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, raiyator 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.