Updated: Feb 14, 2022
As we step further into the Modern History of the Land Rights in Assam, we venture into the legislation that was passed post-independence of India.
The Assam(Temporary Settled Areas) Act, 1971 was passed to provide certain undeniable and concrete rights for the people of Assam. Before the Act, the land rights of the people were highly complex and very much varied.
There was no protection from the illegal or unjustified ejectment of the tenants by the landlord and the rights of the tenants were severely violated in many instances.
The Act was also enacted to do away with the Medieval land rights, such as of the Raiyats. It also instilled a mechanism for the protection of such tenants and barred the concept of under-tenancy to be illegal under the Act.
IMPORTANT CHANGES BROUGHT BY THE ACT IN THE FIELD OF AGRARIAN REFORMS:
The Assam (Temporary Settled Areas) Tenancy Act, 1971, as a whole is a measure for agrarian reforms. The main objects highlighted by the act are:-
1. To give the tenant security at/in his holding at a fair and equitable rent;
2. To gradually eliminate the intermediaries between the state & the cultivator’s; and
3. To lay down the rules regarding ejectment and recovery of rent and the procedure for determination of all claims and disputed questions between the landlord and the tenant.
The Act is intended to confer on the cultivating tenant, fixity of tenure and to provide for a fair and equitable rent subject to a maximum rate of rent. He cannot or is not, to be ejected from the land of tenancy except on specified grounds and as per the act.
More importantly, provisions in Chapter VI of the Act tend to eliminate intermediaries between the Government and the tillers of the soil. The removal of such intermediaries will create a class of peasant proprietors, thus making the cultivators the owner of the land.
It provides for the acquisition of all rights, titles and interests of the landowners and the intermediary rights by the cultivating tenants (except ownership rights of minors, widows or persons suffering from mental or physical disabilities and persons serving in the defence forces).
Further, it is intended that land should be held by an agriculturist, and for this purpose, the right to transfer given to an Occupancy Tenant has been restricted to transfers to agriculturists only, and transfer to a non-agriculturists has been declared invalid.
Sub-letting or transfer of any or whole part of the holding by a tenant, otherwise by then as per the provisions of the act, will result in for future of tenancy.
If the transfer is made in favour of an agriculturist, he will become a tenant under the landlord, but if the transferee is a non-agriculturist, the transfer will be void and the Deputy Commissioner will be entitled to put a landless agriculturist in possession of the land-holding as a Non-Occupancy Tenant of the landlord.
To protect the interests of the farmer, the Act has included the following provisions:-
1. For acquiring the status of an occupancy tenant, the period of holding the land has been reduced to 3 years;
2. The holding of a tenant is made heritable like other immovable properties.
3. The occupancy tenant has been given a permanent and transferable right of use of land and the occupancy, but a limitation has been put on the right of transfer, the restriction being transfer can only be to an agriculturist.
4. The holding of an Occupancy Tenant has been made non-resume-able. The landlord can resume the holding of a non-occupancy tenant in case of abandonment only with the approval of the Deputy Commissioner.
5. ‘Voluntary Surrender’ of a holding has been regulated, prohibiting the landlord from taking possession of the land, from the tenant; and the Deputy Commissioner has been empowered to settle the land with landless cultivators. This prevents the ejectment of a tenant through the use of ‘voluntary surrender’.
6. The landlord can demand from the tenant, a fair and equitable rent subject to the maximum rent statutorily fixed.
7. Security in respect of dwelling sites. A tenant is not to be ejected from a dwelling site without allowing him to purchase it;
8. A tenant is protected from ejectment except in the execution of a decree passed on the grounds specified and in the manner laid down in the act. A tenancy cannot be terminated by the contract between the parties and the landlord cannot take forcible possession of the land.
9. Although the transfer to a Non-agriculturist by an occupancy tenant or non-occupancy tenant is void, an exception has been made in the case where- the tenant has been given the right to hypothecate his interest with the state government, Union government, a cooperative society or an authorized bank to secure the loan for purpose of agricultural only;
10. The right to acquire ownership or intermediary rights by a tenant or undertenant. This is a measure of land reform that will gradually remove/reform the intermediaries and abolish landlordism and make soil tiller, owner of the land, under Chapter VI of the Act.
11. Penal provisions for contravention of any of the provisions of the act.
Under the new act, there are only two classes of tenants:
i. Occupancy Tenant
ii. Non-Occupancy Tenant
However, in the old Act of 1935, there was another class of tenants called ‘Privileged Raiyat Tenant’. Any tenant who held land continuously for 12 years or more at a rent not exceeding the revenue rate or merely by rendering services or blog was called ‘Privileged Raiyat’.
Since this type of Raiyat, did not materially differ from occupancy tenant (except on point of rent rate), it was merged with occupancy tenant in the 1971 Act.
The act has also reduced the period of holding land for being an Occupancy Tenant, from 12 years to 3 years.
OCCUPANCY TENANT & NON-OCCUPANCY TENANT
RIGHTS, OBLIGATIONS and DIFFERENCES
As per Section 4(1) (i), an Occupancy Tenant is a tenant holding land immediately under a proprietor, landholders or settlement holder and having a right of occupancy in land held by him.
(i) A person who, for a period of 3 years or more has continuously held land as a tenant shall have a right of occupancy on that land;
(ii) The period of 3 years may be wholly or partly before or after the commencement of the act.
(iii) A person shall be deemed, for Section 5(1) (i) to have continuously held land under a landlord, if the land held was the same despite the landlords changing.
(iv) If a tenant recovers, possession of his holding under any law in force, any period during which he may have been out of possession, shall count towards the period under Section 5(1)(i).
