Learned members of LCI,
Is the restrictions imposed by any act/law on transfer of property/land belonging to schedule tribes / Schedule Castes/Backward classes are reasonable/fair/just in current scenario?
A schedule tribe member is in need of money, he sells his land illegally at the price of one lakh per decimal due to these restrictions, and otherwise he would have got four lakh per decimal.
Ownership of land/property is one thing and to get benefits out of the land/property is another thing. As a example one tribal cannot mortgage the land like another non tribal even to The Govt. agencies like bank etc to get loan for education or other financial needs like marriage, agriculture etc and till today they are forced to borrow from the moneylenders. Also there are members of Schedule Tribes who have migrated to some other place or in some other country, what they will do with their lands.
It would also be useful to refer Section 46 of the Act (Chhotanagpur Tenancy Act in short CNT Act 1908) which puts a restriction in the transfer of land by a raiyat belonging to a member of Scheduled Tribes Schedule Castes and backward classes. Section 46 reads as under:
“46. Restrictions on transfer of their right by Raiyat. –
(1) No transfer by a Raiyat of his right in his holding or any portion thereof -
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent :
Provided that a Raiyat may enter into a ‘bhugut bundha’ mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgages be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years :
Provided further that –
(a) an occupancy-Raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;
(b) an occupancy-Raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the Holding is situate.
(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to 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 to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central 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; and
(d) any occupancy-Raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange gift, will, mortgage or otherwise to any other person.
Even in some cases it requires previous permission from the concerned Deputy Commissioner in cases of transfer of land by members of Schedule Tribes/Schedule Castes /Backward classes.
Getting previous permission from the concerned Deputy Commissioner is somewhat adding corruption, also the vendor is not getting the correct price/value of their property.
Most of the acts/laws are placed/included in the 9th Schedule.
“We live in times when the Supreme Court believes that liberalization, privatization and globalization are good for the country and any law that hinders these will violate fundamental rights and hence, the basic features of the Constitution.”
Laws in Ninth Schedule open to judicial review: Supreme Court
Ninth schedule open to challenge: SC - New Delhi, January 11: In a significant ruling, the Supreme Court on Thursday said the laws included in the Ninth Schedule of the Constitution after April 24, 1973 were open to judicial review.
In a unanimous verdict, a nine-judge Constitution Bench headed by Chief Justice Y K Sabharwal held that legislations did not get protection of the Ninth Schedule, if they were violative of the basic structure of the Constitution.
Laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution, the bench said.
If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting into violation of the basic structure of the Constitution, such laws have to be invalidated, it said.
Please, comment.
