Land Law Assesment 1

AMITY LAW SCHOOL AMITY UNIVERSITY LUCKNOW

SESSION: 2017-22

LAND LAW ASSIGNMENT TOPIC- KINDS OF TENURE HOLDERS AND THEIR RIGHTS

SUBMITTED TO:

SUBMITTED BY:

MS. MUDRA SINGH

Pushkar Pandey

AMITY LAW SCHOOL

B.A. LLB (H) SEM VI A8111117101

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my faculty Ms. Mudra Singh as well as my Head of the Institution Dr. J. P. Yadav, who gave me the golden opportunity to do this wonderful project on the topic Kinds of Tenure Holders and their Rights, which also helped me in doing a lot of research and I came to know about so many new things. I am really thankful to them. Secondly, I would also like to thank my parents and friends who helped me a lot in finishing this project within the limited time. I am making this project not only for marks but to also increase my knowledge. Thanks again to all those who helped me.

- pushkar

CLASSES OF TENURE-HOLDERS

Before coming into operation of the Uttar Pradesh Zamindari Abolition and Land Reforms Act there were fourteen complicated and bewildering varieties of tenures existing, which are: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii)

Fixed-rate-tenant Ex- proprietary tenant Tenant holding on special terms in Avadh Hereditary tenant Occupancy tenant Non-occupancy tenant Grove-holder Muafidar or Rent-free grantee Grantee at favourable rate of rent Tenant of Sir land Occupant Guzaredar or person holding the land in lieu of maintenance allowance, and Tenant’s mortgage.

Amongst them there were not even two having the same rights in land. Only some tenure holders had superior rights and most of them had inferior rights. The rights of the fixed-ratetenant were permanent, transferable and non-ejectable, while non- occupancy tenant could be ejected at Zamindar’s pleasure. The devolution of tenancy was also not uniform. Succession to fixed-rate-tenant was governed by his personal law whereas in case of hereditary tenant the devolution to the holding was governed by the provisions contained in U.P. Tenancy Act, 1939. Not only the one class of tenant differed from other class, but the same class of tenant of Avadh had rights different from the tenant of Agra. The occupancy tenant of Avadh had unrestricted tights of sub-letting and on his death the holding devolved on his personal law heirs. But the occupancy tenant of Agra had only the restricted rights to sub-let, and on his death the tenancy devolved not only on his personal heirs but to heirs determined in accordance with the provisions of the U.P. Tenancy Act, 1939. It was considered necessary to substitute the bewildering variety of the existing land tenures by a simple and uniform scheme. Accordingly, the U.P. Zamindari Abolition and Land Reforms Act, with abolition of intermediaries and their castes also abolished all the old variety of land-tenures and substituted them into four, viz(i) (ii) (iii)

Bhumidhar Sirdar Assami

Post the U.P. Land Laws (Amendment) Act, 1977; all sirdars were covered by the bhumidhars and the bhumidars were further categorised into two, hence forming three main categories of tenure holders.

(i) (ii) (iii)

Bhumidhars with transferable rights Bhumidhars with non-transferable rights, and, Assami.

1. Bhumidhars with Transferable RightsAll the old tenants having transferable rights in their lands were, broadly speaking, branded as bhumidhars under the U.P.Z.A and L.R. Act, 1950. Such bhumidhars have now been called “bhumidhars with transferable rights”. With effect from 1997 all sirdards having right to become bhumidhar were also made “bhumidhars with transferable rights”. Bhumidhars with transferable rights is the highest type of tenureholder. His interest is permanent, heritable and transferable. He can be said as a peasant proprietor in all respects. Section 130 of U.P.Z.A and L.R. Act, provides four classes of such bhumidhars viz(a) Every person who became bhumidhar on the abolition of Zamindari. (b) Every person who became sirdar on the abolition of Zamindari and acquired bhumidhari rights by depositing ten times of land revenue. (c) Every person who was a sirdar immediately before the commencemenmt of U.P. Land (Amendment) Act, 1977 and had right to become bhumidhar by depositing ten times of the land revenue. (d) Every person who in any other manner acquires the right of “bhumidhar with transferable rights” under or in accordance with the provisions of this Act.

