, 39, 43, 50 to 52 (both inclusive), 180 and 191.

(2) The Settlement Rent-roll shall show the name of each landlord and of each tenant whose rent has been settled, and the amount of each such tenant’s rent payable for the area shown against his name.

104B. Contents of Table of Rates. — (1) If a Table of Rates is prepared, it shall specify —

(a) the class or several classes of land for which, having regard to the nature of the soil, situation, means of irrigation, and other like considerations, it is in the opinion of the Revenue-officer necessary or practicable to fix a rate or different rates of rent; and

(b) the rate or rates of rent fairly and equitably payable by tenants holding land of each such class whose rent is liable to alteration.

(2) Local publication of Table. — When the Revenue-officer had prepared the Table of Rates he shall publish it in the local area, estate, tenure or village to which it relates, in the vernacular language prevailing in the district, and in the prescribed manner.(3) Revenue-officer to deal with objections. — Any person objecting to any entry in the Table of Rates may present a petition to the Revenue-officer within a period of one month after such publication, and the Revenue-officer shall consider any such objection and may alter or amend the Table.(4) Table to be submitted to superior Revenue authority. — If no objection is made within the said period of one month, or, where objections are made, after they have been disposed of, the Revenue-officer shall submit his proceedings to the Revenue authority empowered by rule made by the State Government to confirm the Tables and Rent-rolls prepared under this Part (hereinafter called the “confirming authority”), with a full statement of the grounds of his proposals, and shall forward any petitions of objection which he may have received.(5)Proceedings of confirming authority. — The confirming authority may confirm a Table submitted under sub-section (4), or may disallow the same, or may amend the same in any manner which appears to it proper, and may allow in whole or in part any objection forwarded therewith or subsequently made, or may return the case for further inquiry.(6) Effect of Table. — When a Table of Rates has been confirmed by the confirming authority, the order confirming it shall be conclusive evidence that the proceedings for the preparation of the Table have been duly conducted in accordance with this Act; and it may be presumed that the rates shown in the Table for tenants of each class, for each of land, are the fair and equitable rates payable for land of that class within the area to which the Table applies.104C. Application of Table of Rates. — When a Table of Rates has been confirmed under section 104B, sub-section (5), the Revenue-officer may settle all or any of the rents and prepare the Settlement Rent-roll on the basis of the rates shown in the Table, by calculating the rental of each tenure or each holding of a raiyat or under-raiyat on the area of such tenure or holding at the said rates :Provided that the Revenue-officer shall not be bound to apply the said rates in any particular case in which he may consider it unfair or inequitable to do so.104D. Rules and principles to be followed in framing Table of Rates and settling rents in accordance therewith. — In framing a Table of Rates under section 104B, and in settling rents under section 104C, the Revenue-officer shall be guided by such rules as the State Government may make in this behalf, and shall, so far as may be, and subject to the proviso to the said section 104C, have regard to the general principles of this Act regulating the enhancement or reduction of rents.104E. Preliminary publication and amendment of Settlement Rent-roll. — (1) When a Settlement Rent-roll for a local area, estate, tenure, or village or part thereof has been prepared, the Revenue-officer shall cause a draft of it to be published in the prescribed manner and for the prescribed period, and shall receive and consider any objections made to any entry therein, or omission therefrom, during the period of publication, and shall dispose of such objections according to such rules as the State Government may make.(2) The Revenue-officer may, of his own motion or on the applications of any party aggrieved, at any time before a Settlement Rent-roll is submitted to the confirming authority under section 104F, revise any rent entered therein :Provided that no such entry shall be revised until reasonable notice has been given to the parties concerned to appear and be heard in the matter.104F. Final revision of Settlement Rent-roll, and incorporation of the same in the record-of-rights. — (1) When all objections have been disposed of under section 104E, the Revenue-officer shall submit the Settlement Rent-roll to the confirming authority, with a full statement of the grounds of his proposals and a summary of the objections (if any) which he has received.(2) The confirming authority may sanction the Settlement Rent-roll, with or without amendment, or may return it for revision :Provided that no entry shall be amended, or omission supplied, until reasonable notice has been given to the parties concerned to appear and be heard in the matter.(3) After sanction by the confirming authority, the Revenue-officer shall finally frame the Settlement Rent-roll and shall incorporate it with the record of-rights published in draft under section 103A.104G. Appeal to, and revision by, superior Revenue authorities. —(1) An appeal, if presented within two months from the date of the order appealed against, shall lie from every order passed by a Revenue-officer prior to the final publication of the record-of-rights on any objection made under section 104B, sub-section (3), or section 104E; and such appeal shall he to the prescribed superior Revenue authority.(2) The Board of Revenue may, in any case under this Part, on application or of its own motion, direct the revision of any record-of-rights or any portion of a record-of-rights at any time within two years from the date of the certificate of final publication, but not so as to affect any order passed by a Civil Court under section 104H :Provided that no such direction shall be made until reasonable notice has been given to the parties concerned to appear and be heard in the matter.104H. Jurisdiction of Civil Courts in matters relating to rent. — (1) Any person aggrieved by an entry of a rent settled in a Settlement Rent-roll prepared under sections 101A to 104F and incorporated in a record-of-rights finally published under section 103A, or by an omission to settle a rent for entry in such Settlement Rent-roll, may institute a suit in the Civil Court which would have jurisdiction to entertain a suit for the possession of the land to which the entry relates or in respect of which the omission was made.(2) Such suit must be instituted within six months from the date of the certificate of final publication of the record-of-rights, or, if an appeal has been presented to a Revenue authority under section 104G, then within six months from the date of the disposal of such appeal.(3) Such suit may be instituted on any of the following grounds, and on no others, namely :

(a) that the land is not liable to the payment of rent;

(b) that the land, although entered in the record-of-rights as being held rent-free, is liable to the payment of rent;

(c) that the relation of landlord and tenant does not exist;

(d) that land has been wrongly recorded as part of a particular estate or tenancy, or wrongly omitted from the lands of an estate or tenancy;

(e) that the tenancy belongs to a class different from that to which he is shown in the record-of-right as belonging;

(f) that the Revenue-officer has not postponed the operation of the settled rent under the provisions of section 110, clause (a), or has wrongly fixed the date from which it is to take effect under that clause;

(g) that the special conditions and incidents of the tenancy have not been recorded, or have been wrongly recorded;

(h) that any right of way or other easement attaching to the land has not been recorded, or has been wrongly recorded.

No such suit shall be brought against the Government unless the Government is landlord or tenant of the land to which the aforesaid entry relates or in respect of which the aforesaid omission was made.(4) If it appears to the Court that the entry of rent settled is incorrect, it shall, in case (a) or case (c) mentioned in sub-section (3), declare that no rent is payable, and shall in any other case settle a fair rent;and in any case referred to in clause (f) or clause (g) of the said subsection (3) the Court may declare the date from which the rent settled is to take effect, or pass such order relating to the entry as it may think fit.(5) When the Court has declared under sub-section (4) that no rent is payable, the entry to the contrary effect in the record-of-rights shall be deemed to be cancelled.(6) In settling a fair rent under sub-section (4), the Court shall be guided by the rents of the other tenures or holdings of the same class comprised in the same Settlement Rent-roll as settled under sections 104A to 104F.(7) Any rent settled by the Court under sub-section (4) shall be deemed to have been duly settled in place of the rent entered in the Settlement Rent-roll.(8) Save as provided in this section, no suit shall be brought in any Civil Court in respect of the settlement of any rent or the omission to settle any rent under sections 104A to 104F.(9) When a Civil Court has passed final orders or a decree under this section, it shall notify the same to the Collector of the district.104J. Presumptions as to rents settled under sections 104A to 104G.—Subject to the provisions of section 104H, all rents settled under sections 104A to 104F, and entered in a record-of-rights finally published under section 103A, or settled under section 104G, shall be deemed to have been correctly settled and to be fair and equitable rents within the meaning of this Act.

Part III — Settlement of rents and decision of disputes in cases where a settlement of land-revenue is not being or is not about to be made

  1. Settlement of rents by Revenue-officer in cases where a settlement of land revenue is not being or is not about to be made.— (1) When, in any case in which a settlement of land-revenue is not being made or is not about to be made, either the landlord or the tenant applies, within four months from the date of the certificates of the final publication of the record-of-rights under section 103A, sub-section (2), for a settlement of rent, the Revenue-officer shall settle a fair and equitable rent in respect of the land held by the tenant.Explanation.— A superior landlord may apply for a settlement of rent notwithstanding that his estate or tenure or part thereof has been temporarily leased.(2) When, in any case in which a settlement of land-revenue is not being made or is not about to be made, the Revenue-officer has recorded, in pursuance of clause (j) of section 102, that the occupant of any land claimed to be held rent-free is not entitled to hold it without payment of rent, and either the landlord or the occupant applies, within four-months from the date of the certificate of the final publication of the record-of rights under section 103A, sub-section (2), for a settlement of rent, the Revenue-officer shall settle a fair and equitable rent for the land.(3) Every application under sub-section (1) or sub-section (2) shall, notwithstanding anything contained in the Court-fees Act, 1870, bear such stamp as the State Government may prescribe.(4) In settling rents under this section, the Revenue-officer shall presume, until the contrary is proved, that the existing rent is fair and equitable, shall have regard to the rules laid down in this Act for the guidance of the Civil Court in increasing or reducing rents, as the case may be.(5) The Revenue-officer may in any case under this section propose to the parties such rents as he considers fair and equitable; and the rents so proposed, if accepted in writing by the parties, may be recorded as the fair rents, and shall be deemed to have been duly settled under this Act.(6) Where the parties agree among themselves, by compromise or otherwise, as to the amount of the fair rent, the Revenue-officer shall satisfy himself that the amount agreed upon is fair and equitable, and, if so satisfied, but not otherwise, he shall record the amount so agreed upon as the fair and equitable rent. If not so satisfied, he shall himself settle a fair and equitable rent as provided in sub-sections (4) and (5).(7) Where the lands of the tenancy are included in different local areas for which separate records are framed, the period of limitation specified in sub-section (1) shall begin to run from the date of the certificate of final publication of the last record which contains entries relating to the tenancy.105A. Decision of questions arising during the course of settlement of rents under this Part.— Where, in any proceedings for the settlement of rents under this Part, any of the following issues arise :

(a) whether the land is, or is not, liable to the payment of rent;

(b) whether the land, although entered in the record-of-rights as being held rent-free, is liable to the payment of rent;

(c) whether the relation of landlord and tenants exists;

(d) whether the land has been wrongly recorded as part of a particular estate or tenancy, or wrongly omitted from the lands of an estate or tenancy;

(e) whether the tenant belongs to a class different from that to which he is shown in the record-of-rights as belonging;

(f) whether the special conditions and incidents of the tenancy or any right of way or other easement attaching to the land have not, or has not, been recorded, or have, or has, been wrongly recorded;

(g) whether the rent payable at the time of final publication of the record-of-rights was correctly entered, and if not, what was the rent payable at that time;

the Revenue-officer shall try and decide such issue and settle the rent under section 105 accordingly :Provided that the Revenue-officer shall not try any issue under this section, which has been, or is already, directly and substantially in issue between the same parties, or between parties under whom they or any of them claim, and has been tried and decided, or is already being tried, by a Revenue-officer in a suit instituted before him under section 106.105B. Court-fees for raising an issue under section 105A. — When any issue is raised under section 105A, the party raising it shall pay, in addition to any other Court-fees which he may be liable to pay, such Court-fees as he would have been liable to pay if he had claimed relief under section 106.105C. Costs not to be awarded ordinarily in proceedings under section 105 by Revenue-officer. — Except for reasons to be recorded in writing, no Revenue-officer shall award to any party any portion of his costs in a proceeding under section 105.106. Institution of suit before a Revenue-officer. — (1) In proceedings under this Part, a suit may be instituted before a Revenue-officer at any time within four months from the date of the certificate of the final publication of the record-of-rights under sub-section (2) of section 103A of this Act, by presenting a plaint on stamped paper, for the decision of any dispute regarding any entry which a Revenue-officer has made in, or any omission which the said officer has made from, the record, whether such dispute be between landlord and tenant, or between landlords of the same or of neighbouring estates, or between tenant and tenant, or as to whether the relationship of landlord and tenant exists, or as to whether land held rent-free is properly so held, or as to any other matter;and the Revenue-officer shall hear and decide the dispute :Provided that the Revenue-officer may, subject to such rules as the State Government may make in this behalf, transfer any particular case or class of cases to a competent Civil Court for Trial :

Provided also that in any suit under this section the Revenue-officer shall not try any issue which has been, or is already, directly and substantially in issue between the same parties or between parties under whom they or any of them claim, in proceedings for the settlement of rents under this Part, where such issue has been tried and decided, or is already being tried, by a Revenue-officer under section 105A.(2) Where the lands to which the dispute relates are situated in local areas for which separate records are framed, the period of limitation specified in sub-section (1) shall begin to run from the date of the certificate of final publication of the last record which contains entries relating to such lands.

107. Procedure to be adopted by Revenue-officer. — In all proceedings under section 105, section 105A and section 106, the Revenue-officer shall, subject to rules made by the State Government under this Act adopt the procedure laid down in the Code of Civil Procedure, 1908 for the trial of suits; and his decision in every such proceeding shall have the force and effect of a decree of a Civil Court in a suit between the parties, and, subject to the provisions of sections 108 and 115C shall be final.

108. Revision by Revenue-officer. — Any Revenue-officer specially, empowered by the State Government in this behalf may, on application or of his own motion, within twelve months from the making of any order or decision under section 105, section 105A, section 106 or section 107, revise the same, whether it was made by himself or by any other Revenue-officer, but not so as to affect any order passed or decree made under section 115C :Provided that no such order or decision shall be so revised if an appeal from it has been filed under section 115C or until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

108A. Correction by Revenue-officer of mistakes in record-of-rights.– Transferred as section 1I5B. by s. 74 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

109. Bar to jurisdiction of Civil Courts.— Subject to the provisions of section 115C, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under sections 105 to 108 (both inclusive) :Provided that nothing contained in this section shall debar a Civil Court from entertaining a suit concerning any matter which —

(a) was the subject-matter of an application under section 105, or section 105A, or of a suit under section 106, if such application or suit has been dismissed for default or withdrawn, or

(b) has not been finally adjudicated upon in any such proceeding or suit.

109A. Appeals from decisions of Revenue-officers. — Transferred as section 115C, by s. 76 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

Part IV — Supplemental provisions

109B. Power of Revenue-officer to presume that agreements or compromises are lawful. — In all proceedings under this Chapter, the Revenue- officer may presume that an agreement or compromise made or entered into by any landlord and his tenant is lawful;but, when the terms of the agreement or compromise are such as might unfairly or inequitably affect the rights of third parties, he shall not give effect to such agreement or compromise until he has given reasonable notice to such third parties to appear and be heard in the matter and unless and until he is satisfied that the statements made by the parties to the agreement or compromise are correct.

109C. Power to Revenue-officer to settle rents on agreement. — (1) Notwithstanding anything contained in section 109B, if, in any case while the record is being prepared, the landlord and tenant agree as to the rent which shall be recorded as payable for the tenure or holding, a Revenue-officer may, if he is satisfied that the rent agreed upon is fair and equitable, but not otherwise, settle such rent as a fair and equitable rent, although the terms of the agreement are such that, if they were embodied in a contract, they could not be enforced under this Act;and the provisions of section 113 shall apply to a rent so settled.(2) A landlord or tenant may appeal to the Special Judge appointed under section 115C, on the ground that the rent settled by the Revenue-officer, under sub-section (1), as a fair and equitable rent, was not agreed to by such landlord or tenant, and on no other ground.(3) The Board of Revenue may, on application made, or of its own motion in proceedings undertaken, within one year from the date of the order, under sub-section (1), settling a rent as a fair and equitable rent, direct the revision of the rent so settled :Provided that no such direction shall be made until reasonable notice has been given to the parties concerned to appear and be heard in the matter.109D. Note of decisions on record. — A note of all rents settled under section 105, of all decisions of issues under section 105A or section 106 and of all orders regarding the same on appeal or revision under section 108 or section 115C shall be made in, or appended to, the record-of-rights finally published under sub-section (2) of section 103A, and such notes shall be considered as part of the record.110. Date from which settled rent takes effect.— When a rent is settled by a Revenue-officer under this Chapter, it shall take effect from the beginning of the agricultural year next after the date of the decision fixing the rent or (if a settlement of land-revenue is being or is about to be made) the date of final publication of the record-of-rights :Provided as follows :

(a) if the land is comprised in an area, estate or tenure in respect of which a settlement of land-revenue is being or is about to be made, the rent settled shall, subject to the provisions of section 191, take effect from the expiration of the period of the current settlement, or from such other date after the expiration of that period as may be fixed by the Revenue-officer;

(b) if the land is not comprised in an area, estate or tenure as aforesaid, and if the existing rent has been fixed by a contract binding between the parties for an unexpired term of years, the rent settled shall take effect from the expiration of that term, or from such other date after the expiration of that term as may be fixed by the Revenue-officer.

  1. Stay of proceedings in Civil Court during preparation of record-of•rights.— When an order has been made under section 101, directing the preparation of a record-of-rights, then, subject to the provisions of section 104H, a Civil Court shall not,—

(a) where a settlement of land-revenue is being or is about to be made—until after the final publication of the record-of-rights, and

(b) Where a settlement of land-revenue is not being made or is not about to be made — until four months after the final publication of the record-of-rights, entertain any application made under section 158, or any suit or application for the alteration of the rent or the determination of the status of any tenant in the area to which the record-of-rights applies.

111A. Limitation of jurisdiction of Civil Courts in matters, other than rent, relating to record-of-rights. — No suit shall be brought in any Civil Court in respect of any order directing the preparation of a record of-rights under this Chapter, or in respect of the framing, publication, signing or attestation of such a record or of any part of it, or, save as provided in section 104H, for the alteration of any entry in such a record of a rent settled under sections 104A to 104F :Provided that any person who is dissatisfied with any entry in or omission from a record-of-rights framed in pursuance of an order made under section 101, sub-section (2), clause (d), which concerns a right of which he is in possession, may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877.111B. Stay of suits in which certain issues arise. — (1) Where a record of-rights has been prepared and finally published in respect of the land in any area in which a settlement of land-revenue is not being made, or is not about to be made, no application or suit affecting such land or any tenant thereof shall, within four months from the date of the certificate of final publication of such record-of-rights, be made or instituted in any Civil Court for the decision of any of the following issues, namely :

(a) whether the land is or is not liable to the payment of rent;

(b) whether the relation of landlord and tenant exists;

(c) whether the land is part of a particular estate or tenancy; or

(d) whether there is any special condition or incident of the tenancy, or where any right of way or other easement attaches to the land.

(2) If, before the final publication of the record-of-rights in such area, a suit involving the decision of any of the issues mentioned in sub-section (1) has been instituted in a Civil Court, the Revenue-officer shall not, in a suit under section 106 or in proceedings under section 105A, try such issue unless in such civil suit such issue is not in fact tried or decided.(3) Where, in the course of settling fair rents under section 105, the Revenue-officer finds that, by reason of a suit involving the decision of any of the issues mentioned in sub-section (1) having been instituted in a Civil Court before the final publication of the record-of-rights, or before a Revenue-officer under section 106, is unable to settle a fair rent until such issue is decided, the Revenue-officer shall stay the proceedings, for the settlement of a fair rent, pending a final decision on the issue;and, after the issue has been finally decided, he shall settle a fair rent, as if the record-of-rights has been framed in accordance with such decision.(4) Where the making of an application or institution of a suit has been delayed owing to the operation of sub-section (1), the period of four months therein mentioned shall be excluded in computing the period of limitation prescribed for such suit or application.

112. Power to authorise special settlement in special cases. — (1) The State Government may, on being satisfied that the exercise of the powers hereinafter mentioned is necessary in the interests of public order or of the local welfare, or that any landlord is demanding or exacting rents in excess of the rents entered as payable in a record-of-rights prepared under this Chapter, or of the rents payable by reason of enhancements lawfully made after the final publication of such record, invest a Revenue-officer with the following powers or either of them, namely :-

(a) power to settle all rents;

(b) power, when settling rents, to reduce rents, if in the opinion of the officer, the maintenance of existing rents would on any ground, whether specified in this Act or not, be unfair or inequitable.

(2) The powers given under this section may be made exercisable within a specified area, either generally or with reference to specified cases or classes of cases.(2a) A settlement of rents under this section shall be made in the manner provided by sections 104 to 104J (both inclusive).(2b) If any rent other than rent for which a decree has already been obtained is in arrear in respect of a tenancy at the time when a settlement of rents is made under this section, such arrear shall not be recoverable in any Court in so far as it exceeds the amount which would have ‘been due as rent of the tenancy had the settlement of rent taken place at the commencement of the period for which such rent is claimed.

113. Periods for which rents as settled are to remain unaltered. — (I) When the rent of a tenure or holding is settled under this Chapter, it shall not, except on the ground of a landlord’s improvement or of a subsequent alteration in the area of the tenure or holding, be enhanced, in the case of a tenure or an occupancy-holding or the holding of an under raiyat having occupancy rights, for fifteen years, and, in the case of a non-occupancy-holding or the holding of an under-raiyat not having occupancy rights, for five years; and no such rent shall be reduced within the periods aforesaid save on the ground of alteration in the area of the holding or on the ground specified in section 38, clause (a).(2) The said period of fifteen years and five years shall be counted from the date on which the rent settled takes effect under this Chapter.114. Expenses of proceedings under this Chapter. — (1) When the preparation of a record-of-rights has been directed or undertaken under this Chapter, in any case except where a settlement of land-revenue is being or is about to be made, the expenses incurred in carrying out the provisions of this Chapter in any local area, estate, tenure or part thereof (including expenses that may be incurred at any time, whether before or after the preparation of the record-of-rights, in the maintenance, repair or restoration of boundary marks and other survey marks erected for the purpose of carrying out the provisions of this Chapter), or such part of those expenses as the State Government may direct, shall be defrayed by the landlords, tenants and occupants of land in that local area, estate, tenure or part in such proportions and in such instalments (if any) as the State Government, having regard to all the circumstances, may determine.(2) The estimated amount of the expenses likely to be incurred for the maintenance, repair or restoration of boundary marks for a period not exceeding fifteen years, or such part of such amount as the State Government may direct, may be recovered in advance in the same manner as if such expenses had been already incurred.(3) The portion of the aforesaid expenses which any person is liable to pay shall be recoverable by the Government as if it were an arrear of land-revenue due in respect of the said local area, estate, tenure or part.(4) The cost of preparing copies of survey maps and records-of-rights under this Chapter for distribution to landlords and tenants shall be deemed to be part of the expenses incurred in carrying out the provisions of this Chapter.Explanation.— The word “tenure” in this section includes all revenue-free and rent-free tenures and holdings within a local area, estate or tenure.115. Presumption as to fixity of rent not to apply where record-of rights has been prepared.— When the particulars mentioned in section 102, clause (b), have been recorded under this Chapter in respect of any tenancy, the presumption under section 50 shall not thereafter apply to that tenancy.115A. Demarcation of village boundaries.— In the demarcation of village boundaries for the purpose of making a survey and preparing a record-of-rights under this Chapter, a Revenue-officer shall, so far as is possible, and subject to the provisions of the Bengal Survey Act, 1875, preserve, as the unit of survey and record, the area contained within the exterior boundaries of the village maps of the revenue survey, or other survey, if any, adopted under clause (19) (b) of section 3 as defining villages; and, where village maps prepared at such revenue or other survey exist, he shall not, without the sanction of the Board of Revenue, adopt any other area as such unit.115B. Correction by Revenue-officer of mistakes in record-of-rights. — Any Revenue-officer specially empowered by the State Government in this behalf may, on application or of his own motion, within two years from the date of the certificate of the final publication of the record-of-rights under sub-section (2) of section 103A, correct any entry in such record-of rights which he is satisfied has been made owing to a bona fidemistake :Provided that no such correction shall be made if an appeal affecting such entry has been filed under section 115C, or until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

115C. Appeals from decisions of Revenue-officers.— (1) The State Government shall appoint one or more persons to be a Special Judge or Special Judges for the purpose of hearing appeals from the decisions of Revenue-officers under sections 105 to 108 (both inclusive) and section 115B.(2) An appeal shall lie to the Special Judge from the decision of a Revenue-officer under sections 105 to 108 (both inclusive) and section 115B, and the provisions of the Code of Civil Procedure, 1908, relating to appeals shall, as nearly as may be, apply to all such appeals.(3) Subject to the provisions of sections 100 to 103, section 107, section 108 and section 144 of, and Order XLII in Schedule Ito the Code of Civil Procedure, 1908, an appeal shall lie to the High Court from the decision of a Special Judge in any case under this section (not being a decision settling a rent) as if he were a Court subordinate to the High Court within the meaning of section 100 of that Code :Provided that, if in a second appeal the High Court alters the decision of the Special Judge in respect of any of the particulars with reference to which the rent of any tenure or holding has been settled, the Court may settle a new rent for the tenure or holding, but in so doing shall be guided by the rents of the other tenures or holdings of the same class comprised in the same record as ascertained under section 102 or settled under section 105 or section 108.