RIGHTS OF OCCUPANCY TENANT:
(i) An Occupancy Tenant has a permanent, heritable and transferable right of use and occupation on the land, as per Section 6.
(ii) The rights of an occupancy tenant are heritable in the same manner as any other immovable property under Section 7.
(a) Rights of occupancy are transferable with the prior permission of the government and with notice to the landholder, but he cannot transfer his holding to a non-agriculturist under Section 5.
(b) An Occupancy Tenant has no right of sub-letting. The new act prevents the creation of new under-tenants which comes under Section 9.
(iv) An occupancy tenant has the right to use the land in any manner which does not materially impair the value of the land, or render it unfit for tenancy under Section 10. If he uses the land, which leaves it unfit for tenancy then he becomes liable to ejectment under Section 51.
(v) Right against arbitrary ejectment; any ejectment based on Section 51(1) or any other ground can only take place through procedure laid down in Chapter IX of the act or under Section 14.
(vi) Any occupancy tenant is entitled to grow trees, plant and enjoy the flowers, fruits and other products that grow during the tenancy. When the tenancy is over 20 years, all the trees standing on the land of tenancy are presumed to have grown during the tenancy.
OBLIGATIONS OF THE OCCUPANCY TENANT:
(a) Under Section 12, an Occupancy tenant is obliged to pay rent to his landlord at a fair and equitable rate, subject to the following conditions-
(i) Rent cannot exceed the maximum rate of rent .i.e. 3 times land revenue in case of cash rent and 1/5th of the principal crop in case of crop rent.
(ii) If the tenant has been holding the land for 10 years or more, paying rent only at the revenue rate or rendering service together with the payment of rent at less than revenue rate, then rent at the revenue rate is to be considered fair and equitable(for privileged raiyats).
(iii) Rent cannot be enhanced except as per provisions of Chapter VII in the act.
(b) An Occupancy tenant is prohibited from sub-letting his holding or any part of it under Section 9.
(c) Occupancy Tenant cannot transfer to a non-agriculturist. Transfer, even to an agriculturist requires prior permission of the government and the landlord under Section 8.
(d) He cannot use the land in a manner that materially impairs its value or renders it unfit for tenancy under Section 10.
Section 4 (1) (ii) provides that a Non-Occupancy Tenant is a tenant holding land immediately under a proprietor, landholder, or settlement holder, but not having a right of occupancy in the land held by him.
The tenancy of a Non-Occupancy Tenant accrues by agreement between the tenant and the proprietor, land-holder or Settlement-holder as the case may be, for allowing the tenants to hold the land for a period of fewer than 3 years.
RIGHTS OF NON-OCCUPANCY TENANT:
(i) A Non Occupancy Tenant has the right of use and occupation of land till he is lawfully ejected under Section 15 (a)
(ii) His rights are heritable like any other immovable property which comes under Section 15 (a)
(iii) Under Section 15 (b), the Non-Occupancy Tenant has no right of transfer but can hypothecate his land to union or state government or coop society or bank for agricultural land. In case of default, his holding may be attached and sold under Section 49 of the act.
(iv) Non-Occupancy Tenant cannot sub-let under Section 16.
OBLIGATIONS OF THE NON-OCCUPANCY TENANT:
Under Section 17, a Non-Occupancy Tenant is obliged to pay rent at a fair and equitable rate subject to maximum rate under Section 28. Rent enhancement shall be as per provisions of Chapter VII and enhancement of rent as per Chapter IX of the act.
DIFFERENCES BETWEEN THE OCCUPANCY TENANT and NON-OCCUPANCY TENANT:
(a) Time Period:
Under Occupancy Tenant, they hold land for 3 years or more than that. In Non-Occupancy Tenant, they can hold land for 3 years or less than that.
(b) Acquisition of Ownership Rights (AOR):
Occupancy Tenant can apply for Acquisition of ownership right under Section 23 of Assam (Temporarily Settled Areas) Tenancy Act, 1971.
Non Occupancy Tenant cannot apply for Acquisition of ownership right under Section 23. But on acquiring the status of Occupancy Tenant after 3 years they can apply for acquisition of ownership rights.
(c) Rights over land:
Occupancy Tenant has permanent, heritable and transferable rights. Non Occupancy Tenant does not have such rights.
Whereas, heritable rights continue till the tenancy continues, only has right to mortgage land for agricultural land.
Section 20 of the act provides that with the commencement of the Act (1971), that sub-letting there shall be no new under tenant holding under an Occupancy Tenant or a Non-Occupancy Tenant. This conforms with the prohibition of sub-letting by the occupancy tenant or non-occupancy tenant.
(i) TENANT AT SUFFERANCE:
A Tenant may retain and continue to own the leased property after the termination of the lease or in its determination by efflux of time. If such retention of possession is without the consent of the landlord, a tenant is commonly known as Tenant at Sufferance.
Such tenant unlawfully holds the land after the expiration of the lease by efflux of time, and wrongfully continues in possession. A tenancy at sufferance does not create a relationship between landlord and tenant.
(ii) TENANT HOLDING OVER/ TENANT AT WILL:
A tenant in possession with the consent of the landlord is a ‘Tenant Holding Over’ or a ‘Tenant at Will’. Statutory recognition has been given to such tenants by Section 116 of Transfer of Property Act, which contemplates that if a tenant remains in possession after possession or determination of the lease and the landlords accept rent from a tenant or otherwise assents to the continuing in possession, the original lease may be deemed to have been renewed from year to year or month to month depending upon the purpose of the lease as per Section 106 in Transfer of Property Act.
#NOTE: However, there are some more important provisions in this Act, that must be discussed. Head to PART-2 of our coverage of the Assam (Temporary Settled Areas) Tenancy Act, 1971