Alienation Of Land Of Scheduled Tribes: An Analysis

This provision is to ensure protection of the land resource of individuals, communities and habitations of Scheduled Tribes in Scheduled Areas. Alienation of land of a Scheduled Tribe would mean dispossession of land by any means to any one, whether a tribe or a non-tribe. The objective of this provision is to ensure protection of rights to land of every tribal persons as indicated by the usage of the term ‘a Scheduled Tribe’. Both the Gram Sabha and Panchayats at appropriate level is bestowed the power to prevent land alienation and to take action to restore illegally alienated land. This could take the form of resolution through the customary mode of dispute resolution or the formal systems of redressal as the case may be. (Bijoy, 2012)
Power to prevent land alienation which was with the Tehsildar earlier38 has now been given to the Panchayat Samiti for Scheduled Areas. Besides, the Circular also prescribes role of the Gram Sabha and Gram Panchayat in preventing unlawful land alienation and in restoration of an unlawfully alienated land. The Patwari shall prepare a list of such unlawfully alienated lands of Scheduled Tribes of a village and present the list to the Gram Sabha or Gram Panchayat for its consideration. A Consultation shall be organised with the members of the Gram Sabha or Gram Panchayat and the person who has acquired the land and in case the person agrees to return the land to the Scheduled Tribe, the Gram Sabha shall restore the land to the Scheduled Tribe. In case the acquirer refuses to return the land, then a complaint shall be filed before the Panchayat Samiti, the Panchayat Samiti shall order restoration of the land to the Scheduled Tribe. The responsibility of reposing the possession of the unlawfully alienated land is vested in the Gram Sabha or Gram
This is to make sure that dalits who are also socially down trodden are not made to sell land to powerful upper caste through coercion or intimidation made to sell land to more powerful upper caste in a form of 'distress sale'. Thus to protect the interests of weaker sections, even the element of collusion was removed and if it is proved that the land is transferred willingly and without coercion, land is to be resumed by the state government and re-allotted to the members of SC. Refund of money paid in lieu of such transaction cannot be asked for. Such land cannot even be transferred or gifted to an institution. As the act is ab initio void, the transferor is considered equally guilty and Sec 175 makes it mandatory for ejection of both. The court may conclude the enquiry in a summary manner after giving a reasonable opportunity to the parties of being heard and pass an order within 3 months.

According to Sec 46-A, member of SC or ST cannot let or sub-let the whole or any part of his holding to a non-SC or ST. According to Sec 49A tenant of SC or ST cannot exchange his land with a non-SC or ST member. The provision holds even if there has been a change of religion by the SC or ST