CHAPTER XI

Non-accrual of occupancy and non-occupancy rights and record of proprietor’s private lands

  1. Saving as to certain lands.— (1) Nothing in Chapter V shall confer a right of occupancy in, and nothing in Chapter VI shall apply to, lands acquired or deemed to have been acquired under the Land Acquisition Act, 1894, or the Defence of India Rules made under the Defence of India Act, 1939, or the Requisitioned Land (Continuance of Powers) Act, 1947, or the West Bengal Land (Requisition and Acquisition) Act, 1948, or the West Bengal Land Development and Planning Act, 1948, or the West Bengal Requisitioned Land (Continuance of Powers) Act, 1951, or the Requisitioning and Acquisition of Immovable Property Act, 1952, or any other law for the time being in force providing for the compulsory acquisition of land for the Government or for any local authority or for a Railway Company, or lands belonging to the Government within a Cantonment, while such lands remained the property of the Government, or of any local authority or Railway Company or lands owned by the Government or by any local authority which are used for any public work, such as a road, canal or embankment, or are required for the repair or maintenance of the same, or to a proprietor’s private lands known askhamar. nij-nij jot. zirat. sir, or khamat, where any such land is held under a lease for a term of years or under a lease from year to year.(2) Where any land has vested in the State under the provisions of the West Bengal Estates Acquisition Act, 1953, and the land has not been retained by any intermediary or any person where such intermediary or person is entitled to retain it under that Act, then, as from the date of the vesting of the land in the State, nothing in Chapter V shall confer a right of occupancy in, and nothing in Chapter VI shall apply to, the land or any part thereof.117. Power for State Government to order survey and record of proprietor’s private lands. —The State Government may, from time to time, make an order directing a Revenue-officer to make a survey and record of all the lands in a specified local area which are a proprietor’s private lands within the meaning of section 116.118. Power for Revenue-officer to record private land on application of proprietor for tenant. — In the case of any land alleged to be a proprietor’s private land, on the application of the proprietor or of any tenant of the land, and on his depositing the required amount for expenses, a Revenue-officer may, subject to and in accordance with rules made in this behalf by the State Government, ascertain and record whether the land is or is not a proprietor’s private land.

119. Procedure for recording private land. — When a Revenue-officer proceeds under section 117 or 118, the provisions of sections 103A, 103B, 106, 107 108, 109 and 115C shall apply.

120. Rules for determination of proprietor’s private land. — (1) The Revenue-officer shall record as a proprietor’s private land —

(a) land which is proved to have been cultivated as khamar, zirat, sir, raj, nij-jot or khamat by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of this Act, and

(b) cultivated land which is recognised by village usage as proprietor’s khamar, zirat, sir-nij, nij jot or khamat.

(2) In determining whether any other land ought to be recorded as a proprietor’s private land, the officer shall have regard to local custom, and to the question whether the land was before the second day of March, 1883, specifically let as proprietor’s private land, and to any other evidence that may be produced; but shall presume that land is not a proprietor’s private land until the contrary is shown.(2a) Notwithstanding anything contained in any agreement or compromise, or in any decree which is proved to his satisfaction to have been Obtained by collusion or fraud, a Revenue-officer shall not record any land as a proprietor’s private land, unless it is proved to be such by satisfactory evidence of the nature described in sub-section (1) or sub-section (2).(3) If any question arises in a Civil Court as to whether land is or is not a proprietor’s private land, the Court shall have regard to the rules laid down in this section for the guidance of Revenue-officers.

CHAPTER XII

Distraint

121 to 142. Repealed by section 87 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

CHAPTER XIII

Judicial procedure
  1. Power to modify Civil Procedure Code in its application to landlord and tenant suits.— (1) The High Court may, from time to time, with the approval of the State Government, make rules, consistent with this Act declaring that any portions of the Code of Civil Procedure, 1908, shall not apply to suits between landlord and tenant as such or to any specified classes of such suits, or shall apply to them subject to modifications specified in the rules.(2) Subject to any rules so made and subject also to the other provisions of this Act, the Code of Civil Procedure, 1908, shall apply to all such suits.144. Jurisdiction in proceedings under Act.— (1) The cause of action in all suits between landlord and tenant as such shall, for the purposes of the Code of Civil Procedure, 1908, be deemed to have arisen within the local limits of the jurisdiction of the Civil Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the suit is brought and no suit between landlord and tenant as such shall be instituted in any Court other than a Court within the local jurisdiction of which the lands of the tenure or holding, as the case may be, are wholly or partly situated.(2) A landlord may institute one suit in respect of the rent of more than one tenancy, if the tenancies, in respect of the rent of which the suit is brought, are held in similar right and equal status by the same tenant under him :Provided that-

(i) the claim in respect of each tenancy shall be stated separately in the plaint;

(ii) separate decrees shall be made in respect of each tenancy;

(iii) the costs of the suit shall be apportioned by the Court in respect of each tenancy; and

(iv) separate Court-fees shall be levied on the plaint in respect of the claim on account of each tenancy.

(3) When under this Act a Civil Court is authorised to make an order on the application of a landlord or a tenant; the application shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the application is brought.145. Naibs or gumashtas to be recognised agents.— Every naib or gumashta of a landlord empowered in this behalf by a written authority under the hand of the landlord shall, for the purposes of every such suit or application, be deemed to be the recognised agent of the landlord within the meaning of the Code of Civil Procedure, 1908, notwithstanding that the landlord may reside within the local limits of the jurisdiction of the Court in the suit is to be instituted or is pending, or in which the application is made :Provided that notwithstanding anything contained in the Code of Civil Procedure, 1908, every such naib or guniashta may verify the pleadings on behalf of the landlord and shall not be required to obtain the permission of the Court for the purpose of such verification.146. Special register of suits. — The particulars mentioned in Rule I of Order VII in Schedule Ito the Code of Civil Procedure, 1908 shall, in the case of such suits, instead of being entered in the register of civil suits prescribed by Rule 2 of Order IV in Schedule I to the said Code, be entered in a special register to be kept by each Civil Court, in such form as the State Government may, from time to time, prescribe in this behalf.146A. Joint and several liability for rent of co-sharer tenants in a tenure or holding.— (1) Notwithstanding anything contained in the Indian Contract Act, 1872, all co-sharer tenants in a tenure or holding and their successors-in-interest shall be liable to the landlord jointly and severally for the rent payable to such landlord on account of the tenure or holding, whether such rent has accrued during the time of their own occupation or during the time of the occupation of their predecessors-in-interest.(2) Notwithstanding anything contained elsewhere in this Act or in any other law, a decree for arrears of rent of a tenure or holding and a sale in execution of such decree shall be valid against all the co-tenants, whether they have been made parties defendant to the suit or not and against the holding in the manner provided in Chapter XIV, if the defendants to the suit represented the entire body of co-sharer tenants in the tenure or holding for the rent of which the suit was brought. (3) The entire body of co-sharer tenants in a tenure or holding shall for the purposes of sub-section (2) be deemed to be represented by the defendants to the suit if such defendants include

(i) all the co-sharer tenants in the tenure or holding whose homesteads are situated in the village in which the tenure or holding is situated;

(ii) such of the co-sharer tenants in the tenure or holding, as have, at any time during the three years previous to that for the rent of which the suit is brought, made any payment of rent for the tenure or holding;

(iii) such co-sharer tenants who having purchased an interest in the tenure or holding, have given notice of the purchase under subsection (3) of section 12 or section 26C, as the case may be, or, who having succeeded to an interest by inheritance have given notice of their succession under section 15; and

(iv) all other co-sharer tenants in the tenure or holding whose names are entered in the landlord’s rent-roll.

146B. Procedure in rent suit against co-sharer tenants in a tenure or holding.— (1) Notwithstanding anything contained in the Indian Limitation Act, 1908, any person who claims that he should have been joined as a co-sharer tenant defendant in a suit for the recovery of arrears of rent due in respect of a tenure or holding may at any time before the hearing of the suit has been commenced apply to be made a party defendant to the suit, and the Court shall consider his claim, and if it finds that he should have been so joined shall join him as a party defendant :Provided that if any such person at any time in the course of such suit pays into Court the full amount of the claim together with such costs as the Court may direct, the suit shall be dismissed and in any such case the provisions of section 17 shall apply.(2) The provisions of sub-sections (2) and (3) of section 146A shall, so far as may be, apply in the case of a co-sharer tenant joined as a defendant under sub-section (1) of this section.147. Successive rent suits.— (1) Subject to the provisions of Rule 1 of Order XXIII in Schedule Ito the Code of Civil Procedure, 1908 where a landlord has instituted a suit against a raiyat for the recovery of any rent, of holding, the landlord shall not institute another suit against him for the recovery of any rent of that holding until after nine months from the date of the institution of the previous suit.(2) Nothing in sub-section (1) nor in Rule 2 of Order II in Schedule Ito the Code of Civil Procedure, 1908, shall be deemed to prevent a landlord instituting a suit for a portion of the arrears of rent in respect of a holding, provided that—

(a) the claim in such suit shall be for the rent or the balance of the rent due for a complete agricultural year or years; and

(b) the plaint shall contain in addition to the particulars specified in clause (b) of section 148, the total claim which might have been made on the date of the institution of the suit, and the period to which the said total claim relates.

(3) Where a subsequent suit for rent is instituted by a co-sharer landlord and has been consolidated with a previous suit for rent under the provisions of sub-section (4) of section 148A, the date of the institution of the subsequent suit shall, for the purposes of this section, be deemed to be the date of the suit which was first instituted and with which it was consolidated.147A. Compromise of suits between landlord and tenant. — (1) Notwithstanding anything contained in Rule 3 of Order XXIII in Schedule Ito the Code of Civil Procedure, 1908, if any suit between landlord and tenant as such is wholly or partly adjusted agreement or compromise, the Court shall not order an agreement or compromise to be recorded and shall not pass a decree in accordance with such agreement or compromise unless it is satisfied, for reasons to be recorded in writing, that the terms of such agreement or compromise are such that, if embodied in a contract, they could be enforced under this Act :Provided that, in the case of a suit instituted by the landlord to enhance the rent, the enhancement, if any, agreed upon may be decreed if the Court be satisfied, for reasons to be recorded in writing, that such enhancement is fair and equitable and in accordance with the rules laid down in this Act for the guidance of Courts in increasing rents.(2) Where the terms of any agreement or compromise are such as might, unfairly or inequitably affect the rights of third parties, the Court shall not pass a decree in accordance with such agreement or compromise, unless and until it is satisfied by evidence that the statements made by the parties thereto are correct.Illustration.— A, a proprietor, agrees that B, his tenant, shall be recorded as an occupancy-raiyat : this affects the rights of the tenants of B. The Court must, under this sub-section, inquire whether B is a tenure-holder or a raiyat as defined in section 5. If the Court finds on the evidence that B is a raiyat, it may pass a decree in accordance with the agreement, but shall n not do so if it finds that B is a tenure-holder.147B. Regard to be had by Civil Courts to entries in record-of-rights. — In all areas for which a record-of-rights has been prepared and finally published under sub-section (2) of section 103A, a Civil Court shall, in all suits between landlord and tenant as such, have regard to the entries in such record-of-rights relating to the subject-matter in dispute which may be produced before it, unless such entries have been proved by evidence to be incorrect; and when a Civil Court passes a decree at variance with such entries, it shall record its reasons for so doing.148. Procedure in rent suits. — The following rules shall apply to suits for the recovery of rent :

(a) sections 68 to 72 of the Code of Civil Procedure, 1908, and Rules 1 to 13 of Order XI, Rule 83 of Order XXI and Rule 2 of Order XLVIII in Schedule I to the said Code, and Schedule III to the said Code, shall not apply to any such suit;

(b) the plaint shall contain, in addition to the particulars, specified in Rules 1, 2, 4, 5 and 6 and sub-rule (2) of Rule 9 of Order VII in Schedule Ito the Code of Civil Procedure, 1908, a statement of the situation, designation, extent and boundaries of the land held by the tenant; or, where the plaintiff is unable to give the extent, or boundaries, in lieu thereof a description sufficient for identification. The plaint shall further contain a statement whether a record-of-rights has been prepared and finally published in respect of such land;

(c) where the suit is for the rent of land situated within an area for which a record-of-rights has been finally published, the plaint shall contain a statement of the serial number or numbers borne by the tenancy in the record-of-rights, and of the area and rental of the tenancy according to such record, unless the Court is satisfied, for reasons to be recorded in writing, that the plaintiff was prevented by any sufficient cause from furnishing such statement :

Provided that, in all cases in which the Court admits a plaint which does not contain such statement, the Court shall, and in any other case in which it sees fit the Court may, require the Collector to supply, without payment of fee, a verified or certified copy of, or extract from, the record-of-rights relating to the tenancy :

Provided also that, when the plaint contains such a statement, no statement of the situation, designation, extent and boundaries of the land held by the tenant as referred to in clause (b) shall be required, except in so far as may be necessary for the purposes of clause (d);

(d) where any changes have occurred in the area, survey plots, or rent of the tenancy since the record-of-rights was finally published, the plaint shall further contain a statement showing the particulars of such of changes;

(e) the summons shall be for the final disposal of the suit, unless the Court is of opinion that the summons should be for the settlement of issues only;

(f) the service of the summons may, if the High Court by rule, either generally, or specially for any local area, so directs, be effected either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the defendant and registered under Chapter VI of the Indian Post Office Act, 1898;

When a summons is so forwarded in a letter, and it is proved that the letter was duly posted and registered, the Court may presume that the summons has been duly served;

(g) notwithstanding anything contained in the Code of Civil Procedure, 1908, or any rules made thereunder the plaintiff in a suit for recovery of arrear of rent shall not be required to supply any identifier for the purpose of serving the summons on the defendant or on any witness, and the serving officer shall serve the summons after due inquiry as to the identify of the person on whom, or the house or property where, the summons is served. The serving officer shall serve the summons in the presence of at least two persons and he shall, whenever possible, require the signature of those persons to be endorsed on the original summons and, where he is unable to serve the summons, he shall, whenever possible, require the signatures of two persons of the locality to be so endorsed;

(h) notwithstanding anything contained in Rule 4(3) of Order 32 in Schedule I to the Code of Civil Procedure, 1908, the Court may serve on the natural guardian of a minor defendant in a suit for arrears of rent a notice informing him that he will be treated as the guardian of such defendant in respect of such suit, unless he appears and objects within such time, not being less than fourteen clear days after the service of the notice, as may be specified in the said notice, and, in default of compliance with such notice, such natural guardian shall, unless the Court otherwise directs, be deemed to be the duly appointed guardian of the said minor defendant for all the purposes of such suit;

(i) a written statement shall not be filed without the leave of the Court, but the Court shall record its reasons for granting or refusing such leave;

(j) the rules for recording the evidence of witnesses contained in Rule 13 of Order XVIII in Schedule Ito the Code of Civil Procedure, 1908, shall apply, whether an appeal is allowed or not;

(k) (i) notwithstanding anything contained in the Code of Civil Procedure, 1908, where a suit is instituted for rent entered in a record-of-rights finally published under Chapter X or where the rent is payable under a registered lease between the landlord and the tenant or where the annual rent payable has been decreed in a previous suit between the landlord and the tenant, the Court may, if the plaintiff desires to proceed under this section, issue a special summons in the prescribed form;

(ia) service of the special summons referred to in sub-clause (i) shall ordinarily be effected by forwarding summons by post in a letter with acknowledgement due addressed to the defendant and registered under Chapter VI of the Indian Post Office Act, 1898; and when a summons is so forwarded, and it is proved that the letter was duly posted and registered, the Court may presume that the summons has been duly served;

(ii) when a special summons referred to in sub-clause (i) has been served, if the defendant fails to appear and defend the suit, the allegations in the plaint as regards the rent due shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rent of six per cent. per annum from the date of the suit up to the date of payment and for costs with interest thereon :

Provided that the Court may at its discretion in any case in which it thinks fit, direct the plaintiff to adduce evidence in support of his claim :

Provided also that notwithstanding anything contained in section 13 of the Indian Evidence Act, 1872, where a decree has been passed under this clause, no statement in the plaint regarding the nature, area and incidents of the tenancy or regarding any liability other than the rent claimed as due shall be evidence against the tenant in any subsequent suit or proceeding;

(iii) within seven days after the passing of a decree under sub clause (ii) the Court shall send at the cost of the plaintiff to the defendant or defendants against whom the decree has been passed a registered postcard in the prescribed form stating the particulars contained in the decree and no action in execution of a decree shall be taken until a period of sixty days has elapsed since the date of the decree;

(iiia) notwithstanding anything contained in section 34 of the Code of Civil Procedure, 1908, no interest shall be payable from the date of the decree on the aggregate sum decreed, if such aggregate sum is paid in full by the judgment-debtor within sixty days from the date of the decree;

(iv) notwithstanding anything contained in Rule 13 of Order IX in Schedule Ito the Code of Civil Procedure, 1908, or in section 153A of this Act, where a decree is passed ex parte against a defendant under sub-clause (ii), he may apply to the Court by which the decree was passed for an order to set aside the decree and the Court, if it is satisfied that summons was not duly served and that there is prima facie evidence of a bona fide defence, may make an order setting aside the decree as against him or if necessary against all or any of the other defendants also;

(l) when any account-books, rent-rolls, collection-papers, measurement-papers, maps or extracts from records-of-rights have been produced by a party before any Court, and have been admitted in evidence in a suit pending therein;

copies of, extracts from, such documents, may be certified by a duly authorised officer of such Court to be true copies or extracts without the payment of any Court-fee, and such copies or extracts, may, with the permission of the Court, be substituted on the record for the originals, which may then be returned to the party;

and thereafter copies and extracts so certified, may be admitted in evidence in any other suit instituted in the same or any other Court, unless the Court before which they are produced sees fit to require the production of the originals;

(m) the Court may, when passing the decree, order on the oral application of the decree-holder the execution thereof, unless it is a decree for ejectment for arrears;

(n) notwithstanding anything contained in sub-rule (3) of Rule 11 of Order XXI in Schedule I to the Code of Civil Procedure, 1908, the Court shall not, unless for special reasons to be recorded in writing, direct the decree-holder to file a copy of the decree or any fresh vakalatnama for the purpose of executing the decree;

(o) notwithstanding anything contained in Rule 16 of Order XXI in Schedule Ito the Code of Civil Procedure, 1908, an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord’s interest in the land has become and is vested in him.

148A. Power of co-sharer landlord to sue for rent in respect of his share in a tenure or holding against the tenure or holding on making remaining co-sharers parties. — (1) A co-sharer landlord may institute a suit to recover the rent due to him in respect of his share in a tenure or holding, by making all the remaining co-sharer landlords parties defendant to the suit, and claiming that relief be granted to him in respect of his share of the rent against the entire tenure or holding.(2) On the plaint being admitted, the Court shall by summons in the prescribed form call upon the remaining co-sharer landlords aforesaid to join in the suit as co-plaintiffs for their shares of the rent due to them in respect of the tenure or holding up to the date of the institution of the suit.(3) On the date named in the summons for his appearance or on any subsequent date fixed by the Court in this behalf, any co-sharer landlord, who has been summoned as defendant, may apply to be joined in the suit as a co-plaintiff, and on his paying the Court-fee on the amount of his claim, he shall be joined as a co-plaintiff in respect of the rent claimed to be due to him up to the date of the institution of the suit.(4) If it comes to the notice of the Court that any co-sharer landlord has before the service upon him of a summons under sub-section (2) instituted a separate suit to recover his share of the rent of the tenure or holding, the separate suit shall be consolidated with that brought under sub-section (1) and such co-sharer landlord shall be deemed to be a co-plaintiff and shall amend his plaint so as to claim the rent due to him up to the date of the institution of the suit under sub-section (1) :Provided that, if the Court is not competent to consolidate and try the suit, such suit shall be transferred to a Court of competent jurisdiction for consolidation and trial.(5) The summons on all the defendants to the suit other than co-sharer landlords shall thereafter be served, and the Court shall thereupon proceed to the trial of the suit.(6) A decree passed by the Court for the rent claimed in a suit brought in accordance with the foregoing provisions of this section shall, so far as may be, specify separately the amounts payable to each co-sharer and shall, as regards the remedies for enforcing the same, be as effectual as a decree obtained by a sole landlord or an entire body of landlords in a suit brought for the rent due to all the co-sharers.(7) When one or more co-sharer landlords, having obtained a decree in a suit framed under this section, applies or apply for the execution of the decree by the sale of the tenure or holding, the Court shall, before proceeding to sell the tenure or holding, give notice of the application of the execution to the other co-sharers.(8) (i) In disposing of the proceeds of a sale in execution of the decree referred to in sub-section (6) the following rules, instead of those contained in section 73 of the Code of Civil Procedure, 1908, shall be observed,—

(a) there shall first be paid to the decree-holders the costs incurred by them in bringing the tenure or holding to sale;

(b) there shall in the next place be paid to the decree-holders the amount due to them under the decree in execution of which the sale was made;

(c) if there remains a balance after these sums have been paid, there shall be paid therefrom to the decree-holders and to any defendant landlords, who have not joined as plaintiffs, but have made application in this behalf within one month from the date of the confirmation of the sale, any rent which may have fallen due to them in respect of the tenure or holding between the institution of the suit and the date of the confirmation of the sale, in proportion to their respective shares in the tenure or holding :

Provided that the Court shall issue a notice to the judgment-debtor or his pleader, if any, before ordering any such payment;

(d) the balance (if any) remaining after the payment of the rent mentioned in clause (c) shall, upon the expiration of two months from the confirmation of the sale, be paid to the judgment-debtor on his application unless the Court for reasons to be recorded in writing otherwise directs.

(ii) If the judgment-debtor disputes the right of the decree-holder or of the co-sharer landlord who has been made a party defendant to receive any sum on account of rent under clause (c), the Court shall determine the dispute and the determination shall have the force of a decree.

