Assam (Temporary Settled Areas) Act, 1971- Important Provisions- Part 2
Updated: Feb 14, 2022
The second part of the Assam (Temporary Settled Areas) Act, 1971 shall deal with the Acquisition of Ownership & Intermediary rights, Grounds & Procedure of Ejectment of Tenants along with the Protection given to the Tenants from wrongful or illegal eviction by the landlords.
In the previous part, we have already covered the Importance & Reasons for passing the Act, and the different Types of Tenants recognized under the Act along with their rights and obligation.
ACQUISITION OF INTERMEDIARY & OWNERSHIP RIGHTS:
(a) Acquisition of Ownership Rights on Government initiative for Tenants:
The State Government may by notification declare that the rights of any landlord in any land held and personally cultivated by an occupancy tenant shall stand transferred to the said tenant and vest in him free from all encumbrances created by the landlord.
Such declaration may only be made in case of land under personal cultivation of the occupancy tenant, the non-occupancy tenant being excluded from this benefit under Section 22(1).
(b) Acquisition of Intermediary and Ownership rights on Government initiative for under tenant:
But the acquisition of ownership rights by occupancy tenants alone will not lead to the abolition of landlordism. Non Occupancy tenants will after 3 years become occupancy tenants and then he will also be entitled to the acquisition of ownership rights.
So, unless those under-tenants, who are continuing since before the commencement of the act, are also enabled to acquire the rights of the intermediary tenants who are landlords, landlordism will continue at the tenant’s level.
Hence, the act also provides for the acquisition of intermediary tenants by the under-tenants. This is called Acquisition of Intermediary Rights.
The same under tenant may further acquire the rights of the owner landlord (proprietor, landholder or settlement holder) under whom the intermediary tenant had held and thus becomes full owner.
The Act, therefore, provides for acquisition of, both Intermediary Rights of ‘tenant landlord’ and ownership rights of ‘owner landlord’.
(c) Quantum of Compensation:
An amount equal to 50 times the full revenue rate shall be payable for all the rights in the land so acquired under Section 24. This amount will wholly go to the owner landlord if there is no under tenant and rights of the land is vested in the occupancy tenant.
(d) Procedure of Determining Compensation:
Before such determination, the Deputy Commissioner shall give notice to the landlord and other persons having an interest in the land acquired and fix a copy of the notice in his office. After that, the Deputy Commissioner shall make an enquiry, hear objections and decide the compensation, with apportions if necessary stated under Section 26(1).
(e) Procedure of Payment of Compensation:
The Compensation decided will be paid initially by the state government because it was at the instance of the state government that the land is acquired.
The state government will place certain funds to the Deputy Commissioner and out of it, the Deputy Commissioner shall pay the specified amount to the person entitled, within 3 months of the date of his determination under Section 26 (2) (a).
If there is any dispute, as to the person entitled to receive it, the Deputy Commissioner will keep the funds in the district court and refer the parties to the civil court and make payments as per their decision stated under Section 26 (5).
But as the occupancy tenant or the under-tenant is the actual beneficiary, the total compensation will be ultimately realized from them in 5 equal annual instalments, the first of which, will be at the end of 3 months from the date of its determination under Section 26 (3).
If any instalment is not paid within, 30 days of it becoming due, the Deputy Commissioner will recover it as an arrear of land revenue.
(f) Issue of Ownership Certificate:
But to get the ownership certificate, he is not required to wait till the completion of payment of all the instalments, for as soon as the occupancy tenants or under tenants pay the first instalment, the Deputy Commissioner will have to issue an ownership certificate to him and also correct the revenue records by deleting the landlord’s name stated under Section 26(4) (a).
ACQUISITION OF OWNERSHIP & INTERMEDIARY RIGHT ON THE INITIATIVE OF TENANT & UNDER TENANT:
Here, the initiative will have to come from the tenant or the undertenant. Any occupancy tenant personally cultivating the land of his tenancy, desirous of acquiring the ‘Ownership Rights’ of his landlord (.i.e. proprietor, landholder or settlement holder), may apply to the Deputy Commissioner in writing under Section 23(1).
