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LAND LAWS INCLUDING TENURE & TENANCY SYSTEM SEM-VII

INTRODUCTION

The object of Chapter IIA containing sections 14A to 14I of the West Bengal Land Reforms
Act, 1955 is to protect the interest of the Schedule Tribes. Analogous provisions have been
made in Chapter VIIA of the West Bengal Tenancy Act. The various sections of Chapter IIA
of the West Bengal Land Reforms Act, 1955 have been enacted to provide for restriction on
the alienation of land by Schedule Tribes. Schedule Tribes under the West Bengal Land
Reforms Act, 1955 has the same meaning as in the clause (25) of Article 366 of the
Constitution of India, 1950. Originally, the earlier Section 13 of the West Bengal Land
Reforms Act provided for the restriction and alienation of land by Schedule Tribes. But, now
Chapter IIA has been added in the Act by the West Bengal Land Reforms (Amendment) Act
of 1965 and the old section 13 has been deleted by the said amendment.

Chapter IIA of the West Bengal Land Reforms Act, 1955 has come into force with effect from
the very first day of November, 1965 throughout the whole of West Bengal except the areas
transferred from Bihar to West Bengal. In the areas that fall under the transferred territories,
Chapter IIA of the West Bengal Land Reforms Act came into force from the first day of
October, 1969.

Section 14A of the West Bengal Land Reforms Act, 1955 declares that the provisions of the
Chapter IIA of the West Bengal Land Reforms Act, 1955 shall have effect notwithstanding
anything to the contrary contained elsewhere in the West Bengal Land Reforms Act, 1955.
Therefore, in case of conflict between the provisions of Chapter IIA of the West Bengal Land
Reforms Act, 1955 and the other chapters of the West Bengal Land Reforms Act, 1955; those
of Chapter IIA shall prevail. The primary aim of the chapter is to protect the interests of
Scheduled Tribe members by restricting their ability to transfer land they own. The concerned
project paper deals with the various provisions under Chapter IIA of the West Bengal Land
Reforms Act, 1955.

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RESTRICTIONS ON THE ALIENATION OF LAND BY SCHEDULE TRIBES

ALIENATION IN VIOLATION OF CONSTITUTIONAL POLICY

The Supreme Court in the case of Papiah v. State of Karnataka1, has laid down the reason of
the State to declare alienation by the members of the Schedule Castes or the Schedule Tribes
to be void and making provisions for restoration of such lands to such members of the
Schedule Castes or the Schedule Tribes as being based on Constitutional policy. It has been
observed that the right to economic justice to the Schedule Tribes, Schedule Castes and other
weaker sections of the society is a fundamental right.

The State must secure quality of status, opportunity and liberty, that economic justice is a
facet of liberty without which quality of status and dignity of person are illusory, that in rural
India, the land provides economic status of the owner and the State is, therefore, under
Constitutional obligation to ensure them opportunity giving its largess to the poor to augment
their economic position and assignment of land having been made in furtherance thereof, any
alienation, in its contravention, would be not only in violation of the constitutional policy, but
also opposed to public policy and consequently, any alienation made in violation thereof is
void and purchaser does not get any valid right, title or interest there under.2

The Full Bench of the Orissa High Court has observed in the case of Trilochan Dandsena v.
State3, that the onus to prove the validity of transfer and perfection of title by adverse
possession is upon the transferee. It has been observed that merely on the basis of possession
under a void transaction and nothing more, title by adverse possession cannot be matured,
more so when before the prescribed period, the person in possession who claims first
acquisition of title by an unregistered sale deed acknowledges vendors title by obtaining a
registered sale deed from the real owner. The same cannot be sustained if no evidence is laid
down in support of claim of adverse possession by the purchaser of the land which was
owned by the Schedule Tribe.

1 (1996) 10 SCC 533.