(9) When a suit has been instituted under the provisions of sub-section (1), no co-sharer landlord, who has been made a party defendant thereto and duly served with summons issued under sub-section (2), shall be entitled to recover, save as co-plaintiff in that suit, any rent in respect of the tenure or holding for the period in suit or for any period previous thereto.(10) Where a suit instituted under the provisions of sub-section (1) has been withdrawn with leave to bring a fresh suit, the procedure, remedies and disabilities hereinbefore provided by this section shall apply to such fresh suit when instituted and to the parties thereto.(11) In the event of the holding or tenure not being sold as a result of a suit instituted under sub-section (1), nothing contained in Rule 2 of Order II in Schedule I to the Code of Civil Procedure 1908, shall preclude a co-sharer landlord who has been joined as plaintiff under sub-section (3) or is deemed to be a co-plaintiff under sub-section (4) from recovering by suit, rent and interest due to him and damages, if awarded, in respect of the tenure or holding for the period subsequent to the date of the institution of the suit under this section.(12) If the rent claimed in a plaint as amended under sub-section (4) is less than the rent claimed in the original plaint in the separate suit referred to in that sub-section, the balance of rent may be recovered under the provisions of clause (c) of sub-section (8) or of sub-section (11).149. Payment into Court of money admitted to be due to third person. — (1) When a defendant admits that money is due from him on account of rent, but pleads that it is due not to the plaintiff but to a third person, the Court shall refuse to take cognisance of the plea unless the defendant pays into Court the amount so admitted to be duo.(2) Where such a payment is made, the Court shall forthwith cause notice of the payment to be served on the third person.(3) Unless the third person within three months from the receipt of the notice institutes a suit against the plaintiff and therein obtains an order restraining payment out of the money, it shall be paid out to the plaintiff on his application.(4 ) Nothing in this section shall affect the right of any person to recover from the plaintiff money paid to him under sub-section (3).150. Payment into Court of money admitted to be due to landlord. —When a defendant admits that money is due from him to the plaintiff on account of rent, but pleads that the amount claimed is in excess of the amount due, the Court shall refuse to take cognisance of the plea unless the defendant pays into Court the amount so admitted to be due.151. Provision as to payment of portion of money. — When a defendant is liable to pay money into Court under section 149 Or 150, if the Court thinks that there are sufficient reasons for so ordering, it may take cognisance of the defendant’s plea on his paying into Court such reasonable portion of the money as the Court directs.152. Court to grant receipt. — When a defendant pays money into Court under either of the said sections, the Court shall give the defendant a receipt, and the receipt so given shall operate as an acquittance in the same manner and to the same extent as if it had been given by the plaintiff or the third person, as the case may be.153. Appeals in rent suits. — An appeal shall not lie from any decree or order passed, whether in the first instance or on appeal, in any suit instituted by a landlord for the recovery of rent where—

(a) the decree or order is passed by a District Judge, Additional Judge or Subordinate Judge, and the amount claimed in the suit does not exceed one hundred rupees; or

(b) the decree or order is passed by any other judicial officer specially empowered by the High Court to exercise final jurisdiction under this section, and the amount claimed in the suit does not exceed fifty rupees;

unless in either case the decree or order has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto, or a question of a right to enhance or vary the rent of a tenant, or a question of the amount of rent annually payable by a tenant :Provided that the District Judge may call for the record of any case in which a judicial officer as aforesaid has passed a decree or order to which this section applies, if it appears that the judicial officer has exercised a jurisdiction not vested in him by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of his jurisdiction illegally or with material irregularity; and may pass such order as the District Judge thinks fit.Explanation.— A question as to the regularity of the proceedings in publishing or conducting a sale in execution of a decree for arrears of rent is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto.153A. Deposit on application to set aside ex-parte decree. — Every application for an order under Rule 13 of Order IX in Schedule I to the Code of Civil Procedure, 1908 to set aside a decree passed ex parte, or for a review of judgment; under section 114 and Rule 1 of Order XLVII in Schedule I to the said Code, in a suit between a landlord and tenant as such, shall contain a statement of the injury sustained by the applicant by reason of the decree or judgment;and no such application shall be admitted—

(a) unless the applicant has, at or before the time when the application is admitted, deposited in the Court to which the application is presented the amount, if any, which he admits to be due from him to the decree-holder, or such amount as the Court may, for reasons to be recorded by it in writing, direct; or

(b) unless the Court, after considering the statement of injury is satisfied, for reasons to be recorded by it in writing that no such deposit is necessary.

  1. Date from which decree for enhancement takes effect.— A decree for enhancement of rent under this Act, if passed in a suit instituted in the first eight months of an agricultural year, shall ordinarily take effect on the commencement of the agricultural year next following; and, if passed in a suit instituted in the last four months of the agricultural year, shall ordinarily take effect on the commencement of the agricultural year next but one following; but nothing in this section shall prevent the Court from fixing, for special reasons, a later date from which any such decree shall take effect.155. Relief against forfeitures.— (1) A suit for the ejectment of a tenant, on the ground —

(a) that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or

(b) that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained unless the landlord has served, in the prescribed manner, a notice on the tenant specifying the particular misuse or breach complained of, and, where the misuse or breach is capable of remedy, requiring the tenant to remedy the same, and, in any case, to pay reasonable compensation for the misuse or breach, and the tenant has failed to comply within a reasonable time with that request.

(2) A decree passed in favour of a landlord in any such suit shall declare the amount of compensation which would reasonably be payable to the plaintiff for the misuse or breach, and whether, in the opinion of the Court, the misuse or breach is capable of remedy, and shall fix a period during which it shall be open to the defendant to pay that amount to the plaintiff, and, where the misuse or breach is declared to be capable of remedy, to remedy the same.(3) The Court may, from time to time, for special reasons, extend a period fixed by it under sub-section (2).(4) If the defendant, within the period or extended period (as the case may be) fixed by the Court under this section, pays the compensation mentioned in the decree, and, where the misuse or breach is declared by the Court to be capable of remedy, remedies the misuse or breach to the satisfaction of the Court, the decree shall not be executed.156. Rights of ejected raiyats’ or under-raiyats’ in respect of crops and land prepared for sowing. — The following rules shall apply in the case of every raiyat or under-raiyat ejected from a holding—

(a) when the raiyat or under-raiyat has, before the date of his ejectment, sown or planted crops in any land comprised to the holding, he shall be entitled, at the option of the landlord, either to retain possession of that land and to use it for the purpose of tending and gathering in the crops, or to receive from the landlord the value of the crops as estimated by the Court executing the decree for ejectment;

(b) when the raiyat or under-raiyat has, before the date of his ejectment, prepared for sowing any land comprised in his holding, but has not sown or planted crops in that land, he shall be entitled to receive from the landlord the value of the labour and capital expended by him in so preparing the land, as estimated by the Court executing the decree for ejectment, together with reasonable interest on that value;

(c) but a raiyat or under-raiyat shall not be entitled to retain possession of any land or receive any sum in respect thereof under this section where, after the commencement of proceedings by the landlord for his ejectment, he has cultivated or prepared the land contrary to the local usage; and

(d) if the landlord elects under this section to allow a raiyat or under raiyat to retain possession of the land, the raiyat or under-raiyat shall pay to the landlord, for the use and occupation of the land during the period for which he is allowed to retain possession of the same, such rent as the Court executing the decree for ejectment may deem reasonable.

  1. Power for Court to fix fair rent as alternative to ejectment.— When a plaintiff institutes a suit for the ejectment of a trespasser he may, if he thinks fit, claim as alternative relief that the defendant be declared liable to pay for the land in his possession a fair and equitable rent to be determined by the Court, and the Court may grant such relief accordingly.158. Application to determine incidents of tenancy.— (1) Subject to the provisions of section 111, the Court having jurisdiction to determine a suit for the possession of land may, on the application of either the landlord or the tenant of the land, determine all or any of the following matters, (namely) :

(a) the situation, quantity and boundaries of the land;

(b) the name and description of the tenant hereof (if any);

(c) the class or classes to which he belongs, that is to say, whether he is a tenure-holder, raiyat holding at fixed rates, occupancy raiyat, non-occupancy-raiyat, or under-raiyat with or without a right of occupancy, and, if he is a tenure-holder, whether he is a permanent tenure-holder or not and whether his rent is liable to enhancement during the continuance of his tenure; and

(d) the rent payable by him at the time of the application.

(2) If, in the opinion of the Court, any of these matters cannot be satisfactorily determined without a local inquiry, the Court may direct that a local inquiry be held under Order 26 in Schedule I to, and section 78 of, the Code of Civil Procedure, 1908, by such Revenue-officer as the State Government may authorise in that behalf by rule made under Rule 9 of Order 26 in Schedule I to the said Code.(3) The order on any application under this section shall have the effect of, and be subject to the like appeal as, a decree.

CHAPTER XIIIA

Summary procedure for the recovery of rents under the Bengal Public Demands Recovery Act, 1913

  1. to 158AAA.—Repealed by section 33 of the Bengal Tenancy (Amendment) Act, 1938 (Bengal Act No. 6 of 1938).

CHAPTER XIV

Sale for Arrears under Decree

158B. Passing of tenure or holding sold in execution of decree or certificate.— Repealed by s. 99 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).159. General powers of purchaser as to avoidance of incumbrances.—(1) Where a tenure or holding is sold in execution of a decree for arrears due in respect thereof, the purchaser shall take subject to the interests defined in this Chapter as “protected interests”, but with power to annul the interests defined in this Chapter as “incumbrances” :Provided as follows :

(a) a registered and notified incumbrance within the meaning of this Chapter shall not be so annulled except in the case hereinafter mentioned in that behalf;

(b) the power to annul shall be exercisable only in manner by this Chapter directed.

(2) Notwithstanding anything contained in the Code of Civil Procedure, 1908, whenever a tenure or holding is sold in execution of a decree for arrears of rent and the sale is confirmed, the purchase shall take effect from the date of confirmation of the sale.

160. Protected interests. — The following shall be deemed to be protected interests within the meaning of this Chapter :—

(a) any under-tenure existing from the time of the Permanent Settlement;

(b) any under-tenure recognised by the settlement proceedings of any current temporary settlement as a tenure at a rent fixed for the period of that settlement;

(c) any lease of land whereon dwelling houses, manufactories or other permanent buildings have been erected, or permanent gardens, plantations, tanks, canals, places of worship or burning or burying grounds have been made;

(d) any right of occupancy;

(e) the right of a non-occupancy-raiyat to hold for five years at a rent fixed under Chapter VI by a Court, or under Chapter X by a Revenue-officer;

(f) any right conferred on an occupancy-raiyat to hold at a rent which was a fair and reasonable rent at the time the right was conferred;

(ff) the right of a raiyat at fixed rates to hold at a fixed rent or rate of rent which has not been changed during twenty years; and

(g) any right or interest which the landlord at whose instance the tenure or holding is sold, or his predecessor in title, has expressly and in writing given the tenant for the time being permission to create.

  1. Meaning of “incumbrance” and “registered and notified incumbrance”.— For the purposes of this Chapter—

(a) the term “incumbrance”, used with reference to a tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in section 160;

(b) the term “registered and notified incumbrance”, used with reference to a tenure or holding sold or liable to sale in execution of a decree for an arrear of rent due in respect thereof, means an incumbrance created by a registered instrument, of which a copy has, not less than three months bet ire the accrual of the arrear, been served on the landlord in manner hereinafter provided;

(c) the terms “arrears” and “arrear of rent” shall be deemed to include interest decreed under section 67 or damages awarded in lieu of interest under sub-section (1) of section 68.

  1. Application for sale of tenure or holding.— When a decree has been passed for an arrear of rent due for a tenure or holding, and the decree-holder applies under Rule 11(2) of Order XXI in Schedule I to the Code of Civil Procedure, 1908, for the attachment and sale of the tenure or holding in execution of the decree, he shall produce a. statement showing thepargana, estate and village in which the land comprised in the tenure or holding is situate, the yearly rent payable for the same and the total amount recoverable under the decree.

163. Combined order of attachment and proclamation of sale to be issued.— (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908, when the decree-holder makes the application mentioned in section 162, the Court, if it admits the application under Rule 17 of Order XXI in Schedule I to the said Code and orders execution of the decree as applied for, shall issue a combined order of attachment and proclamation in the prescribed form.(2) The proclamation shall, in addition to stating and specifying the particulars mentioned in Rule 66 of Order XXI in Schedule Ito the said Code, announce —

(a) in the case of a tenure or a holding of a raiyat holding at fixed rates, that the tenure or holding will first be put up to auction subject to the registered and notified incumbrances, and will be sold subject to those incumbrances if the sum bid is sufficient to liquidate the amount of the decree and costs, and that otherwise it will, if the decree-holder so desires, be sold on a subsequent day, of which due notice will be given, with power to annul all incumbrances; and

(b) in the case of an occupancy-holding not held at fixed rates, that the holding will be sold with power to annul all incumbrances.

(3) Notwithstanding anything contained in sub-rules (1) and (2) of Rule 67 of Order XXI in Schedule I to the said Code, the proclamation shall be published in the following manner :

(a) by beat of drum at some place on or adjacent to the land comprised in the tenure or holding ordered to be sold and by fixing up a copy thereof in a conspicuous place on such land,

(b) by affixing a copy thereof in a conspicuous place at the Court house of the issuing Court,

(c) by sending in the prescribed form by registered post to the judgment-debtor a concise statement of the order of attachment and proclamation at the time of the issue of the proclamation, and

(d) in such other manner as may be prescribed.

(4) Notwithstanding anything contained in Rule 68 of Order XXI in Schedule Ito the said Code, the sale shall not without the consent in writing of the judgment-debtor, take place until after the expiration of at least thirty days, calculated from the date on which the copy of the proclamation has been fixed up on the land comprised in the tenure or holding ordered to be sold.164. Sale of tenure or holding subject to registered and notified incumbrances, and effect thereof. — (I) When tenure or holding at fixed rates has been advertised for sale under section 163, it shall be put up to auction subject to registered and notified incumbrances; and, if the bidding reaches a sum sufficient to liquidate the amount of the decree and costs, including the costs of sale, the tenure or holding shall be sold subject to such incumbrances.(2) The purchaser at a sale under this section may, in manner provided by section 167, and not otherwise, annul any incumbrance upon the tenure or holding not being a registered and notified incumbrance.

165. Sale of tenure or holding ‘with power to avoid all incumbrances, and effect thereof. — (1) If the bidding for a tenure or a holding at fixed rates put up to auction under section 164 does not reach a sum sufficient to liquidate the amount of the decree and costs as aforesaid, and if the decree-holder thereupon desires that the tenure or holding be sold with power to avoid all incumbrances, the officer holding the sale shall adjourn the sale and make a fresh proclamation in accordance with the procedure provided in sub-section (3) of section 163, announcing that the tenure or holding will be put up to auction and sold with power to avoid all incumbrances upon a future day specified therein, not less than fifteen or more than thirty days from the date of the postponement; and upon that day the tenure or holding shall be put up to auction and sold with power to avoid all incumbrances.(2) The purchaser at a sale under this section may, in manner provided by section 167, and not otherwise, annul any incumbrance on the tenure or holding.

166. Sale of occupancy-holding with power to avoid all incumbrances, and effect thereof. — (1) When an occupancy holding not held at fixed rates has been advertised for sale under section 163, it shall be put up to auction and sold with power to avoid all incumbrances.(2) The purchaser at a sale under this section may, in manner provided section 167, and not otherwise, annul any incumbrance on the holding.

167. Procedure for annulling incumbrances under sections 164, 165 or 166.— (1) A purchaser having power to annul an incumbrance under sections 164, 165 or 166 or under the Bengal Public Demands Recovery Act, 1913, and desiring to annul the same, may, within one year from the date of the confirmation of the sale or the date on which he first has notice of the incumbrance, whichever is later, present to the Court which passed the decree or the Revenue-officer who made -the order, as the case may be, for sale of the property an application in writing, requesting him to serve on the incumbrancer a notice declaring that the incumbrance is annulled.(2) Every such application must be accompanied by such fee for the service of the notice as the Board of Revenue may fix in this behalf.(3) When an application for service of a notice is made in manner provided by this section, the Court or Revenue-officer, as the case may be, shall cause the notice to be served in compliance therewith, and the incumbrance shall be deemed to be annulled from the date on which it is so served.(4) When a tenure or holding is sold in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913, for arrears due in respect thereof, and there is on the tenure or holding a protected interest of the kind specified in section 160, clause (c) the purchaser may, if he has power under this Chapter or that Act to avoid all incumbrances, sue to enhance the rent of the land which is the subject of the protected interest. On proof that the land is held at a rent which was not at the time the lease was granted a fair rent, the Court may enhance the rent to such amount as appears to be fair and equitable.This sub-section shall not apply to land which has been held for a term exceeding twelve years at a fixed rent equal to the rent of good arable land.

168. Power to direct that occupancy-holding be dealt with under sections 159 to 167 as tenures.— (1) The State Government may, from time to time, by notification in the Official Gazette, direct that occupancy-holdings or any specified class of occupancy-holdings in any local area put up for sale in execution of a decree for an arrear of rent due on them shall, before being put up with power to avoid all incumbrances, be put up subject to registered and notified incumbrances, and may by like notification rescind any such direction.(2) While any such direction remains in force in respect of any local area, all occupancy-holdings, or, as the case may be, occupancy-holdings of the specified class in that local area, shall, for the purposes of sale under sections 159 to 167 of this Chapter, be treated in all respects as if they were tenures.

168A. Attachment and sale of tenure or holding for arrears of rent due thereon, and liability of purchasers thereof. — (1) Notwithstanding anything contained elsewhere in this Act, or in any other law, or in any contract—

(a) a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree, or a certificate for such arrears signed under the Bengal Public Demands Recovery Act, 1913, shall not be executed by the attachment and sale of any movable or immovable property other than the entire-tenure or holding to which the decree or certificate relates :

Provided that the provisions of this clause shall not apply if, in any manner other than by surrender of the tenure or holding, the term of the tenancy expires before an application is made for the execution of such a decree or certificate;

(b) the purchaser at a sale referred to in clause (a) shall be liable to pay to the decree-holder or certificate-holder the deficiency, if any, between the purchase price and the amount due under the decree or certificate together with the costs incurred in bringing the tenure or holding to sale and any rent which may have become payable to the decree-holder between the date of the institution of the suit and the date of the confirmation of the sale.

(2) In any proceeding pending on the date of the commencement of the Bengal Tenancy (Amendment) Act, 1940, in execution of a decree or certificate to which the provisions of sub-section (1) apply, if there has been attached any immovable property of the judgment-debtor other than the entire tenure or holding to which the decree or certificate relates, and if the property so attached has not been sold, the Court or Certificate-officer, as the case may be, shall, on the application of the judgment-debtor, direct that, on payment by the judgment-debtor, of the costs of the attachment, the property so attached shall be released.(3) A sale referred to in clause (a) of sub-section (1) shall not be confirmed until the purchaser has deposited with the Court or Certificate officer, as the case may be, the sum referred to in clause (b) of that sub-section.

169. Rules for disposal of the sale-proceeds. — (1) In disposing of the proceeds of a sale under this Chapter other than a sale in execution of a decree in a suit instituted under sub-section (1) of section 148A the following rules, instead of those contained in section 73 of the Code of Civil Procedure, 1908, shall be observed, that is to say :

(a) there shall first be paid to the decree-holder the costs incurred by him in bringing the tenure or holding to sale;

(b) there shall, in the next place, be paid to the decree-holder the amount due to him under the decree in execution of which the sale was made;

(c) if there remains a balance after these sums have been paid, there shall be paid to the decree-holder therefrom the costs of the application under this section and any rent which may have fallen due to him in respect of the tenure or holding between the institution of the suit and the date of the confirmation of the sale;

(d) the balance (if any) remaining after the payment of the rent mentioned in clause (c) shall, upon the expiration of two months from the confirmation of the sale, be paid to the judgment-debtor upon his application unless the Court for reasons to be recorded in writing otherwise directs.

(2) If the judgment-debtor disputes the decree-holder’s right to receive any sum on account of rent under clause (c), the Court shall determine the dispute, and the determination shall have the force of a decree.170. Tenure or holding to be released from attachment only on payment into Court of amount of decree, with costs, or on confession of satisfaction by decree-holder. — (1) Rules 58 to 63 (both inclusive) of Order XXI in Schedule I to the Code of Civil Procedure, 1908 shall not apply to a tenure or holding attached in execution of a decree for arrears due thereon.(2) When an order for the sale of a tenure or holding in execution of such a decree has been made, the tenure or holding shall not be released from attachment unless, before it is knocked down to the auction-purchaser, the amount of the decree, including the costs decreed, together with the costs incurred in order to the sale, is paid into Court, or the decree-holder makes an application for the release of the tenure or holding on the ground that the decree has been satisfied out of Court.(3) The judgment-debtor, or any person whose interests are affected by the sale, may pay money into Court under this section.(4) The withdrawal of the amount deposited under this section or section 174 by the decree-holder landlord shall not operate as an admission of the transferability of the tenure or holding sold in execution of the decree.171. Amount paid into Court to prevent sale to be in certain cases a mortgage-debt on the tenure or holding. — (1) When any person whose interests are affected by the sale of a tenure or holding advertised for sale under this Chapter or in execution of a certificate for arrears of rent due in respect thereof, signed under the Bengal Public Demands Recovery Act, 1913, pays into Court the amount requisite to prevent the sale,—

(a) the amount so paid by him shall be deemed to be a debt bearing interest at twelve per centum per annum and secured by a mortgage of the tenure or holding to him;

(b) his mortgage shall take priority of every other charge on the tenure or holding other than a charge for arrear of rent; and

(c) he shall be entitled to possession of the tenure or holding as mortgagee of the tenant, and to retain possession of it as such until the debt, with the interest due thereon, has been discharged.

(2) Nothing in this section shall affect any other remedy to which any such person would be entitled.

172. Inferior tenant paying into Court may deduct from rent. —When a tenure or holding is advertised for sale —

(a) under this Chapter, in execution of a decree against a superior tenant defaulting, or

(b) in execution of a certificate, signed under the Bengal Public Demands Recovery Act, 1913, for arrears of rent due in respect of the tenure or holding from a superior tenant defaulting, or when such sale is set aside under section 174—

and an inferior tenant pays money into Court in order to prevent or set aside the sale, as the case may be, such inferior tenant may, in addition to any other remedy provided for him by law, deduct the whole or any portion of the amount so paid from any rent payable by him to his immediate landlord; and that landlord, if he is not the defaulter, may, in like manner, deduct the amount so deducted from any rent payable by him to his immediate landlord, and so on until the defaulter is reached.173. Decree-holder may bid at sale; judgment-debtor may not. —(1) Notwithstanding anything contained in Rule 72 of Order XXI in Schedule I to the Code of Civil Procedure, 1908 the holder of a decree in execution of which a tenure or holding is sold under this Chapter may, without the permission of the Court, bid for or purchase the tenure or holding.(2) The judgment-debtor shall not bid for or purchase a tenure.or holding so sold.(3) When a judgment-debtor purchases by himself or through another person a tenure or holding so sold, the Court may, if it thinks fit, on the application of the decree-holder or any other person interested in the sale, by order and any deficiency of price which may happen on the resale, and all expenses attending it, shall be paid by the judgment-debtor.174. Application to set aside sale. — (1) Rules 89 and 90 of Order XXI in Schedule Ito the Code of Civil Procedure, 1908, shall not apply in cases where a tenure or holding has been sold for arrears of rent due thereon, but in such cases the judgment-debtor, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale apply to the Court to set aside the sale, on his depositing —

(a) for payment to the decree-holder, the amount recoverable under the decree up to the date when the deposit is made, with costs;

(b) for payment to the auction-purchaser, as penalty a sum equal to five percent of the purchase-money, but not less than one rupee.