2. Bhumidhars with Non-Transferable RightsHe is second main tenure-holder under the present land system. His interest in the holding is permanent and heritable, but non-transferable. Section 132 and section 131A of the U.P.Z.A. and L.R. Act provide following persons as bhumidhar with nontransferable rights: (a) Every person admitted as a sirdar of any land under Section 195 before the date of commencement of the U.P Land Laws (Amendment) Act, 1977, or as a bhumidhar with non-transferable rights under the said section on or after the said date. (b) Every person whois or has been allotted any land under the provisions of the U.P. Bhoodan Yajna Act, 1952. (c) With effect from July 1, 1981 every person with whom surplus land is or has been settled u/s 26A or u/s 27 (3) of the U.P. Imposition of Ceiling on Land Holding Act, 1960. (d) Every person who is any other manner acquires the right of such a bhumidhar under or in accordance with the provisions of this Act.

3. AsamiAsami is a minor form of land tenure. It applies but to a small no. of persons who were non-occupancy tenants under the prior law. Right of an asami is heritable, but neither it is permanent it is permanent nor transferable. When a bhumidhar lets his holding in accordance with the provisions of the Act, the lessee is called an asami. His status is analogous to that of sub-tenant or sikhmi kashtkar. He is not holding possession on behalf of the Gaon Sabha or land-holder, but he has a vestige of title to the land-holder till formality prescribed by law is undertaken by the land-holder and he is evicted by the process of law. If he is left at the sweet mercy of the land- holder he can be thrown out just after he puts in all his labour and the crop is ready to harvest for harvesting. A tenant under a lease of land used for agricultural purpose would be entitled to a notice expiring with the end of the fasli year and may not be exposed to unfair treatment at the hands of the land-holder. The Act provides four classes of persons as asami: (a) Every person who, as a consequence of Zamindari abolition became an asami. (b) Every person who is admitted by the Land Managment Committee by a bhumidhar as a lessee of land. (c) Every person who is admitted by the Land Managment Committee or the person entitled, as a lessee of the land desrcribed in Section 132. (d) Every person who, in any other manner, acquires the rights of an asami under this Act or any other law.

4. Government lesseeThe “Government lessee” was introduced in the Act by U. P. Land Reform (Amendment) Act, 1958 and after Section 133, new Section 133 A was added and same was popularised as Government lessee. The “Government lessee” means to whom land has been let out by the State Government contrary to the existing laws of the Act, such person shall be entitled to have the possession of land in accordance to terms and conditions of the lease. It is clarified that the lessee cannot be ejected from the land according to the rules and laws of the Act except to this that lessee does an act in violation of the terms and conditions of lease.

RIGHTS OF TENURE-HOLDERS 1. Rights of Bhumidhar with transferable rights(i)

Right to use the land: Section 142 (1) provides that a Bhumidhar with transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is a bhumidhar and to use it for any purpose whatsoever. A bhumidhar may use his holding not only for purposes connect with agriculture, horticulture or animal husbandry but also for other purposes. A bhumindhar with transferable right has the right to use his land for any purposes. He may keep his land vacant so far it does not exceed 12.5 acres. But, there are certain restrictions imposed upon the bhumidhar with transferable rights which are as follows: 1. Where a bhumidhar has a land exceeding 12.5 acres without using it for 3 consecutive years for the purpose of agriculture, horticulture or animal husbandry etc. the collector may issue a show cause notice to such a bhumidhar. If the collector is not satisfied by the explanation given in response to the said notice as to why the land is so vacant, he may let the land to any person. Such person should be called an asami as if he has been admitted to the land by the tenure holder personally (Section 187 A). The Collector, instead of himself letting out the land, may direct the Land Management Committee to do so. 2. A bhumidhar with transferable rights has no right to appropriate minerals existing on his bhumidhari land. Mines and minerals under the Act have been vested in the state. Only the usufruct of land is vested in the tenure holder. Section 142 merely gives right to bhumindhars as tenure holders to the exclusive possession of all land in respect of which they are bhumidhars and to use it for any purpose whatsoever. It does not give right to bhumidhars to use up the land forming the subject matter of the bhumidhari. The ownership of the corpus remains with the state and bhumidhars are entitled to use it as tenure holders. The Supreme Court observed that the right of the former Zamindars to mines and minerals was extinguished by UPZA&LR Act 1950 and became vested in the state government. So long as the proprietary right of the land was vested in Zamindar he was entitled to mines and minerals. With the abolition of Zamindari that right was passed on not to the appellant but to the state government.