2 Mukhopadhya, Dibakar, Land Laws of West Bengal.

3 AIR 1995 Ori 239(FB).

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PERMISSIBLE TRANSFER BY SCHEDULE TRIBES

Section 14B of the West Bengal Land Reforms Act, 1955 has prohibited any transfer by a
raiyat belonging to a Schedule Tribe of his plot of land or part thereof and has declared that
any such transfer save as provided in Section 14C of the West Bengal Land Reforms Act,
1955 shall be void. However, certain transfers by Schedule Tribes are permissible which have
been enumerated as follows:

(1) A complete usufructuary mortgage by a member of the Schedule Tribe entered


into with a person belonging to a Schedule Tribe not exceeding seven years.

(2) Sale or gift to the Government by a person belonging to a Schedule Tribe for a
public or charitable purpose.

(3) Simple mortgage by a person belonging to a Schedule Tribe to the


Government or to a registered Co-operative society.

(4) Simple mortgage or mortgage by deposit of Title Deeds by a person belonging


to a Schedule Tribe in favour of a Scheduled Bank or a Co-operative Land
Mortgage Bank or a Corporation owned and controlled by the State or Central
Government or by both for the development of land and improvement of
agricultural productions.

(5) Gift or will by a person belonging to a Schedule Tribe to a person belonging to


a Schedule Tribe.

(6) Sale or exchange by a person belonging to a Schedule Tribe in favour of any


person belonging to a Schedule Tribe.4

4 Brown, Jennifer, Land Reform Law and Implementation in West Bengal.

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RESTRICTIONS ON THE ALIENATION OF LAND BY SCHEDULE TRIBES

SURRENDER BY RAIYAT TO A NON-MEMBER

Section 14C of the West Bengal Land Reforms Act, 1955 has categorized some transfers
which are permissible and some other transfers by a raiyat belonging to a Schedule Tribe to a
non-member to be void if not within the permission in writing of the Revenue Officer. But
such permission can only be granted in respect of transfer by sale and unless the Revenue
Officer is satisfied that no purchaser belonging to a Schedule Tribe is willing to pay the fair
market price of the plot of land or any part thereof and the proposed sale is intended to be
made for any purposes mentioned in the second proviso to sub-section (1) of Section 14C of
the West Bengal Land Reforms Act, 1955.5

It is, therefore, clear that the Revenue Officer has to be satisfied and unless he is satisfied that
the conditions have been fulfilled, namely, that no purchaser belonging to a Schedule Tribe is
willing to pay the fair market price of the plot of land or any part thereof and the proposed
sale is intended to be made for any purposes mentioned in the second proviso to sub-section
(1) of Section 14C of the West Bengal Land Reforms Act, 1955, the Revenue Officer cannot
grant such permission for sale of the plot of land or any part thereof of a raiyat belonging to a
Schedule Tribe to person who is not a member of a Schedule Tribe.6

Further, the Supreme Court has held in the case of Pandey Oraon v. Ram Chander Saoo7,
that in the absence of the definition of transfer in the Act and considering the situation in
which the exercise of jurisdiction is contemplated, the meaning of transfer cannot be confined
to transfer under the Transfer of Property Act, that provision that contemplates that where
possession passed from one to another and as a physical fact the member of the Schedule
Tribe is entitled to hold possession has lost it and a non-member has come into possession;
5 http://www.landesa.org/wp-content/uploads/2011/01/RDI_118.pdf

6 http://www.atiwb.nic.in/index_htm_files/Land%20Laws%20of%20West
%20Bengal.pdf

7 AIR 1992 SC 195.

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such situation would be covered by the expression transfer under the West Bengal Land
Reforms Act, 1955 and a situation of that type would be amenable to exercise of jurisdiction
within the ambit of the West Bengal Land Reforms Act, 1955.

TRANSFER BY WAY OF A WILL

In view of the provision of Section 14C(1)(d) of the West Bengal Land Reforms Act, 1955,
one of the permissible modes of transfer of land of one of the members of the Schedule
Tribes is by will, nut by virtue of that will he can bequeath the property to a person belonging
to a Schedule Tribe and not to a person who is not a member of a Schedule tribe.

It is held by the Division Bench of the Calcutta High Court in the case of Shyamal Kumar
Ghosh v. Anjali Das8, that such a transfer by will can only be challenged after the probate is
granted to such a person who is not a member of a Schedule Tribe. In the concerned case, an
application for probate of the said will executed by a member of the Schedule Tribe had been
challenged by his daughter on the ground that no probate can be granted in respect of such a
will in which the member of the Schedule Tribe bequeathed his property in favour of a person
who was not a member of the Schedule Tribe and it was submitted that the same may be
dismissed in limine.