(2) Where a person makes an application under sub-section (3) for setting aside the sale of his tenure or holding he shall not, unless he withdraws that application, be entitled to make or prosecute an application made under sub-section (1).(3) Where a tenure or holding has been sold for arrears of rent due thereon, the decree-holder, the judgment-debtor, or any person whose interests are affected by the sale, may, at any time within six months from the date of the sale, apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting the sale :Provided as follows:-

(a) no sale shall be set aside on any such ground unless the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud; and

(b) no application made by a judgment-debtor or any person whose interests are affected by the sale under this sub-section shall be allowed unless the applicant either deposits the amount recoverable from him in execution of the decree or satisfies the Court, for reasons to be recorded by it in writing, that no such deposit is necessary.

(4) Rule 91 of Order XXI in Schedule Ito the Code of Civil Procedure, 1908, shall not apply to any sale under this Chapter.(5) An appeal shall lie against an order setting aside of refusing to set aside a sale :Provided that where the Court has refused to set aside the sale on the application of the judgment-debtor or any person whose interests are affected by the sale and the amount recoverable in execution of the decree is not in deposit in Court, no such appeal shall be admitted unless the appellant deposit such amount in Court.174A. Sale when to become absolute or of be set aside, and return of purchase money in certain cases. — (1) Where no application is made under sub-section (1) of section 174 within thirty days from the date of sale or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.(2) Where such application is made and allowed, and where in the case of an application under sub-section (1) of section 174, the deposit required by that sub-section is made within thirty days from the date of sale, the Court shall make an order setting aside the sale :Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.(3) Where a sale is set aside under this section, the purchaser shall be entitled to an order against any person to whom the purchase money has been paid for its repayment with or without interests as the Court may direct.(4) No suit to set aside an order made under this section shall be brought by any person against whom such order is made.(5) Notwithstanding anything contained in this section, an application may be made under sub-section (3) of section 174 to set aside the sale, and where such application is allowed the order made under sub-section (1) confirming the sale shall be deemed to be cancelled.

175. Registration of certain instruments creating incumbrances.– Repealed by s. 13 of the Bengal Tenancy (Amendment) Act, 1930 (Bengal Act No. 3 of 1930).176. Notification of incumbrances to landlord. — Every officer who has whether before or after the passing of this Act, registered an instrument executed by a tenant of a tenure or holding and creating an incumbrance on the tenure or holding, shall, at the request of the tenant or of the person in whose favour the incumbrance is created, and on payment by him of such fee as the State Government may fix in this behalf, notify the incumbrance to the landlord by causing a copy of the instrument to be served on him in the prescribed manner.177. Power to create incumbrances not extended. — Nothing contained in this Chapter shall be deemed to enable a person to create an incumbrance which he could not otherwise lawfully create.

CHAPTER XV

Contract and custom

  1. Restrictions on exclusion of Act by agreement.— (1) Nothing in any contract between a landlord and a tenant made before or after the passing of this Act —

(a) shall bar in perpetuity the acquisition of an occupancy-right in land, or

(b) shall take away an occupancy-right in existence at the date of contract, or

(c) shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of this Act, or

(d) shall take away or limit the right of a tenant, as provided by this Act, to make improvements and claim compensation for them, or

(e) shall entitle a landlord to recover as rent, from a tenant whose rent is a share, as opposed to a fixed quantity of produce, produce in excess of half the gross produce of the holding for the year which the rent is claimed, or

(f) shall take away or limit the rights of an under-raiyat as against his immediate landlord, as set forth in Chapter VII, or

(g) shall take away or limit the right of an occupancy-raiyat to transfer his holding or any share or portion thereof in accordance with the provisions of sections 26B to 26Q, or

(h) shall take away or limit the rights of occupancy-raiyats’ in trees on their holdings, as provided in section 23A, or

(i) shall affect the provisions of section 67 relating to interest payable on arrears of rent.

(2) Nothing in any contract made between a landlord and a tenant since the 15th day of July, 1880, and before the passing of this Act shall prevent a raiyat from acquiring in accordance with this Act an occupancy-right in land.(3) Nothing in any contract made between a landlord and a tenant after the passing of this Act shall —

(a) prevent a raiyat from acquiring in accordance with this Act, an occupancy-right in land;

(b) take away or limit the right of an occupancy-raiyat to use land as provided by section 23;

(c) take away the right of a raiyat or under-raiyat to surrender his holding in accordance with section 86;

(d) take away the right of an occupancy-raiyat to sub-let subject to and in accordance with the provisions of this Act;

(e) take away the right of a raiyat to apply for a reduction of rent under section 38 or section 52;

(g) Omitted

(h) Omitted

Provided as follows :—

(i) nothing in this section shall affect the terms or conditions of a lease granted bona fide for the reclamation of waste land, except that, where, on or after the expiration of the term created by the lease, the lessee would under Chapter V be entitled to an occupancy-right in the land comprised in the lease, nothing in the lease shall prevent him from acquiring that right;

(ii) when a landlord has reclaimed waste land by his own servants or hired labourers, and subsequently lets the same or a part thereof to a raiyat, nothing, in this Act shall affect the terms of any contract whereby a raiyat is prevented from acquiring an occupancy-right in the land or part during a period of thirty years from the date on which the land or part is first let to a raiyat;

(iii) nothing in this section shall affect the terms or conditions of any contract for the temporary cultivation of horticultural or orchard land with agricultural crops.

Explanation.— The expression “horticultural land”, as used in proviso (iii), means garden land in the occupation of a proprietor or permanent tenure-holder, which is used bona fide for the cultivation of flowers or vegetables, or both, grown for the personal use of such proprietor or permanent tenure-holder and his family, and not for profit or sale.

179. Permanent mukarrari leases. — Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease on any terms agreed on between him and his tenant :Provided that such proprietor or holder shall not be entitled to recover interest at a rate exceeding that set forth in section 67 or anything that is an abwab or the recovery of which is illegal under the provisions of section 74 or sub-section (3) of section 77.

180. Utbandi, chur and dearah lands. — (1) Notwithstanding anything in this Act, a raiyat

(a) who in any part of the country where the custom of utbandi prevails, holds land ordinarily let under that custom and for the time being let under that custom, or

(b) who holds land of the kind known as chur or dearah, shall not acquire a right of occupancy—

in case (a) in land ordinarily held under the custom of utbandi and for the time being held under that custom, or in case (b), in the chur or dearahland, until he has held the land in question for twelve continuous years and, until he, acquires a right of occupancy in the land, he shall be liable to pay such rent for his holding as may be agreed on between him and his landlord.(2) Chapter VI shall not apply to raiyats’ holding land under the custom of utbandi in respect of land held by them under that custom.(3) The Collector may, on the application of either the landlord or the tenant or on a reference from the Civil Court, or, after hearing both landlord and tenant, of his own motion declare that any land has ceased to be chur or dearah land within the meaning of this section, and thereupon all the provisions of this Act shall apply to the land.

180A. Fixing of uniform annual money rent in respect of utbandi lands.— (1) Notwithstanding anything contained in section 180, when araiyat who is or who but for the operation of section 180 in respect of land held under the custom of utbandi would have been, a settled raiyat of the village, holds or has held under the custom of utbandi, or under any form of tenancy locally known as utbandi land (hereinafter referred to asutbandi land), either the landlord or the raiyat may apply to have a uniform annual money rent determined for the land.(2) The application.shall include at the discretion of the applicant either —

(a) all utbandi lands held in the same village by the same raiyat under the same landlord in which the raiyat has required a right of occupancy whether under the provisions of section 180 or otherwise, or

(b) all the lands held in the same village under the same landlord by the raiyat which the raiyat, or any deceased person whose heir he is, has cultivated as utbandi land at any time during the preceding period of six years if he or the said deceased person is the last person to have cultivated the land and has not or had not acquired occupancy-rights therein, or

(c) both.

(3) Subject to the provisions of sub-section (2), a single application may be made by the landlord in respect of lands held as utbandi lands in the same village by one or more raiyats’ under him and a joint application may be made by two or more raiyats’ in respect of lands held by them asutbandi lands if the same village under the same landlord.(4) The application may be made to the Collector or to a Sub-divisional Officer or to a Revenue-officer appointed by the State Government under the designation of the Settlement Officer or Assistant Settlement Officer for the purpose of making a survey and record-of-rights under Chapter X or to any other officer specially authorised by the State Government.(5) The case may be determined by the officer who receives the application, or the Collector or the Settlement Officer may transfer it for disposal to some other officer competent under sub-section (4) to receive applications.(6) The officer receiving the application or the officer to whom the case is transferred, as the case may be, shall cause notice to be given in the prescribed manner to the opposite party, and shall fix a date for the determination of the case.If the immediate landlord or the raiyat is a temporary tenure-holder or ijaradar the officer receiving the application shall also give notice to the superior landlord in the lowest degree, who is a proprietor or permanent tenure-holder.(7) If the application is made in respect of lands in, which the raiyat has not acquired occupancy-rights, the officer may reject it in respect of such lands, if he is satisfied in view of all the circumstances of the case that it is unreasonable to grant it :Provided that a refusal shall be no bar to proceedings being again taken under this section after five years from the date of refusal if in the opinion of the officer who then receives the application the circumstances have in the meantime changed.(8) If the application is not rejected, the officer shall then determine the sum to be paid as a uniform annual money rent, and also in the case of lands in which the raiyat has not acquired occupancy-rights, a premium to be paid to the landlord, and he shall order that the raiyat shall, in lieu of paying the rent for the land as utbandi land, pay the sum so determined and the premium, if any :Provided that in any case in which an order fixing a uniform annual money rent is passed ex parte the opposite party may within one month of the date of such order or, when the notice has not been duly served, within one month of the date of his knowledge of such order apply to the officer by whom the order was passed for an order to set it aside and, if he satisfies the officer that the notice of the application under sub-section (1) was not duly served on him or that he was prevented by any sufficient cause from appearing when the case was determined, the officer shall set aside the order and shall appoint a day for the determination of the case. No order shall be set aside on application made under this proviso unless notice thereof has been served on the respondent thereto.(9) In making the determination of the sum to be paid as rent, the officer shall calculate the average of the amount that was actually paid or payable as rent for the land for the previous six years and shall ordinarily declare the same as the sum to be paid as rent :Provided that the officer may also take into consideration —

(a) the average money rent payable by occupancy-raiyats’ for land of a similar description and with similar advantages in the vicinity;

(b) the average rates for lands of a similar description and with similar advantages in the vicinity held as utbandi lands;

(c) the average money rent payable for lands of a similar description and with similar advantages in the vicinity by raiyats’ who formerly paid their rent for those lands as utbandi lands but whose rents have been converted into uniform annual money rents whether under this section or by agreement or otherwise;

(d) the charges incurred in accordance with custom by the landlord in respect of the irrigation and drainage of the utbandi lands and the arrangements made for continuing those charges;

(e) the rules laid down in this Act for the guidance of the Civil Courts in enhancing or reducing rents on account of the holdings of occupancy-raiyats’;

(f) any sum agreed to by the parties to be paid as money rent :

Provided that the officer shall in no case determine a rent which is unfair or inequitable.(10) The premium to be paid to the landlord in the case of lands in which the raiyat has not acquired occupancy-raiyats’ shall be three times the rent, or, if the application is made under clause (c) of sub-section (2), three times the portions of the rent determined under sub-section (8) on account of such lands.(11) If the immediate landlord of the raiyat is a temporary tenure-holder or ijaradar the officer shall apportion the premium payable under sub section (10) between the said temporary tenure-holder or ijaradar and his superior landlord of the lowest degree who is a proprietor or permanent tenure-holder in such manner as may appear fair and reasonable to the officer in view of all the circumstances of the case, and any sum so awarded to the said superior landlord shall be recoverable by him from the temporary tenure-holder or ijaradar or his successor-in-interest as an arrear of rent but shall not be recoverable by the superior landlord from the raiyat.(12) The order shall be in writing, shall state the grounds on which it is made, and shall, in the absence of any special reasons to the contrary recorded in writing, take effect from the beginning of the agricultural year next after the date on which it is made.(13) The officer shall fix the date (not being more than one month from the date of the order) by which the premium shall be paid or he may, on the application of the raiyat, order that the premium shall be paid by instalments not exceeding three in number, that the first instalment shall be paid at the beginning of the agricultural year in which the rent settled under sub-section (8) takes effect and that one of the remaining instalments shall be paid at the beginning of each of the succeeding agricultural years until the premium is paid in full.(14) The premium or any instalment thereof shall be recoverable as rent, and interest shall not be payable on any instalment in respect of which default has not been made.(15) Any order made under this section shall be subject to appeal in the manner provided in section 115C, unless the Part II of Chapter X, in which case the provisions of sections 104G and 104H shall apply.(16) An application made under sub-section (1) may be amended if it appears at any time to the officer prior to the issue of the order under sub section (7) or sub-section (8) or to the appellate or re-visional Court that it does not comply with the provisions of sub-section (2) but that it can be brought into conformity with that sub-section. Such amendment may be made either on the initiative of the parties or either of them or of the officer or Court but it shall not be made unless prior notice thereof is given to the parties, and, if such amendment is made, it shall be made only on such terms or conditions as to such officer or Court shall appear to be just.(17) Notwithstanding anything contained elsewhere in this Act or in any other law, no suit shall be brought or application made in any Court in respect of any order passed under this section, save as is provided in this section.

180B. Lands in respect of which a uniform annual money rent has been fixed under section 180A to cease to be utbandi lands. — Whenever an order under section 180A is passed determining a uniform annual money rent for any lands, such lands shall cease to be held asutbandi lands with effect from the date from which the new rent takes effect, and the tenant shall hold them as an occupancy-raiyat from the date of the order.

180C. Period for which rent fixed under section 180A to remain unaltered. — (1) Where a uniform annual money rent has been fixed under section 180A, the said rent shall not, except on the ground of a landlord’s improvement or of a subsequent alteration of the area of the holding, be enhanced for fifteen years; nor shall it be reduced for fifteen years, save on the ground of alteration in the area of the holding, or on the ground specified in clause (a) of sub-section (1) of section 38.(2) The said period of fifteen years shall be counted from the date on which the order takes effect under sub-section (12) of section 180A.

181. Saving as to service tenures. — Nothing in this Act shall affect any incident of a ghatwali or other service-tenure, or, in particular, shall confer a right to transfer or bequeath a service-tenure which, before the passing of this Act, was not capable of being transferred or bequeathed.

182. Homesteads.— When a raiyat or an under-raiyat holds his homestead otherwise than as part of his holding within the same village or any village contiguous to that village, his status in respect of his homestead shall be that of a raiyat or an under-raiyat according to the status of the landlord of the homestead, and the incidents of his tenancy of such homestead shall be governed by the provisions of this Act applicable toraiyats’ or under-raiyats’, as the case may be.183. Saving of custom. — Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by, its provisions.

CHAPTER XVI

Limitation

  1. Limitation in suits, appeals and applications in Schedule III.— (1) The suits, appeals and applications specified in Schedule III annexed to this Act shall be instituted and made within the time prescribed in that Schedule for them, respectively; and every such suit or appeal instituted, and application made, after the period of limitation so provided, shall be dismissed, although limitation has not been pleaded.(2) Nothing in this section shall revive the right to institute any suit or . appeal or make any application which would have been barred by limitation if it had been instituted or made immediately before the commencement of this Act.

185. Portions of the Indian Limitation Act not applicable to such suits, etc., mentioned in Schedule III.— Sections 6, 7, 8 and 9 and subsection (2) of section 29 of the Indian Limitation Act, 1908, shall not and, subject to the provisions of this Chapter, the remaining provisions of that Act, shall apply to all suits, appeals and applications specified in Schedule III annexed to this Act.

CHAPTER XVII

Supplemental

Penalties

  1. Penalties for illegal interference with produce.— (1) If any person, otherwise than in accordance with this Act or some other enactment for the time being in force,—

(a) distrains or attempts to distrain the produce of a tenant’s holding, or

(b) Omitted

(c) except with the authority or consent of the tenant, prevents or attempts to prevent the reaping, gathering, storing, removing, or otherwise dealing with any produce of a holding, he shall be deemed to have committed criminal trespass within the meaning of the Indian Penal Code.

(2) Any person who abets within the meaning of the Indian Penal Code the doing of any act mentioned in sub-section (1), shall be deemed to have abetted the commission of criminal trespass within the meaning of that Code.

Damages for denial of landlord’s title

186A. Damages for denial of landlord’s title. — (1) When, in any suit between a landlord and tenant as such, the tenant renounces his character as tenant of the landlord by setting up without reasonable or probable cause title in a third person or himself, the Court may pass a decree in favour of the , landlord for such amount of damages, not exceeding ten times the amount of the annual rent payable by the tenant, as ‘it may consider to be just.(2) The amount of damages decreed under sub-section (1), together with any interest accruing due thereon, shall, subject to the landlord’s charge for rent, be a first charge on the tenure or holding of the tenant; and the landlord may execute such decree for damages and interest, either as a decree for a sum of money, or in any of the modes in which a decree for rent may be executed.

Agents and representatives of landlords

  1. Power for landlord to act through agent.— (1) Any appearance application or act, in, before or to any Court or authority, required or authorised by this Act to be made or done by a landlord, may, unless the Court or authority otherwise directs, be made or done also by an agent empowered in this behalf by a written authority under the hand of the landlord.(2) Every notice required by this Act to be served on, or given to, a landlord shall, if served on, or given to, an agent empowered as aforesaid to, accept service of or receive the same on behalf of the landlord, be as effectual for the purposes of this Act as if it had been served on, or given to, the landlord in person.(3) Every document required by this Act to be signed or certified by a landlord, except an instrument appointing or authorising an agent, may be signed or certified by an agent of the landlord authorised in writing in that behalf.

188. Action to be taken collectively by co-sharer landlord or by their common agents except in certain cases.— (1) Subject to the provisions of section 148A, where two or more persons are co-sharer landlords, anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together or by an agent authorised to act on behalf of both or all of them :Provided that one or more co-sharer landlords, if all the other co-sharer landlords are made parties defendant to the suit or proceeding in manner provided in sub-sections (1) and (2) of section 148A and are given the opportunity of joining in the suit or proceeding as co-plaintiffs or co-applicants, may —

(i) Omitted

(ii) bring a suit for enhancement of the rent of a tenure under section 7 or of a holding under section 30, or for alteration of rent on account of alteration in area under section 52,

(iii) bring a suit for ejectment of a tenant on the grounds specified in section 10, clause (b) of section 18, section 25, or clause (a), clause (b), or clause (c) of section 44, or in accordance with the provisions of section 48C or section 66,

(iv) make application as regards improvements under sections 78, 80 and 81,

(v) apply for measurement under sections 90 and 91,

(vi) file an application under section 105,

(vii) bring a suit under section 106,

(viii) apply for record of private lands under section 118,

(ix) apply for the determination of the incidents of a tenancy under section 158,

(x) apply to the Collector for a declaration under sub-section (3) of section 180.

(2) Any decree passed or order made in a suit or proceeding in which the conditions set forth in sub-section (1) of this section have been complied with, shall have the effect of a decree passed or order made, on the application of the sole landlord or the whole body of landlords, arid shall take effect as regards the whole tenure or holding, as the case may be :Provided that where a suit is brought under section 7 or section 30 for enhancement of rent, or under section 52 for alteration of rent, or where an application is made under section 105 by a co-sharer landlord for settlement of rent, the Court or Revenue-officer, as the case may be, when the rent has been fixed or settled shall distribute any amount by which the rent has been increased or reduced between the co-sharer landlords of the tenancy in proportion to their respective shares in such tenancy whether they have or whether they have not jointed as plaintiffs or applicants, and such distribution shall be binding on all the co-sharer landlords as if they had all sued or applied for the same, and for the purposes of any appeal, application or suit in regard to such distribution they shall be deemed to have sued or applied under sub-section (1) of this section together with co-sharer plaintiff or applicant.

188A. Procedure in suits by joint landlords. — Repealed by s. 120 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

Rules under Act

  1. Power to make rules regarding procedure, powers of officers and service of notices.— The State Government may, from time to time, by notification in theOfficial Gazette, make rules consistent with this Act—(1) to regulate the procedure to be followed by Revenue-officers in the discharge of any duty imposed upon them by or under this Act, and may by such rules confer upon any such officer—

(a) any power exercised by a Civil Court in the trial of suits;

(b) power to enter upon any land, and to survey, demarcate and make a map of the same, and any power exercisable by an officer under the Bengal Survey Act, 1875; and

(c) power to cut and thresh the crops on any land and weigh the produce, with a view to estimating the capabilities of soil; and

(2) to prescribe the forms to be used, and the mode of service of notices issued, under this Act, where no form or mode is provided in this or any other Act;(3) Omitted(4) to prescribe the authority by whom the fees deposited under sections 12, 13, 15, 17 and 18, may be declared to be forfeited; and the mode in which such fees, when so forfeited, shall be dealt with; and(5) to provide for all or any of the following matters, namely :

(a) the manner of publication of —

(i) notifications under sub-section (3) of section 1;

(ii) price lists under sub-section (3) of section 39;

(iii) notices under sub-section (2) of section 87;

(iv) the draft record-of-rights under sub-section (1) of section 103A;

(v) the record-of-rights under sub-section (2) of section 103A;

(vi) tables of rates under sub-section (2) of section 104B;

(vii) the draft settlement rent-roll under sub-section (1) of section 104E;

(viii) proclamation under clause (d) of sub-section (3) of section 163; and

(ix) the rules made by authorities other than the State Government or the High Court under sub-section (2) of section 190;

(b) Omitted

(c) the amount of fees

(i) for processes referred to in sub-section (2) of section 12, in sub sections (1), (2), (3), (4) and (5) of section 26C, in sub-section (6) of section 26G, in sub-section (2) of section 85A and in sub-section (2) of section 88;

(ii) for service of notice referred to in sub-section (1) of section 13; and

(iii) referred to in sub-section (2) of section 61 and in sub-section (6) of section 88;

(cc) the manner of filing the notices referred to in sub-section (2) of section 12, in sub-section (1) of section 13, and in sub sections (1), (2), (3) and (4) of section 26C;

(d) the amount of the cost of transmission of fees or other monies;

(e) the manner of payment or tender of rent by postal money-order;

(f) the manner of verification of application under sub-section (2) of section 80;

(g) the information to be contained in the applications referred to in sub-section (2) of section 80;

(h) the form of the register referred to in clause (a) of sub-section (2) of section 99A and the particulars to be therein entered;

(i) the manner of making a survey and preparing a record-of rights under sub-section (4) of section 101;

(j) the particulars referred to in the proviso to clause (j) of section 102;

(k) the period of publication of the draft record-of-rights under sub-section (1) of section 103A and of the draft settlement rent-roll under sub-section (1) of section 104E;

(l) the manner in which objections shall be considered and disposed of under sub-section (2) of section 103A;

(m) the empowering of the “confirming authority” referred to in sub-section (4) of section 104B;

(n) the superior Revenue authority referred to in section 104G;

(o) the stamp to be borne by applications under sub-section (1) or sub-section (2) of section 105;

(p) Omitted

(q) any other matter required or permitted under this Act to be prescribed.

  1. Procedure for making publication and confirmation of rules.— (1) Every authority having power to make rules under any section of this Act shall before making the rules, publish a draft of the proposed rules for the information of persons likely to be affected thereby.(2) The publication shall be made, in the case of rules made by the State Government or High Court in such manner as may in its opinion be sufficient for giving information to person interested, and, in the case of rules made by any other authority, in the prescribed manner :Provided that every such draft shall be published in theOfficial Gazette.(3) There shall be published with the draft a notice specifying a date of publication, at or after which the draft will be taken into consideration.(4) The authority shall receive and consider any objection or suggestion which may be made by any person with respect to the draft before the date so specified.(5) The publication in theOfficial Gazette of a rule purporting to be made under this Act shall be conclusive evidence that it has been duly made.(6) All rules made under this Act may, from time to time, subject to the sanction (if any) required, for making them, be amended, added to or cancelled by the authority having power to make the same.

