Land Tribunals in Land Reform Legislation

Transcription

1 Land Tribunals in Land Reform Legislation IN this paper an attempt is made at a comparative study of the Bombay Tenancy and Agricultural Lands Act and the Kerala Agrarian Relations Bill. The Bombay Act is widely accepted as the most progressive enactment In the field of land reform legislation in the country. The Kerala Bill in some respects improves on the Bombay Act, in that it attempts to avoid the defects of the latter. This paper assumes that the acceptance of the principle of 'Land to the Tiller, the land policy in the Plans, and the Directive Principles of State Policy stated in the Constitution are closed questions and does not "go into the validity of these. Nor does it go into the economic and social consequences of land reform. It goes only into the administrative implications of such legislation and the various rights and duties of the landlord and the tenant consequent on the legislation coming into force. More particularly it makes a study of the powers and functions of Land Tribunals and how far they are suited to put. such enactments into force. Both the Bombay Tenancy and Agricultural Lands Act and the Kerala Agrarian Relations Bill provide for such bodies which are the common ground for a comparative study. Courts or Tribunals? The problem of land reform administration finally boils down to that of setting up efficient land tribunals, Prejudice against such bodies is common because laymen without legal training preside over them and use the power given to them, in what appears to some, in an arbitrary manner. Failure to hear both sides, private consultations, policy outside statute, facts determined independently of policy are some of the most common complaints made against administrative tribunals. Very often these bodies are empowered to make final decisions all on their own, within their sphere. This has the effect of restricting the jurisdiction of Civil Courts in respect of these matters. Absence of arrangements to review decisions, the concentration of power in these bodies and the absence of Kerala and Bombay G A Rao appellate authorities are other sources of anxiety. The law suit method of adjudication in a Civil Court which is the other alternative is not without defects either. Individuals are inclined to put up with small injustices rather than take a stand against the Government. The expense involved in getting justice through Civil Courts may compel a man without resources to put up with injustice. The landlords on the other hand, with their large financial resources and permanent connections with clever lawyers, have had the tradition of exploiting the less fortunate tenants and leaving little chance for the tenants to get their grievances redressed, or of slowing down this process considerably. In view of all this, instead of condemning the system of administrative tribunals, it would be wise to see whether it would be possible, by means of checks and balances, to derive the best from such bodies without having their disadvantages This would involve an adjustment between the authority of the State and the rights of the people. The administrative tribunal should therefore not only be efficient in the exercise of its powers but it should also satisfy the general body of citizens by making a compromise between the public interests it protects and the private interests it disturbs. It has to be proved that the public servant who rides rough shod over individual objections does not lose sight of the public wellbeing. A safe-guard against the misuse of powers could take the shape of giving reasonable appellate powers within well defined limits to prevent gross miscarriage of justice. The danger of having untrained officers presiding over the tribunals can be avoided by devising a reliable method of recruiting personnel. The Powers of the Tribunals The topic of land tribunals is vital to this discussion because both the Bombay and Kerala enactments depend on them for their efficiency for the proper administration envisaged therein, the purpose being to establish what amount of concentra 805 tion of power is necessary to enable them to play their assigned role When the Kerala Agrarian Relations Bill comes into force the land tribunal will have the following powers: I. To determine the purchase price of the land. II. To determine the value of the site of the dwelling house, III. To decide disputes arising out of the tenants purchase of land. IV. Any other duty which may be prescribed by the Government. In the original Bill the Land Tribunal was to consist of only one member, but an amendment has been introduced during discussion of the Bill in the State Assembly which seeks to have three members to constitute the Tribunal, one of whom is to be nominated by the Government from among advocates with not less than three years standing at the bar or from among persons who had been or are judicial or revenue officers. This officer is to preside over the Tribunal. The other two members are to be elected from among the members of the local authorities of the area for which the Tribunal has been constituted. The functions of the Land