(ii)

Right to transfer the land: According to Section 152 (1) of the UPZA&LR Act the interest of a bhumidhar with transferable rights, subject to the certain conditions, shall be transferable. The right of transfer is available to all the bhumidhars with transferable rights whether be a male or a female, whether he is a Hindu or non-Hindu and whether the bhumidhari land is ancestral or self acquired.

Restrictions: A. According to Section 154 no bhumidhar shall have the right to transfer, by sale or gift any land as a result of which the purchaser or done becomes entitled to land which, together with land, if any, held by his family, will in aggregate exceed 12.5 acres in UP. Transfer made in contravention of this provision shall be void and the following consequence shall ensure: a. The land shall, with effect from the date of transfer be deemed to have vested in state government free from all encumbrances. b. The trees, crops and wells existing on the land on the date be deemed to have vested in the state government free from all encumbrances. c. The transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer, within such time as may be prescribed. B. .Transfer by member of SC - Section 157 A of the UPZA&LR Act 1950 provides the restrictions on the member of SC in transfer his holding. Accordingly, a bhumidhar or asami belonging to SC. With the previous approval of the collector the transfer in favour of a person of non-SC can be made. The collector shall not grant approval if the transferor holds the land less than 31/8 acres (1.265 hectares) in UP or if the land so held by the transferor is likely to be reduced after such transfer to less than 31/8 acres in UP. Transfer made in contravention of this provision is void, and the land, trees, crops etc. shall be vested in the state free from all encumbrances. Any SC person who has become bhumidhar with transferable right under Section 131 B can transfer the land by way of sale, gift mortgage or lease, with prior approval of Assistant Collector, in favour of a person other than belonging to SC prefeably to landless agricultural labourer, marginal farmer, small farmer and in case of nonavailability to any other person who is residing: a. In the village where land is situated or b. In the resident of panchayat area of the village or c. In case that resident of the above a and b are not available then in favour of the resident of the adjoining to the panchayat area. If ant SC person in accordance with the preference given above is not available then the land will be sold in favour of ST in order of preference. C. Transfer by member of ST - Section 157 B - A bhumidhar or asami belonging to ST is prohibited to transfer by way of sale, gift mortgage or lease any land to a person not belonging to such tribe. Transfer made in contravention of the provision will be void and the land, trees, crops etc. shall be vested in the state free from all encumbrances. D. A bhumidhar cannot transfer any land by way of sale or gift to a foreign national, and a foreign national cannot acquire any land by sale or gift without prior permission in writing by the state government. Transfer made in contravention will be void. E. In a consolidated area a bhumidhar with transferable rights cannot transfer by sale, gift or exchange any fragment. Fragment means land of less extend that 3.125 acres. Transfer made in contravention of the provision will be void and the land, trees, crops etc. shall be vested in the state free from all encumbrances.

• This section 168 A has been delated in 2004. Now transfer of holding of Land below 3.125 acres is possible. F. A bhumidhar with transferable rights cannot mortgage any land belonging to him where possession of the mortgaged land is transferred or is agreed to be transferred in future to the mortgage as a security for the money advanced. G. A bhumidhar cannot let his holding or part thereof, except: a. When he himself is a disabled person enumerated under Section 157 (1) or b. Where the Lessee is a recognized educational Institution for providing instructions in agriculture, horticulture or animal husbandry including pisiculture and poultry farming.

(iii)

Right to ExchangeSection 161 (1) provides that a bhumidhar, or gaon sabha or local authority (like municipality, town area or notified area). This exchamge can be made only with the prior approval of the Asst. Collector 1st class. On exchnage the tenure holders shall have the same rights in the land so received in exchange as they had in the land given in exchange. But the land revenue of the plots shall remain unchanged. The right of a bhumidhar with transferable rights to exchange his land is not unrestricted. he following restrictions are imposed on his right to exchange the land: 1. No bhumidhar can exchange the fragment except where the exchange is with the tenure holder who has a plot contiguous to the fragment. 2. Gaon sabha cannot exchange is land which is of public utility e.g. pond, khalihan etc. (will effect from 23 August 2001). If the restriction is violated the exchange shall be void, and both the lands with affect from the date of exchange, be deemed to have vested in the state government fre from all encumbrances. The trees, crops and wells existing on the date of transfer shall, with effect from the said date, be deemed to have vested in the state government free from all encumbrances.

