Judicial Academy Jharkhand HANDBOOK ON LAND LAW PDF

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HANDBOOK ON LAND LAW C.N.T. Act. 1908 S.P.T. Act. 1949 B.L.R. Act. 1950 Wilkinson Rules Land Acquisition Act Judicial Academy Jharkhand This book is also available on official website of Judicial Academy Jharkhand "www.jajharkhand.in" Judicial Academy Jharkhand Ranchi ii INDEX 1. LAND LAW ...

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HANDBOOK ON LAND LAW C.N.T. Act. 1908 S.P.T. Act. 1949 B.L.R. Act. 1950 Wilkinson Rules Land Acquisition Act

Judicial Academy Jharkhand This book is also available on official website of Judicial Academy Jharkhand "www.jajharkhand.in"

Judicial Academy Jharkhand Ranchi

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INDEX 1.

LAND LAW : C.N.T., S.P.T., B.L.R., ACT – Gautam Kumar Choudhary, Director, Judicial Academy...................................................... 1-58 a. Introduction.........................................................................................................................................3-11 b.

Main Provisions of C.N.T. Act......................................................................................................12-31

c.

Main Provisions of S.P.T. (Supplementary Provisions) Act, 1949..............................32-42

d.

Main Provisions of B.L.R. Act.....................................................................................................43-50

e. Glossary..............................................................................................................................................51-53 f.

Appendix - I — Continuous Khaitan (Form No. 1)...........................................................54-55

g.

Appendix - II — Tenants Ledger (Form No. 2)...................................................................56-58

2.

Wilkinson Rule a Critical view Sri P.K. Srivastava, Principal District & Sessions Judge, Chaibasa........................................................................59-79

3.

Hope for Land Loosers under 1894 Land Alienation Act in Jharkhand Sri Nalin Kumar, O.S.D. to H.E. the Governor of Jharkhand.................................................................................80-82

4.

Land Acquisition Rehabilitation and Settlement Act, 2013 Biresh Kumar, Special Judge, Land Acquisition Cum Special Judge Economic Offences, Dhanbad...........................................................................83-88

5.

List of Important Authorities.................................................................................. 89-218 a.

2008 (4) JCR 542 (Jhar.) Felix Tamba Vs. State of Jharkhand The rights of raiyats belonging to S.C. or S.T. to mortgage his raiyati right in holding for construction of house and educational purpose. ................................................................................................................. 91-107

b.

2014 (1) JCR 342 (Jhar.) The State of Jharkhand Vs. Taurian Infrastructure Mutation order can be passed only on the basis of possession – Title not to be determined. .................................................................................................. 108-115

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c.

2009 (4) JLJR 106 Mahadeo Oraon Vs. State of Bihar Unregistered hukumnama is not admissible and cannot be considered as a deed of gift. ................................................................................................ 116-119

d.

2008 (4) JCR 429 Mahabir Kansi Vs. State of Jharkhand Jamabandi based on forged sada hukumnama is illegal and liable to be cancelled............................................................................................................... 120-122

e.

2008 (3) JCR 639 (Jhar.) Dineshwar Prasad Vs. State of Jharkhand Long running jamabandi cannot be cancelled except by a decree or order of competent court. ............................................................................... 123-126

f.

2009 (2) JCR 153 (Jhar.) Jagdeo Mahto Vs. Commissioner, North Chotanagpur Jamabandi can be cancelled when the order is passed by an authority not having authority or jurisdiction to pass such an order.................................................................................................................... 127-134

g.

2013 (4) JCR 692 Jagjivan Singh Vs. State of Bihar Section 71(A) and 46 of C.N.T. Act – Merely because a settlement is made within one year of surrender, it would not necessarily mean that surrender and settlement would form part of the same transaction. ............................................................................................................. 135-142

h.

2008 (14) SCC 774 Fulchand Munda Vs. State of Bihar No limitation provided under section 71(A) but the same must be exercised within a reasonable time. .............................................................. 143-148

i.