Provisions as to temporarily-settled districts

  1. Settlement of rent of land held in a district not permanently settled.— Where the area comprised in a tenure or holding is situate in an estate not subject to a subsisting permanent settlement and when,

(a) land-revenue is for the first time made payable in respect of the land, or

(b) land-revenue having been previously payable in respect of it, a fresh settlement of land-revenue is made, nothing in this Act or in any lease or contract made after the passing of the Bengal Tenancy Act, 1885, shall entitle any tenant to hold his tenancy free of rent or at a particular rent, unless in the case of a fresh settlement made under clause (b) the right so to hold beyond the term of the previous settlement has been expressly recognised at the previous settlement by a Revenue authority empowered by the State Government to make definitively or confirm settlements, and the Revenue-officer may, notwithstanding anything in the contract between the parties by order, on the application of the landlord or of the tenant or of his own motion fix a fair and equitable rent for all grades of tenants in accordance with the principles laid down in sections 6, 7, 8, 9, 27 to 36, 38, 39, 43, 50 to 52 and 180 :

Provided that, notwithstanding anything contained in sub-section (3) of section 7 he may divide the minimum profit of ten per centum provided for in that sub-section among two or more grades of tenure-holders if such exist.

192. Power to alter rent in case of new assessment of revenue. — Amalgamated with section 191 by section 122 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

Rights of pasturage, etc.

  1. Rights of pasturage, forest-rights, etc.— The provisions of this Act applicable to suits for the Rights of recovery of arrears of rent shall, as far as may be, apply to suits for the recovery of anything payable or deliverable in respect of any rights of pasturage, forest-rights, rights over fisheries and the like.

Saving for conditions binding on landlords

  1. Tenant not enabled by Act to violate conditions binding on landlord.— Where a proprietor or permanent tenure-holder holds his estate or tenure subject to the observance of any specified rule or condition, nothing in this Act shall entitle any person occupying land within the estate or tenure to do any act which involves a violation of that rule or condition :Provided that this section shall not apply to araiyat or an under-raiyat doing any act in exercise of the rights conferred by this Act upon raiyats’ or under-raiyats’, as the case may be.

Saving for special enactments

  1. Savings for special enactments.— Nothing in this Act shall affect —

(a) the powers and duties of Settlement-officers as defined by any law not expressly repealed by this Act;

(b) any enactment regulating the procedure for the realisation of rents in estates belonging to the Government, or under the management of the Court of Wards or of the Revenue authorities;

(c) any enactment relating to the avoidance of tenancies and incumbrances by a sale for arrears of the Government revenue;

(d) any enactment relating to the partition of revenue paying estates;

(e) any enactment relating to patni-tenures in so far as it relates to those tenures, except that —

(i) the provisions of section 67 and clause (i) of sub-section (1) of section 178 shall apply to all patni-tenures, and

(ii) the expression “Khtulkast raiyat or resident and hereditary cultivator” in sub-section (3) of section 1 I of the Bengal Patni TaluksRegulation, 1819, shall be deemed to include all raiyats’ having a right of occupancy; or

(f) any other special or local law not repealed either expressly or by necessary implication by this Act.

Protection for certain acts

195A. Protection in certain cases for acts done. — No suit or other proceeding shall be instituted against the Government or against any officer of the Government in respect of anything done by the registering officer, the Collector or the Court in regard to the receiving, distribution or payment of the landlord’s fee or the landlord’s transfer fee :Provided that nothing in this section shall prevent any person entitled to receive the amount of any such landlord’s fee or landlord’s transfer fee or any portion thereof from recovering the same from a person to whom it has been paid by the Collector or the Court.196. Act to be read subject to Acts hereafter passed by Lieutenant-Governor of Bengal in Council. — Repealed by section 125 of the Bengal Tenancy (Amendment) Act, 1928 (Bengal Act No. 4 of 1928).

Schedule I

Repeal of Enactments

(See section 2)

Regulations of the Bengal Code

Number and years Subject of Regulation Extent of repel
[VIII of 1793] A Regulation for reenacting with modifications, and amendment the rules for the Decennial Settlement of the Public Revenue payable from the lands of the Zamidars, independent talukdarsand other actual proprietors of land in Bengal, Bihar and Orissa, passed for those Provinces respectively on the 18th September, 1789, the 25thNovember, 1789, and the 10th February, 1790 and subsequent dates. Sections 51, 52, 53, 54, 55, 64 and 65
[XII of 1805] A Regulation for the Settlement and collection of the Public Revenue in the zilla of Cuttak, including the parganas of Pataspur, Kamardachor and Bhograi, at present included in the zilla of Midnapore. Section 7.
[V of 1812] A Regulation for amending some of the rules at present in force for the collection of the land revenue. Section 2, 3, 4, 26 and 27.
[XVII] A Regulation for explaining section 2 , Regulation V, 1812 and rescinding sections 3 and 4 , Regulation XLIV 1793 and enacting other rule in lieu thereof. The preamble and section 2 and 3.
[XI of 1825] A Regulation for declaring the rules to be observed in determining claims to lands gained by alluvion by dereliction of a river or the sea. In Clause (1) of section 4, from including the words “Nor if annexed to a subordinate tenure” to the end of the clause.
Acts of the Bengal Council
[VI of 1862] An Act to amend Act No. 10 of 1859 (to amend the law relating to the recovery of rent in the Presidency of Fort William in Bengal). The whole Act.
[IV of 1867] An Act to explain and amend Act No. 6 of 1862, passed by the Lieutenant-Governor of Bengal in Council, and to give validity to certain judgments. The whole Act.
[VIII of 1869] An Act to amend the Procedure in suits between landlords and tenants. The whole Act
[VIII of 1879] An Act to define and limit the power of Settlement- officers. The whole Act
Act of the Governor General-in-Council
[X of 1859] An Act to amend the law relating to the recovery of tent in the Presidency of Fort William in Bengal The whole Act.

Schedule II

Particulars of receipt Particulars of receipt

(See section 56 and 57)

Particulars of receipt (Landlord’s portion) Particulars of receipt(Tenant’s portion)
1. Serial number of receipt. Serial number of receipt.
2. Name of village, pragana, thana. Name of village, pragana, thana.
3. (a) Name of the estate and tauzi number to which the land appertains, and

(b) (If the landlords are not the proprietors) name, if any, of the tenure or holding, of the landlord.

 (a) Name of the estate and tauzi number to which the land appertains, and

(b) (If the landlords are not the proprietors) name, if any, of the tenure or holding, of the landlord.
4. Name or names of the landlord or landlords and the nature of their interest. Name or names of the landlord or landlords and the nature of their interest.
5. Tenant’s name. Tenant’s name.
6. Particulars of the tenure or holding for which rent is paid,—

(a) Serial number of the landlord’s rent-roll, and if a record-of-rights has been prepared, serial number of the tenancy in it.

(b) Area.

(c) Annual rent (cash or fixed quantity of produce or both as the case may be).

(d) Annual road and public works cesses.

(e) Jalkar, bankar and phalkar.

 Particulars of the tenure or holding for which rent is paid,—

(a) Serial number of the landlord’s rent-roll, and if a record-of-rights has been prepared, serial number of the tenancy in it.

(b) Area.

(c) Annual rent (cash or fixed quantity of produce or both as the case may be).

(d) Annual road and public works cesses.

(e) Jalkar, bankar and phalkar.
7. Amount paid, specifying for which of the items (c), (d) and (e) and for which year and kist. Amount paid, specifying for which of the items (c), (d) and (e) and for which year and kist.
8. Date of payment. Date of payment.
9. Signature of landlord or his authorised agent. Signature of landlord or his authorised agent.
Particulars of statement of account (Landlord’sportion) Particular of statement of account (Tenant’s portion)
1. Serial number of receipt Serial number of receipt
2. Name of village, pargana, thana. Name of village, pargana, thana.
3. (a) Name of the estate and tauzi number to which the land appertains, and

(b) (If the landlords are not the proprietors) name, if any, of the tenure or holding, of the landlord.

 (a) Name of the estate and tauzi number to which the land appertains, and

(b) (If the landlords are not the proprietors) name, if any, of the tenure or holding, of the landlord.
4. Name or names of the landlord or landlords and the nature of their interest. Name or names of the landlord or landlords and the nature of their interest.
5. Tenant’s name. Tenant’s name.
6. Particulars of the tenure or holding for which rent is paid,—

(a) Serial number of the landlord’s rent-roll, and if a record-of-rights has been prepared, serial number of the tenancy in it.

(b) Area.

(c) Annual rent (cash or fixed quantity of produce or both as the case may be).

(d) Annual road and public works cesses.

(e) Jalkar, bankar and phalkar.

 Particulars of the tenure or holding for which rent is paid,—

(a) Serial number of the landlord’s rent-roll, and if a record-of-rights has been prepared, serial number of the tenancy in it.

(b) Area.

(c) Annual rent (cash or fixed quantity of produce or both as the case may be).

(d) Annual road and public works cesses.

(e) Jalkar, bankar and phalkar.
7. Amounts due at the beginning of the year :-

(a) under each of the items (c), (d) and (e) and for which years; and

(b) as interest on above.

 Amounts due at the beginning of the year :-

(a) under each of the items (c), (d) and (e) and for which years; and

(b) as interest on above.
8. Amounts paid during the year against each of the above dues, with dates of payment and serial number of the rent. Amounts paid during the year against each of the above dues, with dates of payment and serial number of the rent.
9. Amounts remaining due at the end of the year. Amounts remaining due at the end of the year.
10. Date of the statement of account. Date of the statement of account.
11. Signature of landlord or his authorised agent. Signature of landlord or his authorised agent.

Schedule III

Limitation

(See section 184)

PART I — Suits

Description of suit Period of limitation Time from which period begins to run
1 To eject any tenure-holder, raiyat or under-raiyat on account of any breach of a condition in respect of which there is a contract expressly providing that ejectment shall be the penalty of such breach. One year The date of the breach.
1(a). To eject a non-occupancy-raiyat or under-raiyat on the ground of the expiration of the term of his lease. Six months The expiration of the term.
2 For the recovery of an arrear of rent in a suit brought by —
(i) a sole landlord,
(ii) the entire body of landlords, or,
(iii) one or more co-sharer landlords—
(a) when the arrear fell due before a deposit was made under section 61 on account of the rent of the same tenure or holding, Six month The date of the service of notice of the deposit or presentation of the postal money-order, as the case may be.
(b) in other cases Six month The last day of the agricultural year in which the arrear fell due.
3 To recover possession of land claimed by the plaintiff as a raiyat or an under-raiyat. Two years The date of dispossession.

Part II — Appeals

Description of suit Period of limitation Time from which period begins to run
4 From any decree or order under this Act, to the Court of a District Judge or Special Judge. Thirty days The date of the decree of order appealed against.
5 From any order of a Collector under this Act, to the Commissioner. Thirty days The date of the order appealed against.

Part III – Applicants

Description of suit Period of limitation Time from which period begins to run
6 For the execution of a decree or order made in a suit between landlord and tenant to whom the provisions of this Act are applicable, and not being a decree for a sum of money exceeding Rs. 500. exclusive of any interest which may have accrued after decree upon the sum decreed, but inclusive of the costs of executing such decree; except where the judgment-debtor has by fraud or force prevented the execution of the decree, in which case the period of limitation shall be governed by the provisions of the Indian Limitation Act, 1908 :

Provided that, where a sale in execution of arrears of rent is set aside on application, the proceedings in execution shall continue and the time between the date of such sale and the. date of the order setting it aside shall be excluded from the period of limitation provided by this Article.

 Three days

(1) The date of the decree or order; or

(2) where there has been an appeal, the date of final decree or order of the Appellate Court: or

(3) where there has been a review of judgement, the date of the decision passed on the review.

 

CIVIL, LAND

Bengal Survey Act, 1875.

Bengal Act 5 of 1875

[6th October, 1875]

An Act to provide for the survey and demarcation of land.Whereas it is expedient, with a view to the definition and identification of lands, the better security of landed property and the prevention of encroachments and disputes, to provide for the survey of lands and for the establishment and maintenance of marks to distinguish boundaries ;

It is hereby enacted as follows :-

Part I

Preliminary

1. Short title. – This Act may be called the Bengal Survey Act, 1875.[Commencement]. – Repealed by section 4 and the Third Schedule of the Amending Act, 1903 (1 of 1903).It extends to [the States of West Bengal and Bihar and that part of the State of Orissa which on the sixth day of October, 1875, was subject to the Lieutenant-Governor of Bengal].

2. Interpretation clause. – In this Act, unless there be something repugnant in the subject or context, -“Collector” means every Collector of a district, and includes every officer either generally or specially vested with the powers of a Collector for the purposes of this Act;”Deputy Collector” includes any Deputy Collector to whom the Collector or Superintendent or Survey may delegate any of his functions under, this Act;”estate” means -any land which is entered on the revenue-roll as separately assessed with the public revenue ;any land acquired from the [Government] under one title, which is liable to pay land-revenue at any future time; any char or island thrown up in a navigable river or in the sea which under the laws in force is at the disposal of the [Government];any land which is entered on the Collector’s registers as a separate holding, free in perpetuity from liability to pay land-revenue; any land gained by alluvion or by dereliction of a river or of the sea to any estate as here defined, which under the laws in force, is considered an increment to the tenure to which such land has accreted, shall be deemed a part of such estate;”mauza” includes every village, hamlet, tola and similar sub-division of an estate, pargana or village by whatever name such sub-division may be known;”occupant” includes every zamindar, tenure-holder, farmer and other person entitled to receive rents in respect of land or holding land on a claim that he is so entitled, and every raiyat in occupation of land ;”section” means a section of this Act;”survey” includes identification of boundaries, and all other operations antecedent to and connected with survey;”tenure” includes all permanent interests in land, with the exception of estates as above defined, and with the exception of those of raiyats having a right of occupancy only; it also includes all ghatwali holdings;”tenure-holder” means all or any of the holders of a tenure;”zamindar” means all or any of the holders of an estate.

Part II

Of The Survey

3. State Government may order survey. – The [State Government] may, whenever [it] shall think fit, order that a survey shall be made of the land situated in any district or in any part of a district or in any specified tract of country, and that the boundaries of estates, tenures, mauzas or fields be demarcated on the lands so to be surved:Provided that, in any district of which any survey may have been completed and approved by the [State Government], it shall not be lawful for the[State Government] to order a new survey of lands on the banks of rivers or on the sea-shore to be made for the purposes described in [the Bengal Alluvion and Diluvion Act, 1847,] until ten years shall have expired from the completion and approval of any such previous survey.

4. State Government may appoint Superintendent of Survey. – For the purpose of carrying out any survey directed to be made under the last preceding section, or for any or all of the purposes of this Act,the [State Government] may appoint a Superintendent of Survey, who may exercise all or any of the powers of a Collector under this Act;and may appoint one or more Assistant Superintendents and Deputy Collectors, who shall exercise all the powers of a Collector in respect to such matters under this Act as may be delegated to such Assistant Superintendents or Deputy Collectors respectively by the Collector or Superintendent of Survey, and not otherwise:Provided that, notwithstanding the appointment of a Superintendent of Survey for any tract of country, it shall be competent to the Board of Revenue to direct that the Collector shall perform any duties under the Act within the said tract.

5. Collector to publish proclamation before entering on lands. – Before entering on any lands for the purpose of a survey the Collector shall cause to be published a proclamation addressed to the occupants of the lands which are about to be surveyed and of the conterminous lands, and to all persons employed on or connected with the management of, or otherwise interested in, such lands, calling upon them to attend, either personally or by agent, before the Collector or any officer authorized by the Collector in that behalf, at such places and at such times as shall be stated in such proclamation, during the demarcation and survey of the land, for the purpose of pointing out the boundaries and of rendering such aid as may be necessary in setting up or repairing such boundary-marks as may be required, and of affording such assistance and information as may be needed for the purposes of this Act.Such proclamation shall be published by posting a copy thereof -at the Court of the Judge and at the office of the Collector of every district within which any portion of the lands about to be surveyed may be known to be situated;at every subdivisional office, police-station, Munsifs Court and sub-registrar’s office within the jurisdiction of which any portion of the land about to be surveyed may be known to be situated;at one or more mal-cutcheries on each estate;and at such other place or places as to the Collector may seem fit.

6. Collector may enter upon land. – After issue of a proclamation as aforesaid, the Collector and any person acting under his authority may enter upon such lands, and do all things and make all inquires necessary for effecting the survey and demarcation of the boundaries thereof.

7. Collector may serve special notice. – The Collector may also, by a special notice, require any such person to attend before him, or before any person authorized by the Collector in that behalf, within a specified time, which shall not be less than fifteen days after the service of the notice, at any places, for any of the purposes aforesaid; and every person on whom such special notice may be served shall be legally bound to attend as required by the notice, and to do any of the things mentioned in section 5, and to give any information which may be required, so far as he may be able to give it.

8. Collector to pay price of materials or labour supplied. – When any materials or labour shall have been supplied for any of the purposes mentioned in section 5, the Collector or other officer making a requisition under that section shall forthwith cause the price of such materials or labour to be paid to the person by whom the same were supplied.

9. Collector may require occupants to clear boundary lines. – The Collector or other survey-officer authorized by the Collector in that behalf may, by a special notice, require any occupant to clear any boundary or other line which it may be necessary to clear for the purposes of the survey, by cutting down and removing any trees, jungle, fences or standing crops.

10. Compensation. – If any demand for compensation be made in respect of the clearance of any line in accordance with a requisition under the last preceding section, the Collector shall ascertain and record the nature and estimated value of any trees, jungle, fences or standing crops which may have been cut down or removed, and shall offer adequate compensation to the owners thereof, together with, payment for all expenses incurred in carrying out the said requisition.

11. Amin or survey-officer to call upon persons to sign maps or papers. – When the demarcation of a village or other convenient tract has been completed, the amin or other survey-officer shall, before sending in to the Collector the maps and papers relating thereto,by a general notice, in which the names of all persons required to appear shall be specified and which shall be posted up at a convenient place in the village or tract,call upon all persons who have pointed out any boundaries in such village or tract on behalf of those interested to attend before him within three days of the publication of the said notice for the purpose of inspecting the maps field books and similar papers in which any boundary pointed out by any such person has been represented, and, by signing such maps and papers, to certify that the boundaries have been laid down in accordance with the boundaries pointed out by them;and every person so called upon shall be legally bound to attend before such amin or survey-officer, and to inspect the papers, in accordance with such requisition.

Any person so-called upon who may object to sign the maps and papers as aforesaid shall be required to state his objections in writing, and such statement shall be attached to the record of the demarcation of the village or tract, and shall be submitted to the Collector together with the maps and papers.The signature affixed to any maps or papers under this section shall be in attestation of the fact that the boundaries thereon represented or any of them have been represented in accordance with those pointed out by the person signing; and the affixing of such signature shall not be held to prejudice the right of any person interested to make any objection to such boundaries on any other ground before the Collector under the next succeeding section.

12. On receipt of maps, Collector to post notification in office. – On receipt in the Collector’s office of the maps or papers showing any boundaries which have been demarcated, the Collector shall cause a notification to be posted in his office, and in such other places as he may think proper, informing all persons concerned that the maps and papers relating to the boundaries in the village or tract specified are open to inspection ; and requiring any person who may have any objections to prefer, to prefer such objections within six weeks of the date of the posting of such notification, after which time the Collector will proceed finally to confirm the boundaries as laid down for the purpose of the survey.Whenever the Collector shall have reason to believe (either from the failure of any person interested or his representatives to sign the maps and papers on the spot when required by the survey-officer to do so under the last preceding section, or for any other reason) that any zamindar or person interested is likely to object to any boundary as laid down or as represented in the said papers,the Collector shall [issue] a special notice, requiring such zamindar or other person to attend personally or by duly authorized agent before him, or before any person authorized by the Collector in that behalf, within a specified time, which shall not be less than one month after the service of the notice, for the purpose of signing and thereby admitting the correctness of any maps or other papers which have been prepared under this Act in respect of any boundary in which such zamindar or other person is interested, or of stating in writing the substance of any objection which he may wish to prefer against the correctness of such maps or papers;and, if any person so summoned shall fail to attend and to sign the said maps or papers, or to give in a written statement of his objections within the time prescribed, the Collector may proceed finally to confirm the boundaries as represented in such maps and papers, for the purposes of the survey and of this Act:

Provided that, if within the time specified any such duly authorized agent deposits with the Collector the necessary expenses of making copies of the said maps or papers, the Collector shall order such copies to be prepared, and as soon as they are prepared shall cause a notice to that effect to be posted at his office, and the said agent shall be allowed such time as may be specified in such notice, not being less than fifteen days from the posting thereof, of the purpose of signing or of giving in a written statement of objections.When a written statement of objections has been given in, as in this section provided, the Collector, after holding any further inquiry which he may deem necessary, shall pass such order in respect of such objections as to him shall seem fit; and, if the objections shall seem to him not to be well-founded, shall direct that all expenses of such further inquiry, and all expenses entailed on any other person by such inquiry, shall be recovered from the person who made the objection.

13. Person making subsequent objection may be required to deposit costs of further inquiry. – Whenever any person, having failed to sign the maps and papers, or to give in his objection in writing within the time prescribed by the notification or by the special notice mentioned in the last preceding section, shall, at any time before the Collector has finally confirmed the boundaries for the purposes of the survey, prefer any subsequent objection against the correctness of any maps or papers in respect of which such notification or notice was issued;the Collector shall require him to deposit the estimated costs of any further inquiry which it may be necessary to make in respect of his objection; and, if the said person shall fail to deposit such costs within the time specified by the Collector, he shall be deemed for all purposes of this Act to have admitted the correctness of the said maps and papers.If the costs of any inquiry which may be deemed necessary be deposited, the Collector shall make such further inquiry at the expense of the person so objecting; and, if the objection shall seem to the Collector not to be well-founded, he may pass such order as he shall think fit in respect of the recovery from the objector of any sum expended by the Collector on the inquiry in excess of the sum deposited, and of any necessary expenses incurred by any other persons on account of such inquiry:Provided that no person so making an objection after the prescribed time shall, under any circumstances, be entitled to recover the expenses which he is required to deposit before any further inquiry is made in respect of such subsequent objection.

Part III

Of Boundary-marks

14. Collector may erect temporary Boundary marks. – The Collector may cause to be erected temporary boundary-marks of such materials, and in such number and manner, as he may direct, on any lands to be surveyed under this Act;and may require any occupant of land to maintain and keep in repair such marks or any boundary-marks,until any survey-operation shall be concluded and a final award given as to any disputed boundary, oruntil permanent boundary-mark may be erected in lieu thereof as herein-after provided.

15. Collector may erect permanent boundary marks. – The Collector may at any time cause to be erected on any land which is to be, or which has been, surveyed under this Act, permanent boundary-marks of such materials, and in such number and manner, as he may determine to be sufficient to distinguish the boundaries of the estates, tenures, mauzas or fields for which the same are to be erected:Provided that, seven days before he proceeds to the erection of any permanent boundary-marks, the Collector shall, for the information of all concerned, cause to be posted in his office, and in the mal-cutcherry or at some other convenient place on every estate concerned, a specification of the number and character of the marks which he proposes to erect on the estate and an estimate of their cost.

16. Apportionment of expenses. – All expenses incurred by the Collector in erecting temporary or permanent boundary-marks under this Act, shall, in manner hereinafter provided, be apportioned among, and levied from, the zamindars and tenure-holders on their estates :Provided that no tenure-holder shall be liable to pay any portion of the expenses incurred by the erection of boundary-marks on an estate, unless some portion of his tenure is situated within fifteen hundred feet of some such boundary-mark.