Similarly, any under tenant cultivating the land of his under tenancy, desirous of acquiring the ‘intermediary rights’ of his ‘tenant landlord’ (occupancy or non-occupancy tenant, under whom he holds land) and the ownership rights of the owner landholder (proprietor, landholder/lord or settlement holder), may (also apply to the Deputy Commissioner) under Section 23(ii).
(a) Procedure for determining compensation:
The Deputy Commissioner will then give notice to the landlord and other persons having an interest in the land, and also fix a copy of such notice in a conspicuous part of his office. He shall then make an enquiry, hear any obligations, determine the amount of compensation and make apportionment if necessary under Section 26 (1).
The amount of compensation shall be 50 times the full revenue rate shall be payable for all the rights in the land, and the whole amount shall be paid to the owner landlord where the rights are vested in the occupancy tenant, but it shall be apportioned between the owner landlord and the tenant-landlord when the rights are vested in the under-tenant, 75% to the owner landlord and 25% to the tenant-landlord under Sections 24 & 25.
(b) Procedure for payment of compensation and issue of ownership certificate:
After determining the compensation, the Deputy Commissioner will ask the occupancy tenant or the under-tenant, as the case may be, to deposit the amount within 30days from the date of such determination under Section 26(2) (b).
After the full compensation determined has been paid, the occupancy tenant shall be declared to have acquired ‘ownership rights’ or the under-tenant to have acquired both ‘intermediary and ownership’ rights, free from all encumbrances under Section 23.
The Deputy Commissioner shall also issue to the tenant or the under-tenant as the case may be, an ownership certificate and correct the revenue records by deleting the landlord's name under Section 26 (5).
GROUNDS AND PROCEDURE OF EJECTMENT OF TENANTS UNDER THE ACT :
An Occupancy Tenant may be ejected by the landlord only on the ground, that he has used the land in a manner that renders it unfit for tenancy. But the landlord cannot carry out the ejectment himself.
The right of a landlord in respect of an occupancy tenant is limited and is governed by Section 51(1) of the act. This Section provides that a non-occupancy tenant shall not be ejected by his landlord except in execution of a decree passed by on .i.e. tenant rendered the land unfit for any further tenancy.
Even if notice was not served, it will not take away the landlords right to eject the tenant under Section 51. [Haridwar Upadhyay v. Jitendra Lal Roy, (1991) 2, GLR (NOC) 4]
GROUNDS FOR EJECTMENT OF A TENANT OTHER THAN OCCUPANCY TENANT:
A Tenant other than an Occupancy tenant may be ejected on anyone or more of the following grounds:-
That he has used the land that renders it unfit for tenancy;
That he has broken a condition consistent with the provisions of the act, on the breach of which, he is liable to be ejected
That he has failed to pay the arrear of rent;
That the land is bona fide, required by the landlord for his cultivation, subject to the following limitations:
(i) No ejectment suit on this ground shall be entertained before 12 months have elapsed from the date of creation of the tenancy or after 15 months have elapsed from the date;
(ii) If the tenant has got no other land of nowhere or has less than 10 bighas of land then he shall be not ejected unless he has been left with so much area as will make his total holding area equal to 10 bighas;
(iii) If the landlord does not cultivate the land personally within one year of the date of ejectment, then the tenant shall be restored to possession.
PROCEDURE FOR EJECTMENT under Section 54 & 54-A:
The Act of 1971 also provides certain procedures for the ejectment of tenants and all measures taken beside these, to eject the tenant shall be considered illegal and shall void the ejectment.
No tenant (whether an occupancy tenant or not) can be ejected except in execution of an ejectment decree passed by a competent, as per Code of Civil Procedure, 1908 under Section 54(1). If he is ejected otherwise, then he may, within 90 days, apply to the Revenue Officer for restoration of possession.
The Revenue Officer after sending a notice to the ejector, and making the necessary enquiry, may pass an order for restoration. If the ejector does not do so, within 7days, the Revenue Officer may himself take possession and deliver possession, to an ejected person under new Section 54-A.
If a suit for ejectment, on the ground of misuse of the land or breach of the condition of the contract is intended to be instituted by a landlord, he must serve a notice on the tenant specifying the particular misuse of land, or the breach of the condition complained of.
Where the misuse or breach of trust is capable of remedy, he must require the tenant, by the above-mentioned notice, to remedy the same or to pay reasonable compensation for the misuse of the breach.