2013 (2) JCR 691 (Jhar.) Bheem Singh Munda Vs. State of Jharkhand Scope of Sections 87, 254 and 251 with respect to the entry relating to Mundari Khuntkattidar. ...................................................................... 149-152

j.

1997 (5) SCC 112 Baleshwar Tiwari Vs. Sheo Jatan Tiwari Meaning of the word khas possession in sections 6(1) and 2 (K) of the B.L.R. Act ............................................................................................................. 153-160

k.

AIR 1962 SC 50 State of Bihar Vs. Umesh Jha The construction of section 4(h) of B.L.R. Act.............................................................. 161-164

iv

l.

2002 (9) SCC 677 State of Bihar Vs. Sharda Prasad Rai Scope of Section 4(g) and (h) of B.L.R. Act. .................................................................. 165-167

m.

1985 (0) AIR (Pat.) 77 Most. Bibi Sayeeda Vs. State of Bihar Construction of word bazaar in section 4(1) (a) of B.L.R. Act. ........................................................................................................................ 168-176

n.

2010 (2) JLJR 392 Sharmistha Sinha Vs. State of Jharkhand Section 71(A) C.N.T. Act – Restoration of chhaparbandi land.............................................................................................................. 177-182

o.

1978 (0) AIR SC 312 Korin @ Etwari Devi Vs. India Cable Company Ltd. Protection against ejectment to tenant who had become a “Korkar” raiyats. .................................................................................................. 183-185

p.

AIR 1987 (Pat.) 167 Paritosh Maity Vs. Ghashi Ram Maity Mainability of Civil Suit for declaration of title and confirmation of possession challenging entries in revenue records. .................................................................................................. 186-196

q.

1976(2) SCC152 Guru Charan Singh Vs Kamla Singh The purport of “vesting” in B.L.R. Act ............................................................................. 197-211

r.

2004 (1) J.C.R. 407 Jamhir Ansari Vs. Ketna Organ Abandonment and Settlement of Land............................................................................ 212-220

s.

AIR 2000 (Patna) 101 Mora Ho Vs. State of Bihar Validity of Wilkinson Rule..................................................................................................... 221-246

t.

2014 (3) SCC 183 Pune Municipal Corporation & Anr. Vs. H.M. Solanki Right to fair compensation and transparency under section 24 (1) and (2) of the Land Acquisition Act, 2013.................................................................................................. 247-254

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LAND LAW : C.N.T., S.P.T., B.L.R., ACT

LAND LAW : C.N.T., S.P.T., B.L.R., ACT “Just like in heaven, everybody wants a piece of land” ...John Steinbeck

a. INTRODUCTION Land is at the root of many a litigation both civil and criminal in the Subordinate Courts. The core of civil litigation in the subordinate courts is related to the land and different types of rights associated with it. Suits of different nature like declaratory suit for title based on inheritance, or partition, specific performance of contract for sale, claim of title over the land on the basis of adverse possession have all their genesis in land disputes. Trial Courts as well as first appellate courts, being courts of fact have to arrive at a clear finding of facts in such cases. In civil cases documentary evidence assumes greater significance as it excludes oral evidence under Sections 91,92 and 94 of the Evidence Act. To gain clear grip over the facts of a case the ability to read and analyse the documents adduced into evidence is of fundamental importance. The documents which usually come up for consideration in a civil case are land revenue records like, record of rights, revenue receipts, settlement deeds, sale deeds, records of mutation proceedings. It is a settled principle of law that revenue records neither create nor extinguish title nevertheless they are valuable piece of evidence. The ability to read these documents is the first requisite before the import and effect of these documents could be fully appreciated. The main Tenancy and land reform laws in the state of Jharkhand are Bihar Land Reforms Act, 1950, Chotanagpur Tenancy Act, 1908 and Santhal Pargana Tenancy Act, 1949. Different provisions of these Acts may apply in one case depending upon the facts of the case. There is an interplay of tenancy and land reform Acts and therefore a clear conception of law on the point is essential for a Presiding Officer of a court. In most of the cases involving land dispute these Acts come up for consideration and therefore a clear understanding of these Acts is of paramount importance. This article attempts to deal with the broad outline and important provisions with case laws, which is necessary to understand the land law and its evolution. The CNT and SPT Act were enacted for different administrative districts of Chotanagpur and Santhalpargana. At present in the the Districts of Santhalpargana viz Dumka, Sahebganj, Godda , Jamtara, Godda and Deogarh and Pakur the provisions of SPT Act apply and in other districts of Jharkhand the provisions of CNT Act apply. The claim of title invariably involves determination of the chain of title through which the property is claimed to have devolved. It can be based on inheritance, partition, conveyance and will. In any case, devolution of title depends upon the title of person, through whom the title is claimed . The oft repeated saying goes that no one can convey a better title than he himself has. Therefore the title of the person through whom the claim of title is made becomes a crucial issue on which the fate of the civil suit turns either way. In order to give a finding regarding title, the issues of the classes of tenants and tenure holders and their right over the land in question may