The said application of the probate was converted into a suit, because of such objection by
the daughter and the Trial Judge dismissed the application for probate without taking any
evidences but on accepting the objection of the daughter that the deceased was a member of a
Schedule Tribe and had no right to execute a will in favour of a person who was not a
member of the Schedule Tribe. It was pointed out that in a proceeding for grant of probate,
the applicability of the Sections 14B and 14C of the West Bengal Land Reforms Act, 1955
may not arise at all, and that only after the probate is granted, the question shall arise as to
whether the transfer could be effected in favour of the plaintiff appellant by executing a will
in view of the bar imposed in Section 14C of the West Bengal Land Reforms Act, 1955, that

8 (2000) 1 Cal LJ 590.

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in a probate proceeding, it is not the function of the Probate Court to go into the question of
title of the testator in respect of the property which by way of the will purports to be disposed
off. So, the order of the Trial Court was set aside and the suit was remitted back to the Trial
Court to frame the issues and decide the probate suit after permitting the parties to adduce
necessary evidences.

STATUS ON CONVERSION

A question arose before the Division Bench of the Calcutta High Court as to whether a
member of the Scheduled Tribes would cease to be a member of that Schedule Tribe after
embracing Christianity. The High Court in the case of K. Hansda v. Phanindra Nath Soren9,
held that change of religion of a member of a Schedule Tribe would not have the effect of
such a member losing the protection conferred upon a member of the Scheduled Tribes.

However, in a later judgment of the Supreme Court in the case of C.M. Arumugham v. S.
Rajagopala10, it was held that the question as to whether on conversion to Christianity, the
respondent ceased to be a member of the Schedule Tribe was a mixed question of law and
facts and in the absence of any evidence on record, it could not be held that even on
conversion to Christianity, the member continued to be a member of the Scheduled Tribe. It
has been pointed out by the Supreme Court in that case that it cannot be held as an absolute
rule uniformly applicable in all cases that whenever a member of a caste is converted from
Hinduism to Christianity, he loses his membership of the caste and that even if it is the rule
that ordinarily on conversion to Christianity, he would cease to be a member of the caste but
that it is not an invariable rule which would depend on the structure of the caste and its rules
and regulations.

9 41 CWN 32.

10 AIR 1976 SC 939.

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As seen in the case of Shyamal Kumar Ghosh v. Anjali Das 11, the Calcutta High Court did
not approve of the findings of the K.Hansdas case. The Division Bench was of the opinion
that such a question has to decided in the light of the decision of the Supreme Court findings
on taking appropriate evidence to decide whether even after embracing and converting to
Christianity long time ago, the testator continued to be a member of the said Scheduled Tribe
or not.

TRANSFER IN CONTAVENTION OF CHAPTER IIA

Section 14D of the West Bengal Land Reforms Act, 1955 states that transfer in contravention
of Chapter IIA shall not be valid unless registered:

(1) No transfer of any land or any interest in such land by a raiyat belonging to

a Scheduled Tribe shall be valid unless made by a registered instrument.

(2) Notwithstanding anything contained in the Registration Act, 1908 or in any

other law for the time being in force, no instrument of transfer or dealing
with land or interest in such land by a raiyat belonging to the Scheduled
Tribe made in contravention of the provisions of this Chapter shall be
recognised as valid by any court, officer or authority exercising civil,
criminal or revenue jurisdiction and no registering officer shall register any

such instrument unless he is satisfied that the instrument does not


contravene any of the provisions of this Chapter.

11 (2000) 1 Cal LJ 590.