If the tenant fails to comply with the requisition within one month, of the notice, the court will entertain the suit for ejectment under Section 54(2).
A second chance for remedying the misuse or breach by paying reasonable compensation fixed by it is to be given by the trying court also if is finds daring the trail that it is remediable, but if the tenant still fails to comply with the court’s direction, within a specified date, the court may pass the ejectment decree under Section 54(3).
If the landlord intends to institute an ejectment suit on the ground that the tenant (other than an occupancy tenant) fails to pay arrear rent, he must first obtain a decree from a competent court; otherwise the court shall not entertain the ejectment under Section 54(3).
If a landlord intends to institute an ejectment suit against a tenant, other than an occupancy tenant, on the ground that the landlord wants the land for personal cultivation, he shall first give the tenant a 3 months notice ending with the date of the expiration of the lease stated under Section 54(3).
REMEDIES for the TENANTS:
The Act also provides certain remedies for the tenants, if and when they are wrongfully ejected or ousted from their lands.
RIGHTS OF EJECTED (PERSONS) TENANTS, TO COST OF IMPROVEMENTS, CROPS, DWELLING HOUSE and the likes:
1. If a tenant is ejected from his holding, he must be paid, compensation for improvement lawfully made by him, and the court’s order for ejectment shall be conditional on the payment of compensation.
In estimating the compensation, the following should be taken into account-
The amount by which the value or the procedure of the holding has increased due to improvement.
The condition and probable duration of the effect of improvement,
Labor and Capital investment in the improvement
Reduction or remission of rent or other advantages given by the landlord to the tenant in consideration of the improvement,
Length of time during which the tenant has benefited from an unenhanced rent, in case of reclamation or irrigation under Section 52.
2. Where an ejected tenant has sown crops before the date of ejectment, the landlord may allow him to stay till the harvesting of crops, or pay the tenant, the value of the cross fixed by the court, and get him out.
If the landlord allows him to stay, the tenant will have to pay to the landlord such rent as the court deems reasonable, for the period of his stay stated under Section 53 (a).
3. Where the ejected tenant, has before the date of ejectment, prepared the land for sowing but has not sown any crops, the landlord is required to pay the tenant, the value as estimated by the court, of the labour and capital spent therein, plus interest on that value under Section 53 (b).
4. The landlord shall pay an ejected occupancy tenant, compensation for trees standing on the land, which he is entitled to out and appropriate under Section 53(c).
5. A tenant shall not be ejected from his dwelling site unless he has first been given an option to purchase the dwelling site and also the dwelling house (in case it was constructed at the landlord’s cost) at the prevailing market value.
In case of dispute, as to the value, the court shall determine it after a necessary enquiry under Section 53(d).
RESTORATION OF POSSESSION TO TENANT OR UNDER TENANT EJECTED OR WHOSE CULTIVATION IS PREVENTED under Section 54-A:
A tenant is not to be ejected from his holding except in execution of a decree passed by a competent civil court for ejectment. A tenant cannot also be prevented from the cultivation of the land by his landlord.
Under Section 54-A (which is inserted as a new Section by an Amendment Act of 1971) has provided a remedy by way of restoration of possession of holding, when the tenant or under tenant has been-
(a) Dispossessed from his holding, or
(b) Prevented from the cultivation of the holding/land
This provision exists in addition to other provisions of law relating to a restoration of possession.
PROCEDURE FOR RESTORATION OF POSSESSION under SECTION 54-A-
(a) Tenant or Under-tenant has to apply to the Revenue Officer having jurisdiction for restoration of possession.
(b) Such application is to be made within 90 days of ejectment or termination of cultivation.
(c) The Revenue Officer after necessary enquiry, and after issuing notice to the landlord or the persons preventing the cultivation of the land, passes the order for restoration of possession to the tenant or undertenant.
(d) If the possession is not restored within 7 days of the order becoming final, then the Revenue Officer on the application of the tenant or undertenant will take the possession of the holding and deliver it to such under tenant.
In its entirety, the Assam (Temporary Settled Areas) Act, 1971 was extremely important legislation, passed to secure the rights of the tenants, mainly belonging to the agricultural sector.