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LAND LAW : C.N.T., S.P.T., B.L.R., ACT come up directly or incidentally in a suit. Bihar Land Reforms Act 1950 brought a tectonic shift in the agrarian relation by removing intermediaries and their interest came to be vested in the State. Certain lands in the Khas Possession of the intermediaries were saved from the rigors of vesting. Briefly stated , the type of land which vested in the State, depends largely on the nature of the land and the tenure.

HISTORICAL BACKGROUND To comprehend the present Land law it is necessary to travel to pre-independence time. Pre-colonial Administrative system of Chota nagpur : Though Chota Nagpur has long history of settled life, it never had any strong centralized system of governance. Different tribal communities were governing their own villages . During the Mughal empire the formal allegiance of local ruler was obtained but it never penetrated deep into the villages so as to exercise direct control. Munda Manki System : This village based administrative system varied depending upon the communities, but usually it was governed by the village headman known as Munda and the priest was known as Pahan. Network of 8-10 villages were headed by a Manki who used to solve disputes arising between / among different mundas. The pieces of land were held jointly by the villagers and there was no concept of an individual holding of land as a proprietor of land in his own personal capacity. Different portions of land were earmarked for different purpose, like some portion of the land was marked as rajhas the produce of which was reserved to be sent to the king as tribute, certain portion was reserved for religious activities called sarana land, some portion of land for community dancing and celebration known as akhars land and some portion of agricultural produce was for everyday use. rule.

Munda Manki system has to a large extent been retained in Kolhan area under the Wilkinson

Structural changes in the land administration in colonial era :Land revenue was the primary source of the State income and therefore the Govt took keen interest to regularize the Land Record. East India Company in 1765 received Dewani Right to Collect land rent of Bengal subha from the Mughal emperor by the Allhabad Treaty after the battle of Buxar. By and large the company initially continued the system of revenue collection of the Mughal. Chotanagpur fell in the Bengal province hence, the company asserted its right to collect land revenue in cash from the inhabitants of Chotanagpur. The first major step in this direction was taken by Lord Cornwallis in 1790 with announcement of permanent settlement of landrevenue for a period for ten years in Bengal. The East India Company introduced zamindari system to collect land revenue in Bengal presidency including the area of Chotanagpur. Its effect was to make the Zamindars permanent owners of the land subject to payment of a fixed annual revenue to the Government. Bihar was part of Bengal at that time and the introduction of the new system