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(3) If, in course of registration of any instrument referred to in sub-section (2)


or in any proceeding relating to the registration of such instrument or in
any proceeding before any civil, criminal or revenue court, any question
arises as to whether the raiyat executing such instrument belongs to the
Scheduled Tribe or as to whether such instrument has been made in
contravention of the provisions of this Chapter, the registering officer or
other officer or authority exercising powers under the Registration Act
1908 or the civil, criminal or revenue court before whom such question
arises, shall refer such question to the Revenue Officer referred to in
section 14C and shall give effect to the decision of the Revenue Officer.12

As seen in the case of Kartik Chandra Mandal v. Netai Mandal13, after the introduction of
Section 14 of the West Bengal Land Reforms Act, 1955, partition of a holding can be
effective only by a registered instrument or by decree or order of the Court. Oral partition is
not valid in law and without a valid partition, the plaintiff cannot ask for permanent
injunction against a co-sharer.

Further, in the case of Lakshmidhar Mahalik v. State of Orissa14, when the members of the
members of a Schedule Tribe sought permission for transfer of the land in the favour of the
vendees who were not the members of the Scheduled Tribe and the same was rejected, the
sale deed even if registered on misrepresentation being made that the permission had in fact
been granted, such sale was held to be invalid by the Orissa High Court.

12http://banglarbhumi.gov.in/banglarbhumi/
(S(ugwxdm0duudv0nld41d44etz))/DwnLod/West%20Bengal%20Land%20Reforms
%20Act,%201955.pdf

13 2009(1) CLJ (SC) 225.

14 AIR 2000 Ori. 79.

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POWER TO SET ASIDE IMPROPER TRANSFERS

The Revenue Officer has been given the power to set aside the following transfers, namely
under the West Bengal Land Refo rms Act, 1955:

(1) If transfer of a plot of land or portion thereof made by a raiyat belonging


to a Scheduled Tribe is in contravention of the provisions of Sec. 14C; or

(2) If the permission for the transfer is found after an inquiry in the prescribed
manner to have been obtained by misrepresentation or fraud; or

(3) If in the case of complete usufructuary mortgage referred to in clause(a) of


Section 14C(1), the transferee has continued or is in possession for more
than seven years from the date of transfer.

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Such power may be exercised by the Revenue Officer either on his own motion or on an
application made in that behalf. But, after giving the transferee an opportunity of being heard
after holding such necessary inquiry, the Revenue Officer has to pass an order in writing
directing the annulment of transfer where necessary and ejecting the transferee from such
holding or part thereof.

It has been held by the Calcutta High Court in the case of Charowa Oraon v. State of West
Bengal15, that Chapter IIA of the West Bengal Land Reforms Act, 1955 covers the field of
transfer of land to be made by the members of Scheduled Tribes and if in violation of any of
the provisions of the said chapter, any transfer has taken place without the proper permission
of the Revenue Officer, then such land is bound to be restored to the original owner.

CONCLUSION

The primary aim of Chapter IIA of the West Bengal Land Reforms Act, 1955 is to protect the
interests of Scheduled Tribe members by restricting their ability to transfer land they own.
Improvident or coerced sales by Scheduled Tribe landowners to non-Scheduled Tribe persons
have been a problem in West Bengal as in many other parts of India. The general restriction
on such sales is a response to this phenomenon and is intended to protect Scheduled Tribe
landowners. It does have the unfortunate consequence of lowering the value of Scheduled
Tribe-owned land (and thus the net wealth of the Scheduled Tribe owners). Whether this is a
good trade-off for Scheduled Tribe landowners is a topic requiring further research. In any
case, the West Bengal legislation is not unduly restrictive as it allows for exceptions to the
general prohibition on sale upon approval by the Revenue Officer.

The parliament should consider amending the law to give all Scheduled Tribe members in the
locality a preemptory right to purchase land being sold by an Scheduled Tribe landowner
before it can be purchased by a non-Scheduled Tribe person. Currently, the law gives the
15 1998 WBLR (Cal.) 448.

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Revenue Officer the discretion to determine whether any Scheduled Tribe member is willing
to pay the market price before approving a sale to a non-Scheduled Tribe person.

Giving all Scheduled Tribe members in the locality a preemptory right to purchase such land
would improve the law in two respects. First, the publication and notification rules
accompanying such a preemptory right would help ensure that Scheduled Tribe members
learn of such sales to non-Scheduled Tribe persons. Second, it would give Scheduled Tribe
members the right to purchase land at the price offered by a non-Scheduled Tribe person even
when that price is below the market price.

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