Contract and custom
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;
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.
Permanent mukarrarileases.— 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 mukarrarilease 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.
Utbandi, churand 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 dearah land, 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 a raiyat 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 asutbandi land (hereinafter referred to as utbandi 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
(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 as utbandilands 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 partethe 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 orijaradar 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 as utbandilands 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.
Saving as to service tenures.— Nothing in this Act shall affect any incident of a ghatwalior 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.
Homesteads.— When a raiyator an under-raiyatholds 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 to raiyats’ or under-raiyats’, as the case may be.
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.