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LAND LAW : C.N.T., S.P.T., B.L.R., ACT of land revenue collection resulted in exploitation and tribal unrest in parts of Chota Nagpur and Santhal Pargana. Further,the system of revenue collection in cash was strongly disliked by the inhabitants which resulted in Kol uprising in 1832. It was against this background that CNT Act was enacted basically to protect the interest of tribals from being dispossessed from their land . The Chotanagpur Tenures Act, 1869 was enacted, which provided for appointment of Commissioners and the Commissioners were empowered to investigate and ascertain the titles and tenures of all lands within the limit assigned to him which may be alleged by any person to be held upon “Bhuinhari and Majhahas” respectively. The power of restoration was also vested with the Special Commissioner for restoration of Bhuinhari and Majhahas tenures wrongfully dispossessed Chotanagpur Landlord and Tenant’s Procedure Act was enacted in the year 1879 and apart from the subsequent amendments made therein complementary legislations in the shape of Chotanagpur Commutation Act, 1897, the Chotanagpur Tenancy (Amendment) Act, 1903 and the Chotanagpur (Amendment) Act, 1905 were duly promulgated. Because of the necessity to amend and consolidate the law relating to the landlord and tenant and the settlements of land in Chotanagpur the Chotanagpur Tenancy Act, 1908 was promulgated and the statutes mentioned above were then repealed. To give further protection to raiyats in general and particularly to those who were members of the scheduled tribes amendments were made in the Act by substituting section 14 by section 46 of the CNT (Amendment)Act, 1947 placing restrictions on the right of the raiyat to transfer the land. To effectuate the same purpose later section 71A was inserted by serial no. 3 of the Bihar Scheduled Areas Regulation, 1969 with specific reference to the raiyats, who were members of the scheduled tribes. By the same amending Act in section 72 a further limitation was placed on the surrender of land by a raiyat in so far as it could be done only with the previous sanction of the Deputy Commissioner in writing.

LAND SURVEY OPERATION Land revenue being the biggest source of the revenue of the State, it was the primary concern of the Govt to conduct Survey of land to prepare the record of rights with the details of the land, tenant and the Land Lord. The Government of India wrote to the Secretary of state for India vide letter bearing No. 6 dated the 21st March, 1882 explaining the general objects of survey and preparation of record of rights to put an end to the uncertainty which led to land disputes, to protect the raiyats, to improve local knowledge and enable Revenue officers and civil courts to more effectively examine and deal with various land related disputes. The special objects were :1.

The preparation of reliable maps of estates, tenures and holdings.

2.

The protection of the aborginals (tribes) against unscrupulous landlords.

3.

Fixation of the amount of praedial conditions (abwabs and begari) and their commutation into fixed cash payments.

4.

The recording of local usages and customs.

The colonial government conducted massive cadastral survey (1902onwards) and revisional survey(1927 onwards) to prepare record of the rights of the land holders. A cadastre is normally a parcel based and up to date land information system containing a record of interests in land

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LAND LAW : C.N.T., S.P.T., B.L.R., ACT ie rights, restrictions and responsibilities. The revisional survey and settlement operation 1930 settled rents for the raiyats of every denomination. Every raiyat was given khatian which contained the description of the plots and the rents which he was to pay to the landlord. The record of the cadestral and revisional survey is still the only authentic records of the land in Jharkhand . Land surveys were conducted in different areas. The survey was conducted to prepare the land records and the detailed procedure has been laid down in chapter XII of the CNT Act. Section 81 provides the particulars to be recorded in the record of rights. Section – 81 of CNT prescribes the particulars to be recorded such as:(a)

Name of each tenant or raiyat / occupant

(b) The class of the tenant whether tenure holder, Mundari Khunt- Kattidar, settled rayiat, occupancy rayiat, non-occupancy-raiyat, under -raiyat etc. (c)

The boundary of the land

(d)

The name of the landlord.

(e)

The name of each proprietor in the local area or estate

(f)

The rent payable

(g)

The mode in which the rent has been fixed whether by contract, by the order of the court or otherwise.

(h)

If the rent is gradually increasing the time to recorded

(i)

The rights and obligation of the raiyats

(j)

The special conditions

(k)

Any easement attaching to the land for which the record of right is being prepared.

(l)

If the land is claimed rent free – whether the rent is actually paid.

(m) The rights on forest produce, jungle land or waste land or to graze cattle on any land. (n)

The right of any resident of the village to reclaim jungle land / waste land or to convert land into korkar.

Before the final publication of record of rights a preliminary publication is made under section 83, which is the draft record of rights so as to receive and consider the objections made in the entries therein. Under it the objections have to be considered and disposed of in the prescribed manner. Revenue Officer shall finally frame the record and cause it to be finally published which shall be a conclusive evidence that record has been duly made under this...