Tribunal could be exercised by all the three members. If there is any difference of opinion when all the three members are present, the decision of the majority is to prevail. Where however in the absence of one member there is a difference of opinion between the other two. the member who is absent will at the next meeting decide the issue on his own. The decisions of the Land Tribunals are subject to appeal to the District Judge who is to act as persona designata and his decision in the matter is final. Land Board The Bill also provides for a Land Board for the whole of the State, which is to consist of a member of the Board of Revenue and two officers of the Government. It has full powers of a Civil Court as specified in the Code of Civil Procedure in matters concerning the summoning of witnesses on oath, requiring the

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3 THE ECONOMIC WEEKLY June production of documents, receiving evidence on affidavits, issuing commissions for the examination of witnesses and any other matter that may be prescribed. (The Civil Courts have also summary jurisdiction over rent suits initiated by the land lords where the amount involved does not exceed Rs 200/-, The decision of the Munsif, who is to handle the work, is final.) In Bombay The Bombay Act provides for similar Land Tribunals with the same powers consisting of three or more members one of whom must be a person holding a judicial post not lower in status to that of a Civil judge under the Bombay Civil Courts' Act, or any person who is qualified to practice in the Courts of the Bombay State. The Mamlatdar works on the same level as the Land Tribunals, This is an office unknown to the Kerala Bill. Immediately above him, there is the Collector who has the powers to withdraw proceedings from one Mamalatdar and allocate them to another. Where the landlord possesses lands in the jurisdiction of many Mamlatdars in the same district, the dispute will have to be decided by the Collector. In cases where the other pieces of land belonging to the same landlord are in different districts, the dispute will have to be dealt with by the Divisional Officer. If the other plots of land belonging to the same landlord are situated in different divisions, the appeal lies at the State Government, The final appellate authority in the Bombay system is the Bombay Revenue Tribunal, which is to function like a Civil Court. The most striking difference between the two sets of tribunals in the enactments is the difference in the appellate powers given to the higher authorities. In Bombay there is a hierarchy of appellate authorities starting from the Mamalntdar and the Land Tribunal at the lowest level and going up to the Collector, the Divisional Officer and tbe State Revenue Tribunal higher nn. But at no stage do the Civil Courts come into the picture. All appellate authorities are Part of the Revenue Department. The Kerala Bill, be cause of its limited appellate authorities, is better suited and the Land Tribunals of that system will be able to come to correct decisions and will result in better implementation of the land legislation. Fixity of Tenure To safeguard the interests of tenants the Kerala Bill provides for the payment of solatium by the landlord to the tenant from whom the landholding is resumed. This amount has been fixed at an amount equal to one year's rent where the tenant is not entitled to compensation for the improvements made. There is no such provision made in the Bombay Act. A special clause for the tenants under small-holders in the Malabar area, as suggested by the Select Committee, enables a tenant, if he chooses, to purchase the entire land comprising the holding by paying a sum equal to 12 times the rent to the smallholders. The Kerala Bill fixes definite limits to the rights of resumption. The exercise of this right should not result in reducing the land in possession of the tenant to less than one acre of double crop land or its equivalent. If the land is to be resumed for building purposes, the landlord can resume only 20 cents if the tenant from whom it is resumed has less than one acre of land. ' In Bombay, prior to the Bombay Tenancy and Agricultural Lands Act 1957, the landlord could resume land for personal cultivation without any restriction. This had the effect of vitiating the aims with which the land reform legislation was undertaken. The amending Act of 1957 ensures that while the landlord has a right to resume lands for personal cultivation, a limit to this right is fixed at 48 acres of dry land or 24 acres of seasonally irrigated land and 12 acres of perenially irrigated land. 807 Fair Rent The Kerala Bill simplifies the process of fixing rent by laying down a schedule of rates, This will help the Tribunals to come to quick and correct decisions. By an amendment accepted during the discussion of the Bill in the State Assembly, it has been provided that the schedule of fair rents fixed by the Government should receive legislative sanction before it is applied. This is a good legislative check on the misuse of power by the executive. The Bombay Act is vague on this point. It merely prescribes the