17. Rent-free lands deemed part of tenure. – All lands held without payment of rent, not being entered on the Collector’s register of revenue-free tenures of the district, shall, for the purposes of this Act, be deemed to form a part of the tenure within the local boundaries of which they may be included; and if they be not included within the local boundary of any tenure, then to be a part of the estate within the local boundaries of which they are included, and if they be not included within the local boundaries of any one estate, then to be a part of such conterminous estate as the Collector in whose district such conterminous estate is situated shall, by an order under his seal, appoint:Provided that no rent-free holding of which the annual value is less than five rupees shall be liable to pay any portion of the expenses of erecting boundary-marks under this Act.

18. Procedure when occupant fails to maintain boundary mark. – If any occupant on whom a requisition has been made under section 14 fails to maintain or keep in repair any temporary boundary-mark, the Collector may maintain, keep in repair or restore any such boundary-mark, and the expenses thereby incurred shall be recovered as provided in section 57 from the person so failing to maintain or keep in repair any such boundary-mark.

19. Zamindar, etc., bound to preserve boundary-marks and give notice to Collector when injured. – Every zamindar, tenure-holder and farmer of land shall be legally bound to preserve, as far as lies in his power, such of the permanent boundary-marks lawfully erected on his estate, tenure or farm, or on the boundary between his estate, tenure or farm, and any other estate, tenure or farm, as may be assigned to him in that respect entirely, or jointly with other persons, under the provisions of section 29, and shall give immediate notice to the Collector if any such marks are injured, destroyed or removed, or require repairs.

20. Collector may re-erect-injured boundary-marks and recover expenses from zamindar, etc. – Whenever it shall come to the notice of the Collector that any permanent boundary-mark erected under the provisions of this Act has been injured, destroyed or removed, or requires repairs, the Collector may cause such boundary-mark to be re-erected, restored or repaired, and may recover any expenses, incurred in respect, of such re-erection, restoration or repair, in such proportions as he shall think fit, from the zamindars and tenure-holders to whom such boundary-mark may have been assigned in that respect under the provision of section 29; and all such expenses shall be recoverable as provided in section 57.

21. Collector may cause boundary-mark to be erected by occupant of land with his consent. – Nothing contained in this Act shall be held to prohibit the Collector from causing any temporary or permanent marks to be erected, maintained or repaired by any occupant of land under the directions of the said Collector, and with the consent of such occupant.The Collector shall repay to such occupant the expenses incurred in such erection or repair, and such expenses shall be apportioned and recovered as provided in Part IV.

Part IV

Of the Apportionment And Recovery of Expenses

22. Collector to prepare statement of expenses in respect of boundary-marks. – Upon the completion of the erection of boundary-marks on any tract of land of which the survey may, have been ordered, or on any convenient portion thereof, the Collector shall forthwith prepare a statement of all expenses incurred in respect of such boundary-marks.

23. Contents of statement. – Such statement shall show the total number of marks of each description which have been erected on such tract or portion of such tract, the aggregate cost of erecting all the marks of each description, the names of the estates and mauzas within, or on the boundaries on which any marks have been erected, and the total number of marks of each description erected within or on the boundary of each estate.

24. Collector to apportion cost of erecting marks among estates. – Upon the completion of such statement the Collector shall provisionally apportion the aggregate expenses of erecting the marks among the estates specified, with reference to the number of boundary-marks of each description which have been erected within or on the boundary of each estate.

25. Notice to be served. – So soon as the provisional apportionment shall have been made as required by the last preceding section, the Collector shall cause a notice to be served on the zamindar of every estate on which the expenses have been apportioned –

(a) specifying the sum which has been apportioned on his estate, and, as far as can be calculated, the sum which he will be required to pay on account of the service of notices on him under this section and section 29;

(b) informing him that the said statement is open to inspection in the office of the Collector ;

(c) calling on him to appear in person, or by agent properly authorized, at the office of the Collector on a date to be specified in the notice (not being less than two months after the issue of the notice), on which date the Collector will proceed to consider any objections which may be made to the provisional apportionment of expenses ;

(d) warning him that if he does not appear on the date fixed in pursuance of the notice, he will be deemed to have waived all objections to the share of the expenses apportioned to his estate;

and (unless as otherwise hereinafter provided in sections 31, 32 and 33);

(e) informing him that under this Act, he is entitled to re-cover a portion of the amount which shall be finally made payable in respect of his estate under section 26, from such tenure-holders on his estate as are made liable to bear a portion of such expenses by sections 16 and 17 (of which sections a copy shall be annexed to the notice) ; and that in order to enable the Collector to apportion the said amount among the said tenure-holders, he may give in a list of all such tenures, as defined in this Act, held directly from him, with a specification of the number of boundary-marks of each description which are erected within or on the boundary of each tenure;

(f) and warning him that if he fails to give in a list of tenures as aforesaid on or before the said date, he will be deemed to have given up all claim to recover from the tenure-holders any part of the amount for which he may be held liable under section 26.

26. Collector to make final apportionment. – On the date fixed in such notice the Collector shall proceed to consider all objections which may be made to the provisional apportionment, and to make such final apportionment of the expenses as shall seem to him fit.In making such final apportionment the costs of serving all notices under section 25 shall be distributed rateably among the estates concerned in proportion to the share of the expenses of erecting boundary-marks which may be apportioned to each estate ; and the amount so finally apportioned as payable in respect of each estate, together with the costs of serving notices, rateably distributed as aforesaid, shall be due to the Collector from the zamindars of such estates.

27. Collector may postpone final apportionment. – Notwithstanding anything contained in the last preceding section, the Collector may postpone the final apportionment if it shall appear to him that a notice under section 25 has not been served on the zamindar of any estate which should be made liable for a portion of the expenses, or for any other sufficient reason.

28. Zamindar failing to appear deemed to have waived objections. – Any zamindar failing to appear on the date fixed in the notice served on him under section 25 will be deemed to have waived all objections to the payment of the amount apportioned to his estate, and will not be entitled to prefer any objections thereto on any subsequent date ; and any zamindar failing to give in a list of tenures (when called upon under section 25 to give in such list), on or before such date, will be deemed to have given up all claim to recover from the tenure-holders any part of the amount which may have been apportioned as payable in respect of his estate under section 26.

29. Collector to issue notice specifying amount finally apportioned. – So soon as the expenses shall have been finally apportioned under section 26 among the estates concerned as hereinbefore provided, the Collector shall issue a notice in respect of every estate, specifying the amount finally apportioned as payable in respect of the estate, and requiring the zamindars to pay such amount to the Collector, together with the costs of serving such notice, within one month of the issue of the notice.If such amount be not paid to the Collector within such period, the same, with interest, at such rate, not exceeding six per centum per annum, as the Words substituted by Adaptation of Laws Order, 1950.[State Government] may from time to time determine, may be levied as provided in section 57.The notice issued under this section shall assign to the zamindar, or to the zamindar jointly with tenure-holders, the boundary-marks which they are legally bound to preserve under the provisions of section 19, and in respect of which they will be held liable to pay the costs of re-erection, maintenance and repair, under the provisions of section 20.

30. Collector to apportion between zamindar and tenure-holders. – If the zamindar of any estate shall give in a list of tenures, as referred to in section 25, with an application to the Collector to apportion between his estates and the tenures the amount which has been apportioned as payable in respect of his estates as aforesaid, the Collector shall proceed to make a provisional apportionment of the said amount between thezamindar and the tenure-holders, to serve notices on the said tenure-holders in the manner provided in section 25, and to make a final apportionment among the said zamindar and tenure-holders in the manner provided in sections 26 and 27; and the provisions of section 28 shall be applicable to such tenure-holders:Provided that no separate notice shall be served under this section in respect of the provisional or final apportionment of the sum payable in respect of any tenure, if such sum be less than two rupees; but in respect of all such sums it shall be sufficient to publish a list showing the sums apportioned as payable.Such list shall be published by being posted at the office of the Sub-Divisional Officer and at a conspicuous place in some village within which lands appertaining to the tenure are situate.

31. Summary apportionment between zamindar and tenure-holders. – Notwithstanding anything in this Part contained, whenever the Collector may consider that he has sufficient information (whether derived from papers compiled for the purposes of the road-cess, from inquiries made in the course of proceedings under this Act, or otherwise) to enable him in a summary way to make an apportionment of any expenses recoverable under this Act in respect of any estate, between the zamindars of, and the holders of, tenures, in such estate, the Collector may, as soon as possible after he shall have made a provisional apportionment under section 24 of the sum payable in respect of such estate, and without calling on the zamindar to give in any list of tenures as provided in clause (e) of section 25, proceed to make a provisional apportionment between the zamindars and the tenure-holders of such estates of the sum which has been provisionally apportioned under section 24 as payable in respect of the estate.

32. Notice to zamindar when provisional apportionment made summarily. – Whenever any provisional apportionment of the sum payable between the zamindars and the tenure-holders may have been made summarily, as provided in the last preceding section,the notice to be served on the zamindar, under section 25 shall in-form the zamindar, in addition to the particulars specified in clauses (a), (b), (c) and (d) of the said section, and instead of those specified in clauses (e) and (f),that under this Act he is entitled to recover a portion of the amount which shall be finally apportioned as payable in respect of his estate under section 26 from the tenure-holders on his estate; and that the Collector has made a provisional apportionment of the said sum between thezamindar and tenure-holders according to a list which shall be annexed to the said notice;and shall warn him -that if he fails to prefer any objection to such provisional apportionment on or before the date specified, he will be deemed to have given up all right to prefer any such objection at any future time; and that the Collector will proceed to make, such apportionment final, or to make any modifications in it which he may think fit:Provided that the sum finally made payable by the zamindar shall not exceed the sum apportioned upon him in the said provisional apportionment between the zamindars and the tenure-holders.

33. Procedure on provisional apportionment. – As soon as a provisional apportionment between the zamindar and the tenure-holders shall have been made summarily as provided in section 31, the Collector shall proceed to serve notices on the tenure-holders concerned in the manner provided in section 30, and to do all other things as if the said provisional apportionment upon tenure-holders had been made on a list given in by the zamindar under section 30.

34. Mode of apportionment among tenures. – In apportioning the amount among the zamindars and the tenure-holders the Collector shall first deduct such sum as he shall consider to be fairly payable by the zamindar in respect of lands not included in any tenure, and in respect of his interest in lands which are included in tenures; and in apportioning the remainder among the tenures he shall take into consideration the number of pillars erected within or on the boundary of each tenure, the extent of each tenure, and the distance at which it is situated from the boundary-marks; but no tenure shall be made liable for any portion of the sum so apportioned, unless some part of it be situated within fifteen hundred feet from some boundary-mark.

35. Notice of apportionment in respect of tenures. – So soon as the final apportionment among tenure-holders under section 30 shall be completed, the Collector shall cause to be issued notices to each of the said tenure-holders stating the amount payable in respect of each of their tenures, with interest (if any) calculated at the annual rate of six per centum from the date on which the zamindar paid to the Collector the sum which was apportioned on his estate under section 26, and the cost of serving upon the tenure-holder the notice under this section and calling upon him to pay the total amount so due to the zamindar of the estate of which the tenure is a part, within one month of the date of the notice :Provided that no separate notice shall be served under this section on any tenure-holder who is required to pay a sum of less than two rupees as his share of the expenses apportioned under this Act; but in respect of such sums it shall be sufficient to publish a list in the manner prescribed by section 30, and no costs incurred in respect of the publication of any such list shall be recoverable from any person mentioned therein as liable to pay less than two rupees.

36. Collector not to issue notices to tenure-holders until zamindars have deposited costs. – Notwithstanding anything contained in section 35, the Collector shall not issue the notices therein mentioned to the tenure-holders until the zamindars concerned shall have deposited with the Collector the full amount of the costs of serving all the notices, and of publishing the lists as required by that section.

37. Apportionment between tenure-holder and holder of subordinate tenure. – The provisions of sections 25, 26, 27, 28, 29, 30, 34 and 35 shall be applicable, as far as possible, to every case in which any tenure holder who has been made liable for the payment of any share of expenses under this Act may apply to the Collector to apportion the amount for which he has been made liable between himself and the holders of subordinate tenures direct from himself;and the provisions of sections 31, 32 and 33, regarding the procedure for making a provisional apportionment in a summary way between azamindar and the tenure-holder on his estate, shall, be applicable, as far as possible, to the provisional apportionment of expenses between the holder of a tenure and the holders of under-tenures within his tenure :Provided always that no such apportionment shall be made in respect of raiyats who have a right of occupancy only, and whose rent is not fixed in perpetuity.

38. Recovery of sums payable to zamindar or tenure-holder. – Every zamindar or tenure-holder to whom any sum is payable under the preceding sections may recover the same with interest as aforesaid in the manner provided by any law for the time being in force for the recovery of arrears of rent in respect of the tenure for which the sum is due.39. Recovery of sums expended by Government. – The provisions of this Part shall apply to all sums expended by the Government since the first day of November, 1874 in erecting boundary-marks.

Part V

Boundary disputes

40. Procedure in case of disputes as to boundary. – If it shall come to the notice of the Collector in the course of a survey under this Act, that a dispute exists as to any boundary which should be surveyed, the Collector, after holding such inquiry as he may deem necessary, may determine such boundary as hereinafter provided.41. Mode of determining boundary. – The Collector shall determine the boundary according to actual possession, and cause it to be secured by boundary-marks;and the order of the Collector under this section shall, until it be reversed or modified by competent authority, have the force of an order of any Civil Court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector.

42. Power of Collector to take possession of land in dispute. – If, after holding the necessary inquiry, the Collector is unable to discover which party was in possession of the disputed land when he instituted the inquiry under this section, the Collector may take possession of the land in dispute, and retain possession thereof until some party shall have established his right to the said land.

43. Power to refer to arbitration. – Whenever the Collector thinks it necessary to decide a dispute as to any boundary under the last preceding section, he may, with the consent of the parties concerned, refer the same to arbitration.The procedure laid down in [section 89 of, and Schedule II to, the Code of Civil Procedure, 1908,] shall, so far as may be practicable, be applicable to disputes so referred to arbitration.

44. Relaying boundary previously determined by Court or by revenue survey. – If the boundary regarding which the dispute exists as mentioned in section 40 shall at any previous time have been determined by any Court of competent jurisdiction, or shall have been laid down and shown on a map in the course of any previous revenue-survey or settlement, and no objection to the boundary as then laid down and mapped shall have been preferred before any authority competent to decide on such objection; whenever the dispute relates to the boundary of an estate which is liable for revenue, or to any other boundary by which the interests of the [Government] may be affected, the Collector shall,and whenever the disputes relates to any other boundary, the Collector may, if he thinks fit,relay, as nearly as may be possible, the boundary as previously determined or laid down and shown on the map, and cause such boundary to be shown on the survey-map, with an explanatory note to the same :Provided that the relaying and record of a boundary by the Collector under this section shall not affect the possession of any land by any party, and shall be in addition to the determination and record of the boundary according to actual possession required by section 41.Nothing contained in this section shall be held to prohibit the Collector from deviating from a boundary as held by actual possession or as shown on a former map, and laying down a new boundary, if all the parties concerned agree to such new boundary, on the ground that the boundary held by actual possession, or as shown on the former map, was incorrect, and if it appears to the Collector that there is no objection to the adoption of such new boundary.The reason for every such deviation shall be recorded in the Collector’s proceedings.

45. Power of Collector in case of doubt or dispute as to boundary determined by Court or laid down by survey. – If it shall come to the notice of the Collector at any time, or in any manner, that a doubt or dispute exists in respect to any boundary –

(a) which has at any time been determined by a competent Court; or

(b) which has been laid down and shown on a map, in the course of a previous revenue-survey or settlement, or other proceeding of a revenue-officer for any special purpose, and against which no objection has been preferred to any authority competent to decide upon such objection; or

(c) which has been laid down by survey under this Act, –

the Collector may, if he thinks it desirable for any reason that the boundary so determined or laid down shall be relaid, proceed to relay the boundary in the manner prescribed in section 44 of this Act, and for the purpose of so relaying the boundary he may make any inquiries and surveys which may be necessary, and such inquires and surveys shall be deemed to be proceedings under section 6, and the Collector shall exercise in respect thereof all powers which he may exercise in respect of inquiries and surveys under that section.

46. In certain cases Collector may cause marks to be erected. – Whenever the Collector shall have determined a boundary which was in dispute, and the order shall have become final,and whenever a boundary which has been supplied by the survey officers, or has been determined under this Act, has been altered by a decree of any Civil Court which has become final,and whenever it shall come to the notice of the Collector that any boundary has been determined by a competent Court or authority, the Collector may cause such marks as he may think fit to be erected in order to secure the boundary permanently, and the provisions of Parts III and IV shall, so far as is possible, be applicable to boundary-marks which are erected under this section and to the apportionment of the cost thereof.

Part VI

Miscellaneous

47. Joint zamindars subject to every liability imposed on single zamindars. – Whenever any estate or tenure is held jointly by two or morezamindars or tenure-holders, all such zamindars and tenure-holders shall be jointly and severally liable in respect of every liability imposed onzamindars or tenure-holders respectively by this Act,and any shareholder in any estate or tenure who may have paid the amount finally apportioned to such estate or tenure may recover from his co-sharers such sums as may be payable in respect of their shares as arrears of rent, or may take credit for such sums in any adjustment of accounts between himself and his co-sharers.

48. Service of notice. – Every notice in and by this Act required to be served on any person may be served -(1) by delivering the same to the person to whom it is directed, or, on failure of such service, by posting the same on some conspicuous part of the house in which the said person resides, or by delivering the said notice to a general agent of the person to whom such notice is directed; or(2) by sending a registered letter containing such notice directed to the said person at his usual place of abode, or to the place where he may be known to reside; or(3) by posting a copy of the notice at any mal-cutchery of the estate or tenure of the person to whom the notice is directed; or if no such mal-cutchery be found, on some conspicuous place on the said estate or tenure to which such notice relates, and by delivering, in the case of estates paying their annual revenue by four instalments, another copy thereof to any agent who shall have paid an instalment of revenue next after the preparation of such notice.In all cases where two or more persons are holders of an estate or tenure, service of notice under this clause shall be deemed to be good and sufficient service on each and all of such persons.

49. No proceedings under Act affected by mistake or misdescription. – No proceedings under this Act shall be affected by reason of any mistake in the name of any person thereby rendered liable to pay any sum of money, or in the description of any estate or tenure or land in respect of which he is rendered liable to pay, or by reason of any other informality, provided the directions of this Act be in substance and effect complied with ; and no proceedings under this Act shall be affected by reason of the omission to serve any notice on any zamindars whose name is not recorded on the Collector’s registers as owner of the estate in respect of which the notice is required to be served.

50. Power of Collector to enforce attendance of witness. – For the purpose of any inquiry under this Act the Collector shall, in addition to every power conferred specially by this Act, have power to summon and enforce the attendance of witnesses and compel the production of documents by the same means (as far as may be), and in the same manner, as is provided in the case of a Court under the Code of Civil Procedure [, 1908].

51. Daily fine for failure to comply with requisition in notice. – If any person shall fail to comply with a requisition contained in any special notice served under section 7 of this Act, or in any notice served for the purpose of any inquiry under Part V of this Act, within the time specified in such notice, the Collector may impose upon him such daily fine as he may think fit, not exceeding fifty rupees, and such fine shall be payable daily until the requisition is complied with ; and the Collector may proceed, from time to time to levy any amount which has become due in respect of any such fine, notwithstanding that an appeal against the order imposing such fine may be pending:Provided that whenever the amount levied under any such order shall have exceeded five hundred rupees, the Collector shall report the case specially to the Commissioner of the Division, and no further levy in respect of such fine shall be made otherwise than by authority of the said Commissioner.

52. Penalty for not giving notice of injury to boundary-mark. – Any person, being bound by the provisions of section 19 to give notice to the Collector in respect of any boundary-mark having been injured, destroyed or removed, or requiring repairs, who shall fail to give such notice, shall be liable to a fine not exceeding one hundred rupees, to be imposed by order of the Collector.

53. Penalty for removing boundary marks. – Any person convicted before a Collector of wilfully erasing, removing or damaging any boundary-mark (not being a land-mark fixed by the authority of a public servant within the meaning of section 434 of the Indian Penal Code) which has been lawfully erected, may be ordered by the convicting officer to pay such sum, not exceeding two hundred rupees, for each mark so erased, removed or damaged, as the said officer may think fit, in addition to such sum as may be necessary to defray the expense of restoring the boundary-mark so erased, removed or damaged.

54. Collector may award portion of fine to informer. – The Collector may award any portion of a fine imposed under either of the two last preceding sections, and which may be realized, to any person who may have given information leading to the imposition of the fine.

55. Levy of fine. – A fine under sections 51, 52 and 53 may be levied, as far as may be practicable, in the manner provided in [sections 386, 387 and 389 of the Code of Criminal Procedure, 1898]; but if no moveable property belonging to the person from whom the fine is due is found in the district within which the order was passed, then such fine may be levied as if it were an arrear of revenue.

56. When person removing boundary-mark cannot be found, Collector may repair. – Whenever the person erasing, removing or damaging any boundary-mark cannot be discovered, or if for any other reason it is found impracticable to recover from him the sum which he has been so ordered to pay, the boundary-mark shall be restored or repaired by the Collector, and the expenses thereby incurred shall be recovered from the occupants, of such of the conterminous lands and in such proportions, as to the Collector may seem fit.

57. Every amount due deemed a demand. – Every amount which may become due to the Collector under the provisions of this Act in respect of any expenses incurred or of any notice served, or of any costs payable by any party in an appeal, shall be deemed to be a demand [* * *]

58. Appeal against orders. – Except as provided in sections 59 and 60, no appeal shall lie as of right, against any order passed under this Act by any officer; butthe proceedings and orders of Assistant Superintendents and of Deputy Collectors under this Act shall be subject to the supervision and control of the Superintendent of Survey or Collector ;the proceedings and orders of the Superintendent of Survey and of the Collector, to the supervision and control of the Commissioner of the Division; and the proceedings and orders of all officers ; to the supervision and control of the [State Government]:Provided that the [State Government] may order that in the course of any survey under this Act, the functions of the Commissioner shall be restricted to the decision of appeals under section 60, and that the general powers of control and supervision over the Superintendent of Survey or Collector and their subordinate officers may be exercised by the [State Government] direct.

59. Appeal against certain orders of Assistant Superintendent or Deputy Collector. – An appeal, if presented within one month of the date of the order appealed against, shall lie to the Collector or Superintendent of Survey against every order of a Deputy Collector or of an Assistant Superintendent –

(a) determining under section 8 the amount to be paid as the price of materials or labour supplied;

(b) determining under section 10 the amount to be paid as compensation;

(c) deciding a boundary-dispute;

(d) imposing a fine under this Act.

60. Appeal against certain orders of Collector or Superintendent of Survey. – An appeal if presented within one month of the date of the order appealed against, shall lie to the Commissioner of the Division against every order of the Collector or Superintendent of Survey –

(a) determining under section 8 the amount to be paid as value of materials or labour supplied;

(b) determining under section 10 the amount to be paid as compensation;

(c) determining a disputed boundary;

(d) imposing a fine of more than fifty rupees on any person :

Provided that the order appealed against under clauses (a), (b) and (c) shall not have been passed by the Collector or Superintendent of Survey on an appeal preferred against the order of a subordinate officer.

61. Orders as to costs on appeal. – The Commissioner, Collector or Superintendent of Survey may pass such orders as they shall think fit in respect of the payment of costs incurred by any party in an appeal.

