Transfer of raiyat’s rights

(1) No transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, shall be valid unless the right to transfer has been recorded in the record-of-rights, and then only to the extent to which such right is so recorded. Provided that a lease of raiyati land in any sub-division for the purpose of the establishment or continuance of an excise shop thereon may be validly granted or renewed by a raiyat for a period not exceeding one year, with the previous writt3en permission of the Deputy Commissioner. Provided further that where gifts by a recorded Santhal raiyat to a sister and daughter are permissible under the Santal Law, such a raiyat may with the previous written permission of the Deputy Commissioner, validly make such a gift; Provided also that an aboriginal raiyat may, with the previous written permission of the deputy Commissioner, make a garnt in respect of him lands not exceeding one fhalf of the area of his holding to his widowed mother or to his wife for her maintenance after his death. (2) Notwithstanding any thing to the contrary contained in the record-or-rights, no right of an aboriginal raiyat in his holding or any portion thereof which is transferable shall be transferred in any manner to anyone but a bona fide cultivation aboriginal raiyat of the parganan or taluk or tappa in which the holding is situated. Provided that nothing in this sub-section shall apply to a transfer made by an aboriginal raiyat of his right in his holding or portion thereof in favour of his gardi jamai or ghar jami. Provided further that a raiyat who is a member of aboriginal tribes or aborigine cates may, with the previous sanction of the Deputy Commissioner and a raiyat, who is not a member of the aboriginal tribes or aboriginal castes may without such previous sanction, enter into a simple mortgage in respect of his holding or a portion thereof with any Scheduled Bank within the meaning of the Reserve Bank of India Act, 1934, or a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935(Bihar and Orissa Act VI of 1935) or a financial instituting or with a Company or a Corporation owned by or in which not less than fifty one percent of share capital is held by the State Government, or the central government, or partly by the Central government and which has been set up with a view to provide agricultural credit to cultivators. (3) No transfer in contravention of sub—section (1) or (2) shall be registered, or shall be in any way recognised as valid by any Court, whether in exercise of civil, criminal or revenue jurisdiction. (4) No decree or order shall be passed by any Court or officer for the sale of the right of a raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order, unless the right of the raiyat to transfer has been recorded in the record-of-rights or provided in this Act and then only to the extent to which such right is so recorded or provided. Provided that a holding or a portion thereof an occupancy raiyat may be sold in accordance with the procedure laid down in Bihar and Orissa Public Demands Recover Act, 1914 (B and O. Act 4 of 1914) for the realisation of loans taken from any scheduled bank within the meaning of the Reserve Bank of India Act, 1934, or a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935) or Financial institution, or a company or a corporation owned by or in which not less than fifty-one percent of share capital is held by the State Government or the Centre government or partly by the State Government and partly by the Central government and which has been set up with a view to provide agricultural credit to cultivators, but if the holding or portion thereof belongs to a raiyat who is member of aboriginal tribes or aboriginal castes, it shall not be sold to any person who is not a member of the aboriginal tribes or aboriginal castes. (5) If at any time it comes to the notice of the Deputy Commissioner that a transfer of land belonging to a raiyat who is a member of the Scheduled Tribes as specified in Part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, has taken place in contravention of sub-section (1) or (2) or by any fraudulent method including decrees obtained in suits by fraud or collusion’, he may, after giving reasonable opportunity to the transferees, who is proposed to be evicted, to show cause and after making necessary enquiry in the matter evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or in the case the transferor or heir is not available or is not willing to agree to such restoration, re-settle it with another raiyat belonging to the Scheduled Tribes according to the village custom for the disposal of an abandoned holding: Provided that if the transferee has within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner, shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same withing a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such a transfer where the transferee either, makes available to the transferor an alternative holding or portion thereof, as the case may be, of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor: Provided also that if after an enquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another raiyat, as the case may be to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be, and the amont of any compensation for improvements effected to land which the Deputy, Commissioner may deem fair and equitable. Explanation.- For the purpose of this section a financial institution means,- i. a banking company as defined in the Banking regulation Act 1949, ii. the State Bank of India constituted under the State Bank of India Act, 1955, iii. a subsidiary Bank as defined in the State Bank of India) Subsidiary Bank) Act, 1959, iv. a corresponding new bank constituted under the banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, v. Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963, vi. the Agro- Industries Corporation, vii. the Agricultural Finance Corporation Limited, a company incorporated under the Companies Act, 1956, and viii. any other institution as may be notified in this behalf as a financial institution by the State Government in the Official Gazette. compensation for improvements effected to land which the Deputy, Commissioner may deem fair and equitable] [Explanation.- For the purpose of this section a financial institution means,- i. a banking company as defined in the Banking regulation Act 1949, ii. the State Bank of India constituted under the State Bank of India Act, 1955, iii. a subsidiary Bank as defined in the State Bank of India) Subsidiary Bank) Act, 1959, iv. a corresponding new bank constituted under the banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, v. Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963, vi. the Agro- Industries Corporation, vii. the Agricultural Finance Corporation Limited, a company incorporated under the Companies Act, 1956, and viii. any other institution as may be notified in this behalf as a financial institution by the State Government in the Official Gazette.] Section 20(5)- Transfer made even prior to coming into force of the Scheduled Area Regulation. [Amrendra Nath Dutta v. State of Bihar, AIR 1983 Pat 151: 1983 B L J R 609: 1983 BLT (Rep) 111: 1983 B B C J 254]. Section 20(5)- Forcible dispossession will come under the purview of Schedule Area Regulation, 1969. The word transfer does not mean exactly the Definition given under Transfer of Property Act. Infact transfer means possession passes from one person to another person as a physical fact. [Pandey Oraon v. Ram Chandra Sahu, A I R 1992 SC 195]. Section 20- Title by adverse possession cannot be acquired by a person after the enactment iof S P T Act, 1949. Any such transfer shall be held in contravention of the Act. [Bhouri Lal Jain v. S D O, 1972 P L J R 415 (FB): A I R 1973 Pat 1]. Section 20- A purchaser cannot perfect his title by adverse possession after coming into force of S P T Act, 1949. Sub Divisional Officer has jurisdiction to ignore the compromise decreed passed by the Civil Court. [Raja Miyan v. Puran Miyan, 1986 P L J R 1013]. Section 20(5)- Section 71- of the CNT Act, 1908 is similar to sub-section (5) of Section 20 of S P T Act, 1949. A member of the Scheduled Tribe can invoke the jurisdiction of Deputy Commissioner to restore his land which is transferred in contravention of the Act or by fraudulent method. [Ram Chandra Sahu v. Commissioner, 1991 (1) P L J R 16 (F B) : 1990 (2) B L J R 929]. Section 20(5) – The provision of Scheduled Are Regulation is beneficial in nature and legislative intension is to extend protection to class of citizen who are not imposition to keep their property themselves in absence of protection, the Court has to give liberal construction to the protective mechanism which would work out the protection and enable the spare of protection to be effective than limit the scope. [Pandey oraon v. Ram Chandra Sahu, A I R 1992 S C 195]. Sections 20(1), 20(2) and 20(5) as amended by Scheduled Are Regulation, 1969 and Section 42- Whether the provisions arfe ultra vires of Articles 13, 14, 19 (1) (f) and 31 of the Constitution. It is held that Section 42 of the Act is a legislation in respect of Entry 21, List 11- State list of several schedule of the Constitution and not violative of being repugnant the provisions of Limitation Act. A central legislation delaling with acquisition of right by adverse possession Section 20 (5) of the Act is a valid piece of legislation and is not ultra vires the Constitutional provision. [Bhauri Lal Jain v. Sub-Divisional Officer of Jamtara, 1972 P L J R 415 : A I R 1973 Pat 1: 1972 B L J R 897 : I L R ( 1972) 51 Pat 533 (F B)]. Section 20- Bar to transfer raiyats rights- The suit, for the relief sought for is not maintainable in view of the bar created under Section 20 of the Act provided, of course the conditions, in terms of provisions of the Act and fulfilled. As the issue regarding maintainability of the suit has not been framed and, as such, the Court below had no occasion to deal with the question in hand. [Mithu Tanti v.Raghunath Prasad Tanti, 1996 (1) P L J R 132 (Pat)]. Section 20- Bar under- Statutory- Transfer of land within the municipal area where no record of rights have been prepared- Requirement of an inquiry as to whether the land is transferable or not-Demand of verification report of the Circle Officer in a prescribed format before the Registrar for the registration of deeds- Demand is for the purpose of giving effect to the statutory bar created under the provisions of the Act-No reason to interfere with such requirement/demand. [Shyam Sunder Barnwal v. State of Jharkhand and others, 2004 (3)]. Section 20(5)- The word “transfer” Meaning thereof- Held, the act of forcible dispassion of a raiyat belonging to Schedule Tribe by another person is not a transfer in violation of provisions of the Act-In such cases provision of Scheduled Area Regulation is not applicable- 1987 BL T ( Rep) 177 and 1988 BLT (Rep) 15 followed, Jalpa Tudu’s Case 1981 B B C J 296.- Under Section 71-A of the C N T Act the conditions precedent for invoking the jurisdiction of the Deputy Commissioner under the said Act is transfer of land belonging to a member of the Scheduled Triber kin Contravention to the provisions of Section 46 or any other provisions of Act or by any fraudulent method. Therefore, the Deputy Commissioner may direct for restoration of the land in question only in the event if it is held that transfer has taken place in violation of the provision of the said Act or by any fraudulent method. When, if a wider meaning is assigned to the word ‘transfer’ forcibly dispossession of raiyat by another person cannot be any stretch of imagination be held to be a transfer. Further, from a bare perusal of Section 71-A of the Act, it will be evident that transfer connotes an act on the part of the raiyat belonging to the member of the Scheduled Tribe himself in favour of another person. Therefore, an act of forcible dispossession of raiyat belonging to Scheduled Tribe by another person, being not a transfer in violation of the said Act, the provision of Section 71-A thereof cannot be said to have any application whatsoever. The observation of the Patna High Court (Ranchi Bench) is overruled by Supreme Court in the Case of Pandey Oraon v. Ram Chandra Sahu reported in A I R 1992 S C 195, Supreme Court, now has defined the word “Transfer’ “ in the following manner- “In the absence of definition of transfer and considering the situation in which exercise of jurisdiction contemplated, it would not be proper to confine the meaning of transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated, in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession and a non-member has come into possession would be covered by transfer and a situation of that type would amenable to exercise of jurisdiction within the ambit of Section 71-A of the CNT Act. [Ram Chandra Salhu v. Commissioner, South Chotanagpur, Ranchi, 1990(2) BLJR 929:1991(1) PLJR 17(FB)]. Section 20(5) (As amended by Bihar Regulation 1 of 1969) – Forcible Dispossession from the land is not transfer—It is not the case of transfer by fraudulent means-Held-Section 20(5) of the Act does not attract. The observation of the Patna Hight Court is overruled by Supreme Court in the Case of Pandey Oraon v. Ram Chandra Sahu, repoted in AIR 1992 SC 195. [ Jalpa tandu v. Commissioner of Bhagalpur Division, 1981 BLJR 473:1981 BBC] 296:1981 BLJ 499].