maximum and the minimum limits within which fair rent should vary and states that the rent should ndt be more than five times the assessment payable in respect of that land or at the rate of twenty rupees an acre whichever is less and shall not in any case be leas than twice the assessment. The tribunal has to go into the merits of each case and fix the fair rent. Small Holders To prevent the provisions of the Kerala Bill going against the interests of small-holders, a special provision has been made. The Bill defines a small-holder as one who neither as owner nor as permanent tenant holds a total area of land exceeding five acres in extent Of double crop land, leased or rented out in respect of such holding. Any small-holder can apply to the Land Tribunal for the determination of the extent of land that may be purchased by the tenant from the smallholder and the compensation that will have to be paid for it. In making these decisions, the Land

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5 Tribunal will have to take into consideration the relative economic position of the parties, the absence of other means of livelihood of the small-holder, the labour and capital spent by each party to the dispute for Improvements on the land and then come to an equitable settlement. In cases where the tenant of the small holder has as owner or as permanent tenant more land than the small land holder the land tribunal has the power to allow the small holder to resume the entire holding. By an amendment introduced when the Bill was being discussed in the State Assembly, the tenant is required to surrender one half of his holding to the smallholder and retain the other half for himself, where there is an agreement between them to that effect. The Select Committee has suggested that the right of the permanent tenants to resume land held by them should be extended to all tenants except those holding under small-holders and landlords who are entitled to resume land for selfcultivation. In addition, the Committee has suggested that 25 per cent of the excess land must be given to small holders who arenot entitled to receive any land, and the remaining 25 per cent to cultivators who do not possess any land or whose holding is less than 5 acres of double crop land. The purchase price of such land should be 55 per cent of the market value payable in 16 equal instalments. Tenants under small holders are either to surrender to the holder one half of the land cultivated by them or continue as tenant in respect of the entire holding. The Bombay Act makes no provision to safeguard the interests of small-holders. Purchase Price The Kerala Bill gives in detail the method by which the fair price is to be Axed by the tribunal on the basis of fair rents stated in Schedule I, In the original Bill, the fair price was to be 16 times the rent calculated in the schedule, This has been brought down by the Select Committee to 12 times the rent. Where rent has not been fixed according to this suggestion, rent fixed by custom and usage, agreement and decree of court or whichever is less, is to bethe deciding factor. As opposed to this, the Bombay Act prescribes the limits between which the fair price should vary. These limits are fixed at 20 times to 200 times the assessment plus the value of embankments and permanent structures. Being left with a less definite test for fixing fair price, the Bombay Tribunals will have to spend more time fixing the purchase price. Compensation In the Kerala Agrarian Relations Bill the Land Board is to fix the compensation when the land is subject to encumbrance. This Board will have to allocate land between the two portions in proportion to the value of theencumbrances to the two portions of the property these being the land acquired and the rest. When fixing the compensation of land which has an encumbrance, the factors to be taken into consideration are the value of the land after the provision of the improvement, the condition of the amenity when the land is surrendered, the capital and labour involved in providing the facility and the reduction of rent allowed by the landlord in view of the improvement. Generally the compensation is to be fixed by the compensation officer. He has also the duty of preparing the compensation rolls. The Select Committee on the Kerala Bill has linked up the compensation for lands in excess of the ceiling area fixed, with the market value. It has recommended that payment of 60 per cent of the first Rs 15,000 of the total market value and a progressive reduction of 5 per cent of every succeeding unit of Rs 15,000of the market value. In the Bombay Act, the duty of serving notices and copies of the compensation rolls has been aliocated to the Mamlatdar who is already burdened with other duties. Appointment of special officers for this purpose, as envisaged in the Kerala Bill, is better. Ceilings Originally the Kerala BilI had a Peasants' Day on the lines of the Tillers' Day in the Bombay Act, But now this has been given up. On a specified day when the Bill is to come into force all title, right, and interest of the landowner and the intermediaries over lands held by protected tenants