62. No suit to be brought unless appeal first preferred. – No suit shall be brought to set aside an order of a Superintendent of Survey, Collector, Assistant Superintendent or Deputy Collector deciding a boundary-dispute, unless an appeal shall have been first preferred under section 59 or section 60, or unless the person suing was at the time when such order was passed a minor, or insane or an idiot.

63. Power of State Government to make rules. – The [State Government] may lay down rules not being inconsistent with this Act, -to provide for the preparation of maps and registers, and for the collection and record of any information in respect of any land to be surveyed under this Act;and generally to provide for the proper performance of all things to be done, and for the regulation of all proceedings to be taken, under this Act.All inquiries ordered to be made for the collection of information under such rules shall be deemed to be inquiries under section 6, and the Collector shall exercise in respect thereof all powers which he may exercise in respect of inquiries under that section.

CIVIL, LAND

The Bengal Rent Act, 1862

Bengal Act 6 of 1862

[14th May, 1862]An Act to amend [the Bengal Rent Act, 1859.].

Preamble. – Whereas it is expedient to amend Act X of 1859, so far as the same relates to the Provinces subject to the Government of Bengal.It is enacted as follows :-

1. Repeal of certain sections of Act X of 1859. – Repealed by Section 4 and the Third Schedule of the Amending Act, 1903 (1 of 1903).

[2. When Court may award to plaintiff additional damages not exceeding twenty-five per cent.] – In any suit [* * * *] for rent under Act X of 1859, if it shall appear to the Court that the defendant has without reasonable or probable cause neglected or refused to pay the amount due by him, and that he has not before the institution of the suit tendered such amount to the plaintiff or his duly authorized agent, or in case of refusal of the plaintiff or such agent to receive the amount tendered, has not deposited such amount with the Collector before the institution of the suit in manner hereinafter mentioned, it shall be lawful for the Court to award to the plaintiff, in addition to the amount decreed for rent and costs, such damages not exceeding twenty-five per cent, on the amount of rent decreed, as the Court may think fit.These damages, if awarded, as well as the amount of rent and costs decreed in the suit, shall carry interest at the rate of [six and a quarter] per cent, per annum from the date of decree until payment thereof, and shall be recoverable from the defendant in like manner as sums decreed to be paid by defendants under Act X of 1859 are recoverable.

3. Court may award to defendant compensation not exceeding twenty-five per cent, on amount improperly sued for.] – In any suit [* * *]for rent under Act X of 1859 if it shall appear to the Court that the plaintiff has instituted the suit against the defendant without reasonable or probable cause, or that the defendant before the institution of the suit duly deposited with the Collector in the manner hereinafter mentioned the full amount which the Court shall find to have been due to the plaintiff at the date of such deposit, it shall be lawful for the Court to award to the defendant by way of compensation such sum, not exceeding twenty-five per cent, on the whole amount claimed by the plaintiff, as the Court may think fit; and such Sum, with interest at the rate of [six and a quarter] per cent, per annum until payment thereof, shall be recoverable from the plaintiff in like manner as sums decreed to be paid by defendants under Act X of 1859 are recoverable.

4. Under-tenant or raiyat may, after tender pay into Court, without suit brought, what he admits to be due to zamindar, etc. – If any under tenant or raiyat shall, at malcutcherry for the receipt of rents or other place where the rents of the land held or cultivated by him are usually payable, tender payment of what he shall consider to be the full amount of rent due from him at the date of the tender to the zamindar or other person in receipt of the rent of such land, and if the amount so tendered shall not be accepted, and a receipt in full forthwith granted, it shall be lawful for the under-tenant or raiyat, without any suit having been instituted against him, to deposit such amount in the Collector’s Court, to the credit of the zamindar or other person aforesaid.

Payment into Court to have effect of payment to zamindar, or person entitled. – And such deposit shall, so far as the under-tenant or raiyatand all persons claiming through or under him are concerned, in all respects operate as and have the full effect of a payment then made by the under-tenant or raiyat of the amount deposited, to such zamindar or other person.

5. Proceedings on payment into Court. – The Collector shall receive such deposit on the application of the under-tenant or raiyat, or his agent, made in writing [* * * * *] and on the under-tenant or raiyat, or his agent, making a declaration in the form, or as nearly as circumstances will admit in the forms, set forth in the Schedule A hereto annexed; and the Collector shall give a receipt for the same.If the declaration shall contain any averment which the person making the declaration shall know or believe to be false, or shall not know or believe to be true, such person shall be subject to punishment according to the law for the time being in force for the punishment of giving or fabricating false evidence.Upon receiving the money so deposited; the Collector shall issue a notice to the person to whose credit it has been deposited in the form set forth in the Schedule B hereto annexed, and such notice shall be served by the Collector, without the payment of any fee, either upon the person to whom it is addressed or upon his naib, gumastha or other agent; and in the absence of any such agent it shall be served by sticking up a copy of the same in the office of the Collector, and another copy at the malcutcherry for the receipt of rents, or other place where the rents are usually paid for the land in respect of which the money has been deposited.

Payment to creditor. – If the person to whom such notice is issued, or his duly authorized agent, shall appear and apply that the money in deposit be paid to him, it shall be immediately made over to him.

6. Limitation of suit for further balances. – Whenever a deposit shall have been made under the provisions of this Act, no suit shall be brought against the person making the deposit or his representatives on account of any rent which accrued due prior to the date of the deposit, unless such suit is instituted within six months from the date of the service of the notice an the fifth section of this Act mentioned.

7. After suit brought, defendant may pay into Court, without costs, money tendered before. – The defendant in any suit under this Act or under Act X of 1859 instituted after the passing of this Act may, if he have duly tendered the same to the plaintiff before the institution of the suit, pay into Court such sum of money as he shall consider to be due to the plaintiff without paying in any costs incurred by the plaintiff up to the time of such payment, and such sum shall be immediately paid out of Court to the plaintiff.

Costs if plaintiff goes on with the suit. – If after such payment the plaintiff elects to proceed in the suit, and ultimately recovers no further sum than shall have been paid into Court, the plaintiff shall be charged with the whole costs of the suit incurred by the defendant; but if the plaintiff ultimately recovers a further sum than shall have been paid into Court, the defendant shall be charged with the whole costs of the suit.

8. If no previous tender has been made, defendant may pay into Court what he admits to be due with costs on that sum. – The defendant in any suit under this Act or under Act X of 1859 [* * * *] may, without having made any tender before action brought, pay into Court such sum of money as he shall consider to be due to the plaintiff, together with the costs (to be fixed by the Court, if necessary, as of a suit originally instituted for the amount so paid into Court) incurred by the plaintiff up to the time of such payment, and such sum shall immediately be paid out of Court to the plaintiff.Costs if plaintiff goes on with the suit. If after such payment the plaintiff elects to proceed in the suit, and ultimately recovers no further sum than shall have been paid into Court, he shall be charged with all costs incurred by the defendant subsequently to such payment; but, if the plaintiff ultimately recovers a further sum than shall have been paid into Court, the defendant shall (including the sum paid into Court by him in the first instance on account of costs) be charged with costs as upon a suit originally instituted for the whole amount for which the plaintiff ultimately obtains a decree.

9. Survey and measurement of lands. – Every proprietor of an estate or tenure, or other person in receipt of the rents of an estate or tenure, has a right of making a general survey and measurement of the lands comprised in such estate or tenure, or any part thereof, unless restrained from doing so by express engagement with the occupants of the lands.If any person intending to measure any land which he has a right to measure is opposed in making such measurement by the occupant of the land, or if any under-tenant or raiyat, having received notice of the intended measurement of land held or cultivated by him, which is liable to such measurement, refuses to attend and point out such land, such person may make application to the Collector, and the Collector shall thereupon proceed to inquire into the case in the manner provided for suits under Act X of 1859, and shall pass a decision either allowing or disallowing the measurement, and if the case so require, enjoining or excusing the attendance of any such under-tenant or raiyat.If any under-tenant or raiyat after the issue of an order enjoining his attendance, neglects to attend and to point out the land, it shall not be competent to him to contest the correctness of the measurement made or any of the proceedings held in his absence.

10. Measurement of lands where it cannot be ascertained who are the persons liable to pay rent. – If the proprietor of an estate or tenure, or other person entitled to receive the rents of an estate or tenure, is unable to measure the lands comprised in such estate or tenure or any part thereof, by reason that he cannot ascertain who are the persons liable to pay rent in respect of the lands or any part of the lands comprised therein, such proprietor or other person may petition the Collector in respect of the lands which he cannot measure as aforesaid : and the Collector thereupon, and on the necessary costs being deposited with him by the applicant, shall proceed to measure the land and to ascertain and record the names of the persons in occupation of the same, or on the special application of the proprietor or other person aforesaid, but not otherwise, shall proceed to ascertain, determine and record the tenures, and under-tenants, the rates of rent payable in respect of such lands, and the persons by whom respectively the rents are payable.The provisions of section 67 of Act X of 1859 shall apply to any proceeding of the Collector instituted under this section.If after due enquiry the Collector shall be unable to measure the land, or to ascertain or record the names of the persons in occupation of the same, or if he shall (in any case in which such special application shall have been made as aforesaid) be unable to ascertain who are the persons having tenures or under-tenures in such lands or any part thereof then and in any such case he may declare the same to have lapsed to the party on whose petition he has made the inquiry.If any person, within fifteen days after the Collector shall have recorded the name of such person as being in occupation of such land or any part thereof, or shall have declared a tenure to have lapsed, shall appear and show good and sufficient cause for his previous non-appearance, and shall satisfy the Collector that there has been a failure of justice, the Collector may, upon such terms or conditions as he may think proper, alter or rescind his declaration according to the justice of the case.Save as aforesaid, the decision of the Collector on all matters inquired in to and determined by him under this or the last preceding section shall be final, unless the same shall be reversed on appeal therefrom to the Civil Court.Such appeals shall lie to the Zila Judge or to the Sadar Court, subject to the provisions and conditions contained in sections 160 and 161 of Act X of 1959.

11. Measurements to be by pargana pole. – All measurements made under this Act shall be made by the standard pole of measurement of thepargana in which the land is situated.

12. Form of plaint in suits for arrears of rent. – In any suit [* * *] for the recovery of an arrear of rent, the statement shall specify the name of the village and estate and of the pargana or other local division in which the lands is situate, the yearly rent of the land, the amount (if any) received on account of the year of which the claim is made, the amount in arrear, and the time in respect of which it is alleged to be due.If the arrear is alleged to be due from any raiyat, the statement shall further specify the quantity of land, and, where fields have been numbered in a Government survey, the number (if it be possible to give it) of each field.

13. Order under section 58 of Act X of 1859 to set aside judgment to be final, but rejection of application to set it aside appealable. – In all cases in which the Collector shall, pass an order under section 58 of Act X of 1859 for setting aside a judgment, the order shall be final; but in all appealable cases in which the Collector shall reject the application an appeal shall lie from the order of rejection to the tribunal to which the final decision in the suit would be appealable:Provided that the appeal be preferred within the time allowed for an appeal from such final decision. [* * * * *].

14. Fees to agents and mukhtars. – [* * * *] – In awarding costs to either parts in any suit [* * * *] under [Act X of 1859] or under this Act, it shall be competent for the Collector to award to such party, on account of the fees of any agent or mukhtar employed by him, such a sum, not exceeding the rate of fee chargeable under the provisions of [section 27 of the Legal Practitioners Act, 1879,] for pleaders in the Civil Courts, as the Collector may direct.

15. Language of Collector’s judgment. – The Collector shall pronounce judgment in all cases tried under this Act or under Act X of 1859 in open Court.The judgment shall be written in the vernacular language of the Collector, and shall contain the reasons for the same, and shall be dated and signed by the Collector at the time when it is pronounced:Provided that, if the vernacular language of the Collector be not English, and the Collector be sufficiently conversant with the English language to be able to write a clear and intelligible decision in that language, and prefer to write his judgment in it, the judgment may be written in English.

16. Attachment before judgment. – The provisions relating to attachment before judgment contained in sections 81 to 90, both inclusive, of [Act VIII of 1859] (for simplifying the Procedure of the Courts of the Civil Judicature not established by Royal Charter) are hereby extended to all suits[* * *] under this Act or Act X of 1859.

17. Execution to issue at time of decree on oral application; afterwards on application in writing. – Process of execution in any suit [* * *]under this Act or under Act X of 185 may be issued against either the persons or the property of a judgment-debtor, but process shall not be issued simultaneously against both person and property.It may be issued on the oral application of the judgment-creditor, his agent or mukhtar, made at the time the judgment is pronounced or thereafter upon the written application of the judgment-creditor, his agent or mukhtar presented to the Court by which the judgment was given.Process of execution against the person or moveable property of a debtor shall be in the [Form E] or [Form F] contained in the schedule to Act X of 1859, or in a form as nearly resembling those forms as the circumstances of the case may admit.

18. If person is arrested under section 145 of Act X of 1859, case to be disposed of at once. – If any person shall [* * *] be arrested under section 145 of the said Act X of 1859, he shall be brought before the Collector with all convenient speed, and the Collector shall proceed forthwith to try the case.If the case cannot be at once heard and determined, the Collector may, if he think fit, require the person arrested to give security for his appearance whenever the same is required.In default of such security the person arrested shall be committed to the civil jail till the case is heard.

19. Deputy Collectors’ powers. – All the powers vested in the Collector by any of the sections of this Act or of Act X of 1859 may be exercised by any Deputy Collector in cases referred to him by a Collector, and in all oases without such reference by any Deputy Collector placed in charge of any subdivision of a district, or who is specially authorized by [the State Government] to receive such cases : and all applications and reports allowed or required by the said Act X of 1859 or by this Act to be made to the Collector may be made to any Deputy Collector having such local jurisdiction or such special authority as aforesaid.

20. In what Court suits are to be instituted. – Suits under this Act, or under Act X of 1859 shall be preferred in the revenue office of the district, or, when a subdivision of a district has been placed under the jurisdiction of a Deputy Collector, in the revenue office of the subdivision in which the cause of action shall have arisen or, when the cause of action shall have arisen within the limits of the local jurisdiction of any Deputy Collector not in charge of a subdivision, but who has been specially authorized by [the State Government] to receive such suits, then in the office of such last-mentioned Deputy Collector:Provided always that the Collector may withdraw any suit from any, Deputy Collector and try it himself, or refer it to another Deputy Collector.If the lands comprised in any taluk, farm or other tenure, or any lands held under one lease or engagement, at or one entire rent, in respect of which arrears of rents may be due, are situated in more than one district or subdivision, or within the local limits of the jurisdiction of more than one Deputy Collector so specially authorized as aforesaid, the district or sub-division or local limits in which the greater part of such lands is situate shall be held to be the district of subdivision or local limits in which the cause of action has arisen; and, if any question shall be raised respecting the district or subdivision or local limits within which the greater part of the lands is situate, the Board of Revenue, or, if all the lands be situate in one district, the Collector of the district, shall decide the question; and such decision shall be conslusive on the point of jurisdiction.

21. This Act to be read with Act X of 1859. – This Act shall be read with, and taken as part of Act X of 1859. [* * * * *]

Schedule A

I, A, B, of etc., do solemnly declare that I did personally (or by my agent C.D.) on the……….. day of……… tender payment of E.F. at his malcutcherry (or at………..), the place where the rent of the lands at……… held or cultivated by me under or from the said E.F. are usually payable, of the sum of [* * * *] rupees…….. as and for the whole amount due from me in respect of the rent of the said lands from the month of……… to the month of……… both inclusive. I further declare that the said E.F. refused to accept the said sum so tendered (or to give me a receipt in full forthwith for the same). And I do declare that…………. to the best of my belief the sum of [* * * *] rupees….. so tendered, and which I now desire to pay into Court, is the full amount which I owe the said E.F. on account of the rent of the said lands from the month of…….. to the month of……… both inclusive, and that I owe the said E.F. no further sum on account of the rent of the said lands.

Schedule B

Court of the Collector (or Deputy Collector) of Dated the……………… day of……………. 18To E..F., of, etc.With reference to the within declaration you are hereby informed that the sum of [* * * *] rupees……………. therein mentioned is now in this Court, and that the above sum will be paid to you or to your duly authorized agent on application. And take notice that, if you have any further claim or demand whatsoever to make against the said A.B. in respect of the rent of the said lands, you must institute a suit in Court for the establishment of such claim or demand within six calendar months from this date, otherwise your claim will be for ever barred.

CIVIL, LAND

Ismail Hushen Ghanchi Vs. National Highways Authority of India[SC 2017 November]

KEYWORD: Award of compensation-

sc

  1. The compensation in respect of the land acquired from the appellants shall be worked out only on the basis of the calculation based on the return from the fruit-bearing trees, as calculated by the Reference Court.
  2.  On the compensation thus calculated, the appellants shall be entitled to additional compensation and solatium.
  3.  The appellants shall also be entitled to interest under Section 28 of the Land Acquisition Act, 1984

ACT : Land Acquisition

DATE  :November 14, 2017

BENCH: [KURIAN JOSEPH]  [R. BANUMATHI]

SUPREME COURT OF INDIA

Ismail Hushen Ghanchi Vs. National Highways Authority of India

[Civil Appeal Nos.18744-18745 of 2017 @ Special Leave Petition (C) Nos. 32180-32181 of 2016]

KURIAN, J.

1. Delay condoned.

2. Issue notice to Respondent No.1 in Diary No.23978/2017. Notice need not be issued to Respondent No.2, being a proforma respondent.

3. Ms. Jaikriti S. Jadeja, learned counsel, appears and accepts notice for Respondent No.1 in Diary No.23978/2017.

4. Leave granted.

5. The appellants are before this Court aggrieved by the award of compensation in respect of the land acquired along with the fruit-bearing trees. In the High Court, purportedly on the basis of a submission made by the learned counsel, the land value, as enhanced by the Reference Court, was sustained but the compensation in respect of the trees was reduced to 20%. According to the learned counsel for the appellants, it should have been reduced only by 20% and that was what had been submitted. Be that as it may, as an attempt for review also was in vain, we do not want to send back the matters to the High Court.

6. When the matters came up before this Court on 7.11.2017, this Court passed the following order:- “In a petition of compensation for the acquisition of land, the Award can be passed either on the basis of the income one would earn from the fruit bearing trees or on the basis of the market value of the land plus the value of the crops of that particular year. In view of the extent of land of some of the petitioners herein being very small, learned counsel for the petitioners submits that he may be given some time to ascertain whether the petitioners would like to choose the calculation based on the income from the trees.

List on 14.11.2017 as first item”.

7. Learned counsel for the appellants, on instruction, submits that since the holding is very small and since the people have been dependent on the income from the fruit-bearing trees they would go by the calculation on the basis of income from the fruit-bearing trees.

8. The above submission is recorded.

9. Accordingly, these appeals are disposed of as follows:

(i) The compensation in respect of the land acquired from the appellants shall be worked out only on the basis of the calculation based on the return from the fruit-bearing trees, as calculated by the Reference Court.

(ii) On the compensation thus calculated, the appellants shall be entitled to additional compensation and solatium.

(iii) The appellants shall also be entitled to interest under Section 28 of the Land Acquisition Act, 1984 on the entire compensation thus worked out in terms of para (i) and (ii) above.

(iv) Learned counsel appearing for the Respondent/National Highway Authority of India points out that the appellants have already received compensation on the basis of the calculation based on land value.

(iv) We make it clear that in case any of the appellants have received any compensation on the basis of the calculation based on land value, the amount shall be adjusted from the date of receipt along with 15% interest thereon, while granting the compensation. We further make it clear that in case the compensation awarded is deposited in Court, there shall be no adjustment of interest.

(v) Needless to say that compensation necessarily includes solatium and interest on the amount.

10. Pending applications, if any, shall stand disposed of.

11. There shall be no orders as to cost.

WITH : [C.A. No.18746/2017 @ SLP (C) No. 18269/2017] [C.A. No.18749/2017 @ SLP (C) No. 18789/2017] [C.A. No.18750/2017 @ SLP (C) No. 18790/2017] [C.A. No.18747/2017 @ SLP (C) No. 18547/2017] [C.A. No.18748/2017 @ SLP (C) No. 18549/2017] [C.A. No.18751/2017 @ SLP (C) No. 21374/2017] [C.A. Nos.18752-18753/2017 @ SLP (C) Nos.32195-32196 @ Diary No(S). 23978/2017]

CIVIL, LAND

The Law of Prescriptive Rights

Acquisition by prescription under Indian Easement Act 1882[Sec 15 to 17]

RE

 Sec15- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I. -Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II. -Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III. -Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV. -In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the 1 Government, this section shall be read as if, for the words “twenty years” the words 2 “thirty years” were substituted.

Illustrations
(a)A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto, as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882 . The plaintiff is entitled to judgment.
(b)In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.
(c)In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

16. Exclusion in favour of reversioner of servient heritage. –

Provided that, when any land upon, over or from which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land.

Illustration
A sues for a declaration that he is entitled to a right of way over B ‘s land, A proves that he has enjoyed the right for twenty-five years; but B shows that during ten of these years C had a life-interest in the land; that on C’s death B became entitled to the land; and that within two years after C ‘s death he contested A ‘s claim to the right. The suit must be dismissed, as A, with reference to the provisions of this section, has only proved enjoyment for fifteen years.

17. Rights which cannot be acquired by prescription–

Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights.

None of the following rights can be so acquired:-
(a)a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;
(b)a right to the free passage of light or air to an open space of ground;
(c)a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;
(d)a right to underground water not passing in a defined channel.

 

LAND

Law of License

RE

52. “License” defined. –

Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.

53. Who may grant license. –

A license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license.

54. Grant may be expressed or implied.-

The grant of a license may be expressed or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license.

55. Accessory licenses annexed by law.–

All licenses necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right. Such licenses are called accessory licenses.

Illustration
A sells the trees growing on his land to B. B is entitled to go on the land and take away the trees.

56. License when transferable. –

Unless a different intention is expressed or necessarily implied, a license to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a license cannot be transferred by the licensee or exercised by his servants or agents.

Illustrations
(a)A grants B a right to walk over A ‘s field whenever he pleases. The right is not annexed to any immovable property of B . The right cannot be transferred.
(b)The Government grant B a license to erect and use temporary grainsheds on Government land. In the absence of express provision to the contrary, B ‘s servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.

57. Grantor’s duty to disclose defects.-

The grantor of a license is bound to disclose to the licensee any defect in the property affected by the license, likely to be dangerous to the person or property of the licensee, of which the grantor is, and the licensee is not, aware.

58. Grantor’s duty not to render property unsafe.-

The grantor of a license is bound not to do anything likely to render the property affected by the license dangerous to the person or property of the licensee.

59. Grantor’s transferee not bound by license.-

When the grantor of the license transfers the property affected thereby, the transferee is not as such bound by the license.

60. License when revocable.-

A license may be revoked by the grantor, unless-

(a)it is coupled with a transfer of property and such transfer is in force;
(b)the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.

61. Revocation express or implied.-

The revocation of a license may be express or implied.

Illustrations
(a)A, the owner of a field, grants a license to B, to use a path across it. A, with intent to revoke the license, locks a gate across the path. The license is revoked.
(b)A, the owner of a field, grants a license to B to stack hay on the field. A lets or sells the field to C. The license is revoked.

62. License when deemed revoked. –

A license is deemed to be revoked-
(a)when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license;
(b)when the licensee releases it, expressly or impliedly, to the grantor or his representative;
(c)where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled;
(d)where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;
(e)where the licensee becomes entitled to the absolute ownership of the property affected by the license;
(f)where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable;
(g)where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;
(h)where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;
(i)in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.

63. Licensee’s rights on revocation.–

Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property.