(iv)

Right to bequest (Section 169) – A bhumidhar with tramsferable rights may, by will, bequeath his holding or any part thereof. Amongst the three tenure holders only the bhumidhar with transferable rights possesses this right. Bhumidhar with non-transferable rights and asami have no right to make will. But such non-transferable right with bhumidhar, who had been granted land and is in the Act, will be deemed bhumidhar with transferable rights of bhumidhar and can execute a will. In case of will, restrictions contained under Section 154 are not applicable, that is to say, the legatee may be a person who is already in possession of more than 12.5 acres of land. Distinction between male and female and between females obtaining land in succession from male and otherwise have now been wiped off by the UP Land Laws (Amendment) Act, 1975.

Restrictions:A bhumidhar with transferable rights belonging to SC cannot, without the previous approval of the collector, make a will in favour of nonSC. A bhumidhar with transferable rights belonging to SC cannot make a will in favour of a non-ST. Any contravention of the provisions of Section 169 will make the will as void and ineffective.

(v)

Right to get declarationSection 143 (1) provides where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture of animal husbandry which includes pisiculture and poultry farming, the Asst. Collector in-charge of the sub-division may, suo motu or on application, may a declaration to that effect. Where the proceedings have been started by the Asst. Collector in-charge of the subdivision on his own motion, he shall issue notice to the bhumidhar concerned, or he shall give him an opportunity of being heard before making such declaration. When the declaration to the effect is granted: a. The succession to the land shall be devolved by the personal law to which he is subject; and b. The provisions of Chapter VIII of the Act shall cease to apply with respect such land that is, he can transfer even to such person who has already more than 12.5 acres of land.

(vi)

Right to sue for division: Section 176 of the UPZA&LR Act provides that a bhumidhar may sue for division of his holding. TO every such suit the gaon sabha concerned shall be made a party. Section 177 says that one suit may be instituted for the division of more than one holding where all the parties of the suit other than gaon sabha are jointly interested in each of the holdings. Provided that where the holdings are situate in the jurisdiction of different gaon sabha, all such sabhas shall be made parties to the suit. Section 178 provides for the mode of division of a holding. Accordingly, whenever in a suit for division a Court finds that the aggregate area of the holding or holdings to be divided does not exceed three and one eight acres, the court shall instead of proceeding to divided the holding or holdings direct the sale of same and distribution of proceeds thereof, in accordance with such principles as may be be prescribed. The sale proceeds shall be distributed amonsgt the tenure holders in accordance with their respective shares. Where a co-tenure holder has let out only a share in any holding under sub-section (2) of Section 157 or duly acquired bhumidhari rights under Section 134 (before the Amendment of 1977) with respect only to a share aforesaid, but in respect of the remainder of the holding, the provisions of subsection (1), if applicable, shall be followed.

Where a Court has, under section 178 ordered a sale of the holding or holdings, it shall order a valuation of the same to be made in such manner as may be prescribed and shall offer to sell the same at the price so ascertained to the co-tenure holders in such order of preference as may be prescribed. The forum of the suit shall be the Revenue Court of Asst. Collector 1st class. (vii)

Right of non-ejectment: According to Section 199 "no bhumidhar shall be liable to ejectment from his holding except as provided in this Act". That is to saya bhumidhar cannot be ejected from his holding on any ground. Exception is provided in Section 212. Accordingly, any person including bhumidhar shall be liable notwithstanding anything contained in Section 199, on the suit of gaon sabha to ejectment from the land: a. Where he was admitted a tenure holder or grove holder on a land of public utility like common pasture land, pathway, tank, etc., or where he was a zamindar and cultivated the land himself. b. Where he was admitted as such on or after August 8, 1946 and before July 1, 1952; and c. Where the suit was filed within 10 years from the date of vesting. (This provision has become obsolete since 10 years have already elapsed).

2. Right of Bhumidhar with non-transferable rights(i)

Right to use the land: This right is provided under Section 142 (2) of the Act. Accordingly, a bhumidhar with non-transferable rights shall have the right to exclusive possession of all land of which he is such bhumidhar and to use such land for any purpose connected with agriculture, horticulture or animal husbandry which includes pisiculture, poultry and social forestry. Purpose connected with agriculture etc. will depend upon the facts and circumstances of each case. But if, a. Section 186: A bhumidhar with non-transferable rights does not use his holding for the purpose as mentioned under section 142 (2) (that is for a purpose connected with agriculture, horticulture, social forestry and animal husbandry including pisiculture and poultry farming) for two consecutive years, the land may be declared as abandoned land by the tahsildar. b. Section 157: a bhumidhar with non-transferable rights being a minor, slunatic or idiot has not used his holding for a purpose connected with agriculture; horticulture etc. for two consecutive agricultural years, the LMC may admit on behalf of such bhumidhar any person as asami to the land. c. If such a bhumidhar (disabled or not) has not used his holding for three consecutive years immediately preceding for a purpose connected with

agriculture etc. and the area of land is more than 12.5 acres, the collector may let the land to any person as an asami. (ii)