shall vest in Government. Such intermediary and cultivating tenant of the lands will be entitled to assignment of right, title and interest on land vested in 809 June 20, 1959 Government on their application to Government, This system will give rise to new administrative problems, consequent on the need to redistribute land. The danger of landlords evicting tenants when the Bill is on the legislative anvil has been prevented in the Kerala Bill by the Government passing an Ordinance to prevent such alienations. This was followed by the Stay of Eviction Act which had the effect -of protecting the interests of tenants who had cultivated the land during the previous season. The ceilings fixed by the Kerala Bill have undergone a minor change because of a change in the definition of the family. Now the family has been defined as "husband and wife and their minor children" instead of "husband, wife and unmarried sons and daughters'' as defined in theoriginal Bill. The ceiling area is fixed in relation to an adult unmarried person. Thus a family consisting of a husband, wife and minor children numbering more than five will get 15 acres of land or its equivalent and in the case of an adult unmarried person, 7½acres of double crop land or its equivalent. In the Kerala Bill ceilings apply to all landlords who hold land in excess of the ceiling fixed. As opposed to this, in the Bombay Act the restriction applies only to land under his personal cultivation. The provisions of the Act come into force on the Tillers' Day. In Bombay landlords forced the tenants to sign agreements to share crops with the landlords. This resulted in the very aims of the Act being frustrated. This irregularity has been remedied by the Amendment Act by which such agreements entered into after the 18th December 1957 were declared void. Similarly all transfers other than for valuable consideration by persons having more than the ceiling area after the 11th of April 1957 were declared void. The purpose of these provisions were to maintain the status quo as in April 1957, In Bombay transfers made after the appointed day, i e, 15th June 1955 and before the commencement of the Amendment were declared invalid. This measure had the same intention as the Stay of Eviction Act 1957 in Kerala, viz, to prevent voluntary transfers with a view to evade the land reform

6 June 20, 1959 legislation. But the Ordinance followed by an Act, as was done in Kerala, is better suited for the purpose. Conclusions The Kerala Agrarian Relations Bill promises to be a pioneer in land reform legislation. The more important points on which it has improved on the Bombay Tenancy and Agricultural Lands Act can be summarised as follows : I. Although both enactments have provided for Land Tribunals, the concentration of power in them by providing for limited appellate powers is an improvement on the Bombay system which has a hierarchy of appellate authorities. In Kerala, the Tribunals are independent of the Revenue Department. The set up in Kerala is better suited for the purpose since it can come to quick and correct decisions. II. The Kerala Bill provides for the payment of solatium to the tenant by the landlord. The Bombay Act has no such provision. III. The Kerala Bill simplifies the process of fixing fair rents by laying down a schedule of rates. The Bombay Act is vague, since It sets down only the maximum and the minimum limits within which fair rents should vary. IV. The Kerala Bill has provision to safeguard the interests of smallholders. The Bombay Act has none. V. The Kerala Bill gives in detail how the purchase is to be fixed. The Bombay Act only indicates the upper and the lower limits. VI. The Kerala Bill has provided for the appointment of Special Compensation Officers. They would have to serve notices and prepare compensation rolls. In the Bombay Act. this duty is cast on Mamlatdars who are already burdened with other duties. VII. The Kerala Bill vests the right, title and interest of the landowner and the intermediaries over lands held by protected tenants in Government which is to reassign the land. In the Bombay Act, there is a day called the Tillers Day when permanent tenants are deemed to own land which they can hold upto the ceiling limits. THE ECONOMIC WEEKLY Indian Mangoes in U K THE popularity of the mango is believed to be increasing in Britain, but the supply is still very limited. In London, mangoas are sold by a few specialised fruit shops under the classification 'exotic fruits' along with litchis, avocadoes, Cape gooseberries, and kumquats. The price is roughly a shilling for every anna they cost in India. Officials of Air-India International, who are freighting about 50 dozen baskets to London by each daily flight, say that most of the fruit was consigned to British residents with connexions in India or sent to Indian students in the United Kingdom by their families at home London fruiterers would like to expand the market but, because of the highly perishable nature of the fruit, there is too much risk involved. Britain imported small quantities of mangoes from Africa and Central America, but the Indian variety is definitely the most popular. 810