64. Licensee’s rights on eviction.–

Where a license has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.

LAND

Bijender & Ors. Vs. State of Haryana & ANR [SC 2017]

KEYWORDS-Market value

SC INDEx

  • What is fair and reasonable market value of any acquired land on the date of its acquisition. It is held that such a question is always a question of fact and its answer depends on the nature of evidence, circumstances and probabilities appearing in each case
  • The relevant factors emerging from the evidence and the findings of the Courts below on the issues such as – the location of the acquired land, its surroundings, nature, potentiality, rates of small plots, the purpose of acquisition, development cost needed, non-availability of the sale deeds for large areas sold in acres, etc., for determination of the  just, fair and proper market value of the acquired land

SUPREME COURT OF INDIA

[Civil Appeal No.2846 of 2017]

[Civil Appeal Nos.2847-2848, 2849, 2850, 2851, 2852, 2853- 2872, 2873-2877, 2878-2882, 2883-2887, 2888-2893, 2894, 2895, 2896,2897, 2898, 2899, 2900-2904, 2905, 2906, 2907-2910, 2911, 2912, 2913-2914, 2915, 2916,2917, 2918-2929, 2930, 2931-2932, 2933-2950, 2951,2952-2954,2955 of 2017]

[Civil Appeal Nos.17338-17354 of 2017 @ S.L.P. (c) Nos.29181-29197 of 2016]

DATE OF JUDGEMENT: October 27, 2017

ACTS:-Section 4 of the Land Acquisition Act, 1894

BENCH:-[R.K. AGRAWAL] [ABHAY MANOHAR SAPRE]

Abhay Manohar Sapre, J.

1. Leave granted in the special leave petitions.

2. These appeals are directed against the common final judgments and orders dated 22.12.2015, 22.03.2016 and 03.05.2016 passed by the High Court of Punjab and Haryana at Chandigarh in R.F.A. Nos.5300, 2807-2809, 2806, 4762, 4764, 4756, 3751, 3759, 3760, 3766, 3768, 3776, 3777, 3785, 3788, 3794, 3798, 3800, 3805, 4839, 4841, 4842, 4843, 4844, 7299, 8756, 4840, 4846, 4838, 3767, 4757, 4752, 4746, 4744, 7323, 1515, 4753, 5980, 4751, 4745, 4809, 2549, 2548, 5910, 4810, 4754, 5911, 5913, 5912, 6307, 6283, 5542, 5908, 4747, 4760, 4758, 4763, 4759, 6308, 6309, 4748, 4749, 4755, 6306, 5909, 3999/2014, 314 & 809/2015, 3600, 2779, 4750, 3762, 3767, 3791, 3792, 3795, 3797, 3801, 4837, 4838, 4840, 4845, 4846, 4771, 4766, 4767, 2778, 2808, 2940, 2 2941, 2942, 2943, 2945, 2946, 3085, 3120, 3121, 3997, 3998, 4000, 4001, 4003, 5226, 7214, 4264, 7253, 3988, 2547, 4263, 1516, 2771, 2772, 2773, 2774, 2775, 2777, 3687, 4307, 4416, 4417, 4418, 4419, 4421, 2776, 2778 & 4808/2014 whereby the High Court while disposing of the said appeals partly allowed the appeals and upheld the awards of the Land Acquisition Officer insofar as it relates to assessment of compensation @ Rs.33,00,000/- per acre for the land up to the depth of 2 acres in Safidon-Jind Road, Safidon bye-pass and Gair Mumkin kind of land whereas it enhanced the compensation from Rs.18,00,000/- per acre to Rs.24,75,000/- per acre from for the land beyond 2 acres.

3. Facts of the case are taken from C.A. No.2846 of 2017 (Bijender & Ors. vs. State of Haryana & Anr.) need mention, in detail, to appreciate the controversy involved in these appeals.

4. The land of the appellants measuring 18362 sq. yds. equivalent to 30 kanal 07 marla being 1122/37/15 share out of total acquired land measuring 100 kanal 11 marla from the total land measuring 185 kanal 15 marla of khewat No.1396 khata nos.1658 and 1659 revenue estate of Safidon, situated at a village Saifdon, District Jind, Haryana was acquired. The land was acquired for the development and utilization of commercial and residential for HUDA Sectors 7, 8 and 9 in Safidon City in Distt. Jind vide three Notifications. Along with the land of the appellants, the State also acquired land belonging to several landowners alike the appellants.

5. Notification bearing No.LAC(H)-2007-NTLA/376 on 23.08.2007 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the “the Act”) was issued for the acquisition of 142 acres of land in village Singhpura, for public purpose, namely, for the development of residential, commercial Sector 7, Safidon.

6. Notification bearing No.LAC(H)-2007-NTLA/379 on 23.08.2007 under Section 4 of the Act was issued for the acquisition of 249.49 acres land in villages Safidon, Singhpura, Rampura, Ratta Khera and Khera Khemawati for public purpose, namely, for the development of residential, commercial sector 8 at Safidon.

7. Notification bearing No.LAC(H)-2007-NTLA/382 on 23.08.2007 under Section 4 of the Act was issued for the acquisition of 167.79 acres of land in village Safidon, Khera Khemawati for the public purpose, namely, for the development of residential and commercial sector 9 at Safidon.

8. The said notifications were published in the newspapers. The objections to the said notifications were also invited. However, the objections filed by the landowners were rejected by Collector finding no merit therein under Section 5A of the Act.

9. This was followed by 3 declarations made and published under Section 6 of the Act on 21.08.2008 bearing No. LAC(H)-2008-NTLA/423 in respect of the land measuring 74.10 acres of land in village Singhpura, LAC(H)-2008-NTLA/426 in respect of the land measuring 199.57 acres of land in village Safidon, Singhpura, Rampura, Ratta Khera and Khera Khemawati and LAC(H)-2008-NTLA/429 in respect of the land measuring 150.97 acres in village Safidon and Khera Khemawati.

10. The Collector held an enquiry. He applied the Belting System for determining the market rate of land and, accordingly, classified the land in parts. On 19.08.2010, the Collector passed 3 Awards. By Award No.3 in respect of the land in village Singhpura, the Land Acquisition Officer awarded 6 compensation @ Rs.33 lacs per acre for the land up to the depth of 2 acres from Safidon-Jind Road and Safidon Bye-Pass Road and Gair Mumkin and for the land classified as “Nehri, Chahi”, he awarded Rs. 18 lacs per acre. The landowners were also awarded 30% solatium and additional amount @ 12% per annum from the date of notification under Section 4 of the Act till the Award as provided under Section 23 of the Act.

11. By Award No.4 in respect of the acquisition of land in village Safidon, Singhpura, Rampura, Ratta Khera and Khera Khemawati, the Land Acquisition Officer awarded compensation @ Rs.33 lacs per acre for the land up to the depth of 2 acres from Safidon-Jind Road and Safidon Bye-Pass Road and Gair Mumkin and @ Rs.18 lacs per acre for “Nehri, Chahi” Land. The landowners were also awarded 30% Solatium and additional amount @ 12% p.a. from the date of notification under Section 4 of the 7 Act till the award as provided under Section 23 of the Act.

12. By Award No.5 in respect of acquisition of land in village Safidon and Khera Khemawati, the Land Acquisition Officer awarded compensation @ Rs.33 lacs per acre for the land upto the depth of 2 acres from Safidon-Jind Road and Safidon Bye-pass Road and Gair Mumkin and Rs.18 lacs per acre for “Nehri, Chahi” land. The landowners were also awarded 30% Solatium and additional amount @ 12% p.a. from the date of notification under Section 4 of the Act till the Award as provided under Section 23 of the Act.

13. Being dissatisfied with the Awards, the landowners filed Reference Petitions under Section 18 of the Act before the Additional District Judge, Jind praying for enhancement of the compensation contending inter alia that the market value of the land at the time of acquisition was much higher 8 than what was offered by the Collector in his Awards. According to the appellants (landowners), the market value was to the tune of Rs.5000/- per sq. yds.

14. The Additional District Judge by its common Award dated 17.12.2013 dismissed all 305 reference petitions and, in consequence, upheld the Awards passed by the Collector. In other words, the Reference Court was of the view that the rate at which the compensation was determined by the Collector by applying the Belting System in working out the compensation was just and proper and as per Section 23 of the Act. The Reference Court, therefore, did not enhance the compensation awarded by the Collector. All the reference petitions were accordingly dismissed.

15. Aggrieved by the said Awards, the landowners filed separate Regular First Appeals before the High Court praying for enhancement of the 9 compensation.

16. By impugned judgments dated 22.12.2015, 22.03.2016 and 03.05.2016, the High Court partly allowed the appeals. The High Court held that the Awards of the Collector assessing compensation @Rs.33 lacs per acre for the land up to the depth of 2 acres on Safidon Jind Road, Safidon bye-Pass road does not call for any interference and hence they were upheld. However, so far as the other category of land (Nehri, Chahi) beyond 2 acres from the road was concerned, the High Court modified the Award and enhanced the compensation from Rs.18 lacs to Rs.24,75,000/- per acre. The High Court determined the market rate at Rs. 48,40,000/- per acre and then reducing by 33% worked out to Rs.32,42,800/- per acre, i.e., Rs.33,00,000/- per acre so far as Safidon-Jind land was concerned. So far as other land for which the Collector had awarded Rs.18 lacs per acre, the High 1 Court deducted 25% and thus worked out to Rs.24,75,000/- per acre.

17. Aggrieved by the said judgments, the landowners have filed these appeals by way of special leave before this Court.

18. Heard learned counsel for the parties.

19. Learned counsel appearing for the appellants (landowners) while assailing the legality and correctness of the impugned judgments mainly argued three points.

20. In the first place, learned counsel argued that the High Court having accepted in principle that the acquired land is a developed land and has potentiality in all respects coupled with the fact that it is surrounded by upcoming activities in any town erred in not properly determining the market value of the land as required under Section 23 of the Act read with law laid down by this Court in several cases.

21. In the second place, learned counsel argued that the appellants (landowners) had filed as many as 59 Sale deeds of the adjacent and nearby areas having a similar quality of land alike the acquired land before the Reference Court. Learned counsel urged that out of 59 sale deeds, two pieces of land were sold at the rate of Rs.4,500/- per square yard whereas remaining lands were also sold at different rates ranging between Rs.200/- to Rs.4,500/- per square yard.

22. It was, therefore, his submission that since the highest rate in the comparable sales is usually preferred for determining the market value of the acquired land, the High Court should have taken Rs.4,500/- per square yard to be the basis for determining the market value of the acquired land.

23. In the third place, learned counsel argued that the Collector, Reference Court and the High Court erred in applying the Belting System for determining 1 the market value of the acquired land which, according to learned counsel, wrongly resulted in classifying the acquired land in two parts and, in consequence, resulted in applying two rates for two parcels of the lands. One rate was for the land which is abutting the main road, whose rate was more as compared to the other land, and the land which is in interior from the main road, whose rate was less.

24. It was his submission that the Collector and the Reference Court failed to give any justifiable reasons as to why they choose to apply the Belting System for determining the market value of the acquired land. Similarly, according to learned counsel, the High Court also did not deal with this issue though raised by the appellants before the High Court in their appeals.

25. In reply, learned counsel for the respondent (State) supported the impugned judgments and 1 contended that the market value of the acquired land determined by the High Court which resulted in partially enhancing the rate in relation to one class of land which is in interior from Rs.18 lacs to Rs.24,75,000/- per acre, is just and proper and does not call for any further enhancement and nor the other class of land (Rs.33,00,000/- per acre) calls for any further enhancement and the same was rightly upheld by the High Court.

26. Learned counsel then pointed out several infirmities in the 59 comparable sale deeds relied on by the appellants and contended that these sale deeds should not be relied on for determining the market rate of the acquired land for the following reasons.

27. First, all the sale deeds pertained to very small pieces of land wherein the lands were sold in square yards, whereas the acquired land in question is very large and measures in acres (around 3001 acres or so). In other words, according to learned counsel, there is no comparison between the lands, which is the subject matter of the sale deeds relied on by the appellants (claimants), and the acquired land in question.

28. Second, some claimants, whose lands were acquired in these acquisition proceedings, had sold their part of the acquired lands in very small measures few months before the date of acquisition only with an intention to create evidence so that they may get the compensation for their acquired land at the same rate at which they sold their land.

29. In other words, according to the learned counsel, such sales could not be regarded as genuine sales between the seller and the buyer and were, in fact, the bogus sales brought into existence with a sole purpose to claim more compensation for their acquired lands.

30. Learned counsel, lastly, contended that there  is no case made out by the appellants (landowners) to question the Belting System applied by the Courts below for determining the market rates of the acquired land inasmuch as having regard to the nature of the land and other factors, the Belting System was properly applied. Learned counsel, therefore, contended that the impugned judgments deserve to be upheld calling no interference.

31. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and, in consequence, modify the impugned judgments by partially enhancing the compensation payable to the appellants for their acquired land to the extent indicated below.

32. Coming first to the question as to whether the Courts below were justified in applying the “Belting System” for determining the market rates of the acquired land in question?

33. We are of the considered opinion that keeping in view the nature, extent, size, surrounding and location of the acquired land, the Courts below were justified in applying Belting System for determining the market rate of the acquired land.

34. One cannot dispute that the Belting System is a judicially accepted method for determining the fair market value of the acquired land. It is applied in appropriate cases when different parcels of lands with different survey numbers belonging to different owners and having different locations are acquired which put together comprises of a large chunk of land. Such chunk cannot be taken as a compact block.

35. The acquired land having a frontage abutting the highway/main road always has a better value as compared to the land, which is away from the highway/main road. Indeed, farther the land from the highway/main road, lesser the value of such 1 land. In such a situation, where large pieces of land having different locations are acquired, Belting System is considered apposite for determining the market value of the lands. (see – Union of India & Ors. vs. Mangatu Ram & Ors. 1997 (6) SCC 59 and Andhra Pradesh Industrial Infrastructure Corporation Limited vs. G. Mohan Reddy & Ors. 2010 (15) SCC 412).

36. In Belting System, the acquired land is usually divided in two or three belts depending upon the facts of each case. The market value of the front belt abutting the main road is taken to fetch maximum value whereas the second belt fetches two third or so of the rate determined in relation to the first belt and the third belt, if considered proper to carve out, fetches half or so of the maximum. It is again depending upon facts of each case.

37. Similarly, this Court has consistently held on the question as to what is fair and reasonable market value of any acquired land on the date of its acquisition. It is held that such a question is always a question of fact and its answer depends on the nature of evidence, circumstances and probabilities appearing in each case.

38. It is held that one of the guiding factors in such cases is the conduct of a hypothetical willing vendor, who would offer the land and a willing purchaser in normal human conduct, would be willing to buy the land as a prudent man in normal market condition on the date of the notification under Section 4(1) of the Act but not an anxious buyer dealing at arm’s length nor facade or fictitious sales brought about in quick succession or otherwise to inflate the market value.

39. It is held that when the Courts are called upon to fix the market value of the land in compulsory acquisition, one of the types of evidence of the value of the property is the sale of the acquired land to 1 which the claimant is a party and in its absence, the sale of the neighboring lands.

40. It is held that the transactions relating to acquired land of recent dates or in the neighbourhood lands that possessed of similar potentiality or fertility or other advantageous features are considered to be relevant piece of evidence.

41. It is held that in proof of the sale transactions, the relationship of the parties to the transactions, the market conditions, the terms of the sale and the date of the sale are to be looked into. These features need to be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original or certified copies of the sale deeds are required to be tendered in evidence to prove such facts. One of the underlying principles to fix a fair market value with 2 reference to comparable sale is to reduce the element of speculation.

42. It is held that in comparable sale, the features are (1) it must be within a reasonable time of the date of the notification (2) it should be a bona fide transaction (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages.

43. These factors should be established by adducing material evidence by examining the parties to the sale or persons having personal knowledge of the sale transactions. The proof thereof focuses on the fact whether the transactions relied on are genuine and bona fide transactions or not.

44. It is further held that it is the paramount duty of the Courts of facts to subject the evidence to close scrutiny with a view to objectively assess the evidence tendered by the parties on proper 2 considerations thereof in its correct perspective to arrive at a reasonable market value. The attending facts and circumstances in each case always furnish guidance to arrive at the market value of the acquired land. The neighbourhood lands possessed of similar potentialities or same advantageous features/circumstances available in each case are also to be taken into account.

45. Indeed, it is held that the object of the assessment of the evidence is to enable the Courts to arrive at a fair and reasonable market value of the lands and in that process, sometimes the Courts are required to trench on the border of the guesswork but mechanical assessment has to be eschewed.

46. It is also held that Judges are required to draw from their experience and the normal human conduct of the parties as to which transaction is bona fide and genuine sale transaction because that is one of the guiding factors in evaluating the evidence.

47. It is also held that the amount awarded by the Land Acquisition Collector forms an offer and that it is for the landowners to adduce relevant and material evidence to establish that the acquired lands are capable of fetching higher market value and the amount offered by the Land Acquisition Collector is inadequate and that he proceeded on wrong principle.

48. This Court also examined the question as to how the Courts should judge the potentiality of the acquired land and what are the relevant consideration, which should be taken into consideration for deciding the potentiality of the land.

49. It is held that potentiality means capacity or possibility for changing or developing into state of 2 actuality. The question as to whether the land has a potential value or not is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and whether it has any proximity to residential, commercial or industrial areas or institutions. The existing amenities such as water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development need to be taken into consideration.

50. It is also held that the value of the smaller plots, which is always on the higher side, is usually not taken into consideration for determining the large block of the land. One of the reasons being that the substantial area of the large block is used for development of sites like laying out the roads, drains sewers, water and electricity lines and several civic amenities and to provide these facilities, lot of time is consumed. The deduction is, therefore, made, which ranges from 20% to 50% or in appropriate cases even more.

51. Keeping the aforementioned well settled principles of law in consideration, let us recapitulate the facts of the case hereinbelow to examine the issue arising in the case.

52. As mentioned above, the total land acquired for development and utilization of commercial and residential sector is situated in villages Safidon, Singpura, Rampura, Ratta Khera & Khera Khemawati in District Jind in State of Haryana. The acquired land comprises of more than around 300 acres or so and is thus a very large in chunk. The acquired land belonged to several landowners and obviously so being so large in volume. One side of the acquired land is abutting the road. The land has surrounding with some kind of activities in 2 nearby areas and this shows that the acquired land has some potential.

53. The Collector, therefore, taking into account all these factors considered it proper to classify the land on the basis of 2004-2005 revenue records in two heads for determining the compensation. The first head was in the name Nehri Chahi, i.e., canalling irrigated/water supplied from pipes in which land measuring 82-49 acres was included whereas the other parcel of land measuring around 117.08 acres, which is abutting the road, was included in other head in the name – To the depth of 2 acres from Safidon-Jind Road & Safidon bye pass Road and Gair Mumkin. – (see Award of the Collector dated 19.8.2010 (annexure P-3). The Collector made this classification by applying the Belting System. It is pertinent to mention that it was not objected by the landowners as would be clear from Para 3 of the Award dated 19.8.2010.

54. Since the land included under the head, i.e., Safidon- Jind Road and Safidon Bye pass Road and Gair Mumkin was abutting the road, the Collector fixed its market rate at Rs.33,00,000/- (Thirty Three Lacs) per acre up to the extent of the land going inside 2 acres from the road.

55. So far as the land included in the first head, i.e., Nehri- Chahi beyond 2 acres was concerned, the Collector fixed its market rate at Rs.18,00,000/- (Eighteen Lacs) per acre.

56. The Reference Court dismissed the reference and upheld the rates fixed by the Collector. The High Court, however, in an appeal filed by the appellants (claimants), in the impugned judgments, upheld the rate, i.e., Rs.33,00,000/- per acre so far as it relates to the land included in the head. – Safidon – Jind Road and Safidon Bye pass Road and Gair Mumkin saying that this does not need any enhancement but enhanced the rate from 2 Rs.18,00,000/- per acre to Rs.24,75,000/- per acre insofar as it pertained to land beyond 2 acres included in the head – Nehri Chahi.

57. We are of the considered opinion that the Collector was justified in applying the Belting System to the acquired land in question. Since the acquired land was a large chunk of land having its frontage abutting the roadside, the Belting System was rightly applied to the acquired land for determination of its fair market rate.

58. It is more so because we find that the appellants too did not raise any objection before the Collector and before the High Court and nor they were able to point out to us as to why it was not possible to apply the Belting System and what was illegal in its application.

59. It is for all these reasons, we find no merit in the submission of the learned counsel for the appellants when he questioned the application of  the Belting System to the acquired land for determining its fair market value.

60. This takes us to examine the next question as to whether the highest rate of Rs.4500/- per square yard of the land of the nearby area out of sale deeds should be made basis for determining the market rate of the acquired land. In our opinion, it is not possible to accept this submission of the learned counsel for the appellants though pressed in service vehemently.

61. It is for the reason that firstly, the area sold in each sale deed is very small as compared to the acquired land.

Secondly, the lands which were sold by these sale deeds is in square yards and ranges from 31.06 square yards to 440 yards whereas the acquired area in question is in acres and comprises of more than 300 acres.

Thirdly, out of sale deeds, there are as many as 31 sale deeds wherein the area comprises of less than 100 square yards.

Fourthly, except two sale deeds where 60 and 67 square yard of land was sold for Rs.4,500/- per square yard, all other sale deeds value ranges between Rs.200/- to Rs.2000/- per square yard.

Fifthly, there can be no comparison between the two lands due to the extent of area which are two extremes and lastly, since no sale deeds were filed by the appellants showing market price of any large chunk of land sold in acres at the relevant time, it is not possible to place reliance on any of these sale deeds for determining the market rate of the acquired land by applying the same rate (Rs.4,500/- per square yard). It is, in our opinion, neither permissible and nor proper to rely solely upon the rates of small plots and then determine the compensation for a large chunk of acquired land as in this case.

62. We have applied our mind keeping in view all the relevant factors coupled with the law laid down  by this Court. Taking into consideration all the relevant factors emerging from the evidence and the findings of the Courts below on the issues such as – the location of the acquired land, its surroundings, nature, potentiality, rates of small plots, the purpose of acquisition, development cost needed, non availability of the sale deeds for large areas sold in acres, etc., we are of the considered opinion that just, fair and proper market value of the acquired land in question on the date of issuance of Section 4 notification is determined at Rs.45,00,000/- (Forty Five Lacs) per acre in place of Rs.33,00,000/- (Thirty Three Lacs) per acre for the lands described in detail in column 2 of the Award of the Collector dated 19.08.2010 (Annexure P-3) at page 32 of the SLP paper book of C.A.No. 2846/2017 and Rs.35,00,000/- (Thirty Five Lacs) per acre in place of Rs.24,75,000/- (Twenty Four Lacs Seventy Five Thousand) per acre for lands described in detail in 3 column 1 of the said Award.

In other words, the appellants are held entitled to receive compensation for the acquired land as described hereunder: S. No. Class of Land Awarded Amount 1. Nehri, Chahi Rs.35 lacs 2. To the depth of 2 acres from Safidon-Jind Road & Safidon Bye Pass Road and Gair-mumkin land Rs.45 lacs

63. In addition to the aforesaid, the appellants are also held entitled to statutory compensation as provided in the Act and which the Courts below had already awarded to the appellants. We uphold the Award of such compensation. The two rates which we have determined above would apply to entire acquired land of all the appellants.

64. In the light of foregoing discussion, the appeals succeed and are allowed in part. The impugned judgments are partially modified in appellants’ favour by enhancing the compensation payable to appellants (claimants/landowners) in respect of their acquired land to the extent indicated above.

New Delhi;

October 27, 2017