Right to transfer the land: Section 152 (2) says that the interest of a bhumidhar with non-transferable rights is not transgerable, but it is heritable and permanent. Tje UPZA&LR (Amendment) Act 1995 added section 131 B. The consequence of the addition is that every person who was a bhumidhar with non-transferable rights immediately before the commencement of the UPZA&LR (Amendment) Act 1995 and had been such bhumidhar for a period of ten years or more shall become a bhumidhar with transferable rights on such commencement. The person, who have been allotted later on and has not completed the period of 10 years, shall be bhumidhar after completion of the required period. After acquiring the bhumidhar right in land, such person have right to alienate the land by way of sale to any person but after transfer of land, the transferor shall become in future ineligible for leases of the land vested in gram sabha or land declared as surplus under UP imposition of Ceiling on Land Holdings Act, 1960. Exceptions: There are certain circumstances in which a bhumidhar with non-transferable rights may make transfer. These circumstances are as follows: a. He may mortgage without possession his interest in the holding as a security for a loan. b. He may transfer his holding by way of gift to a recognized educational institution for a purpose mentioned in Section 152 (3) and 156 (1) (b). c. He can make a lease of his land to anybody if he himself comes within the category of disabled person. If a bhumidhar with non-transferable rights makes any transfer in contravention of the provision of the Act, the transfer shall be void.

(iii)

Right to surrender : A bhumidhar with non-transferable rights and an asami enjoy this right to surrender his holding. Section 183 provides that a bhumidhar with nontransferable rights may surrender his holding or any part thereof by making an application in writing to the tahsildar and giving a notice in writing to the LMC intimating his intention to do so and by giving up possession thereof whether such holding is or is not let. Provided that no surrender of the holding or any part thereof shall be made if the same has been mortgaged under subsection (2) of section 153 and the mortgage has not been fully redeemed. So far as the right of a bhumidhar with transferable rights with respect to exchange, to sue for division is concerned, it is the same as in case of a bhumidhar with transferable rights. And in respect of the right to bequrest it is also the same if under section 131 B, the non-transferable right of bhumidhar has completed 10 years.

3. Rights of an Asami(i)

Right to use the land: According to Section 146 an asami shall, subject to the provision of this Act, have the right to exclusive possession of all land comprised in his holding and to use husbandry which includes pisiculture and poultry farming. Provided that any land which is declared by the state government by notification in the Gazette to be intended or set apart for taungya plantation shall not be used by the asami thereof except for purpose of growing agricultural crops. The unauthorized use of the land will follow the following consequences: a. An asami can be ejected for using the land for unauthorized purposes i.e., other than a purpose connected with agriculture, horticulture etc. He will also be liable to pay damages for such unauthorized use. b. If an asami does not use the land for authorized, the land may be declared by the tahsildar as abandoned land.

(ii)

Right to let the land: Section 156 provides two conditions in which an asami can let the land in his holding: a. If he comes under the category of disabled persons of section 157; and b. To a recognized educational institution for a purpose connected with instructions in agriculture, horticulture or animal husbandry.

(iii)

Right to surrender: The right of surrender is available under the Act to the bhumidhar with nontransferable rights and to an asami. Section 184 provides that an asami may surrender the whole of his holding but not any part thereof by giving a notice in writing top the LMC or the land holder, as the case may be, intimating his intention to do so and by giving up possession thereof. 1. According to Section 193 on ejectment or on extinction of the interest an asami ordinarily has rights to remove the standing crops and any construction existing on the holding. Section 203 provides the effect of ejectment. 2. According to Section 204 when an asami is no more entitled to hold the land or when the period of his lease has expired, the landholder must file a suit to eject the asami. If such a suit is not instituted or a decree obtained in such suit is not executed within the period of limitation, the asami shall become a bhumidhar with non-transferable rights on the expiry of that period. 3. Rights regarding rent is mentioned in UPZA&LR Act under Sections 214, 215, 218, 219, 200, 226 and 226.