Land Tenure
Land Tenure holding land of the state or of a proprietor on specific terms and conditions. bengal delta, a gift of the region's alluvial rivers and seasonal rainfall, has always been known for its flourishing agriculture and agriculture-based manufactures. In the pre-industrial world, when agriculture was the bedrock of all economic systems, Bengal held an important position. Attracted by its agricultural and other resources, commercial and military adventurers from far and wide came to Bengal throughout its history and frequently established their polities here and ruled the country according to their own fashion. As land was always the main source of state revenue, successive dynasties tried to twist the existing land system to their advantage. Thus there was no uniform land system throughout Bengal history. No great dynasty entirely adopted the old system of land tenure, nor did any dynasty introduce an entirely new one. Thus, Bengal land tenure was always marked by continuity as well as change.
The ancient period Indologists differ as to the loci of ownership. According to some authorities, land was owned by the king, while according to some others, it was owned by the peasants. A third view has it that the land was neither owned by the king nor by the peasants but by the village community. The village community theory may safely be set aside because the village community did not develop in Bengal in the way it did so in Northern and Western India. Bengal village settlements developed in a highly scattered manner. Due to their dispersed nature, a well-knit social organisation could scarcely develop in Bengal. The peasant ownership theory may be partially accepted on the ground that peasants tilled lands hereditarily and cultivated them without interference on payment of some dues fixed by custom or by the king's laws. The entitlements were thus a combination of those of both the king and the peasants. The landlordism of the king has been blended with peasant proprietorship, signifying that both had rights on the land, one as the sovereign, and the other as the actual tiller. The king's right to peasant produce rested not only on his power but also on his ability to organise irrigation projects and reclamation drives and his ability to defend peasants from internal disturbers and external raiders. It may be noted here that the king's right to land is clearly expressed in most of the extant copperplate documents of the Gupta period concerning land grants and land sale.
The king had the right to impose tax, but the king's power was limited by customs and injunctions of the Dharmashastras. He had the right to expel a peasant from his holding, but such power was also limited by religious sanctions and king's own laws. There were tenures, which were rent-free and permanent and could not normally be resumed by the king. An example of this type of tenure is the nivi-dharma tenure of land. This was granted for maintenance of sangha or vihar and other charitable purposes. Such grants could not be resumed unless some serious default occurred on the part of the donor. At the end of the Gupta age, a new term bhumicchidranyaya came to be used parallel to nivi-dharma. The difference between the two types of tenures is not, however, very clear. But it is quite certain that both types were rent-free grants. Only the conditions attached to the land grants could differ.
As in later times, the land was classified by the state according to its use and fertility. Copper-plate inscriptions prior to 8th century AD indicate mainly three types of land, which regulated the relation between the state and the peasantry. These were vastu (homestead land), ksetra (plough-land) and khila (cultivable wasteland). The rent structure of these lands must have been different. Otherwise, such classification would not have been made at all. But in the inscriptions of land grants and land sales, the prices appeared to be same for all types of land. In the absence of proper evidence, this riddle cannot be solved. Gochara or pastureland was another type, which appeared in inscriptions. Ostensibly, gochara land was tax-exempt and considered as common holdings. Gochara was always mentioned in the inscriptions as markers of village boundaries. From this it may be inferred that gochara land began where village land ended.
The medieval period Information about the land system during the Sultani period is as inadequate as was the case with that about land system in ancient times. It is, however, assumed that the sultans did not change the previous system very drastically, though they had introduced many new tenurial terms for the existing institutions. The sultans seemed to have collected land revenue mostly directly from the peasants as before. The provincial governors played a crucial role. There was an intermediate class called majmuadars who formed a rent receiving interest group as revenue farmers. How extensive and organised the majmuadari institution was is not very clear. That the sultans received land tax through revenue farmers is evidenced by the fact that the Portuguese were employed as revenue farmers of some coastal parts of eastern Bengal. Evidence indicates that majmuadars were not perpetual tenureholders. They were engaged for a term and required to pay a fixed amount to the royal treasury out of what they collected from the peasantry. Like the nivi-dharma tenure of ancient rulers, the Sultani rulers also made rent-free land grants to religious and charitable organisations and individuals, though the nomenclatures for such grants were mostly different name.
The land tenurial system was substantially changed by the Mughal rulers. Though land belonged to the state under the Mughal constitution, such ownership was compromised to an extent because of some limited private ownership. Scholars believe that Mughal rulers had recognised private property in land by selling lands to individuals and recognising them as proprietors. But such proprietorship was more an exception rather than a rule. In general, land belonged to the state. The government engaged revenue collectors called zamindars and talukdars who traditionally enjoyed revenue collecting right hereditarily. But the government had always the right to dispossess such revenue collectors. However, unless they proved to be chronic defaulters or recalcitrant their tenure as revenue collectors was not interrupted. Zamindars and talukdars were perceived to be mere just revenue collectors, and had no right to change the rate of rent without directives from the government. The raiyats enjoyed customary rights in land, which they enjoyed hereditarily on the basis of the terms laid down in patta and kabuliyat. As regards tenurial rights in land, there were two groups of raiyats: khudkasta and paikasta raiyats. Khudkasta raiyats were the permanent residents of a village and had customary rights in land. They had the right to possess the land permanently and use it as they liked so long they adhered to terms of the kabuliyat or agreement. They had the right to pay jama or state revenue according to the standard rate of the pargana what was then known as pargana nirikh. Paikasta group of raiyats were non-resident cultivators who moved from village to village in search of cultivating land for a season at competitive rent rates. They paid a much smaller rate of rent than their khudkasta counterparts. But as they were basically migratory sort of peasants, they had no rights in the land that they cultivated.
One remarkable feature of the Mughal land tenure system was jagir or assigned lands. Imperial officers were often not paid salaries in cash but were given compensation in the form of jagir. A jagir comprised an area, which was estimated to yield in revenue an amount equivalent to the pay sanctioned for them. Jagirs were usually not hereditary and there was no fixed period for which a jagir could be held. Jagirs were also frequently granted for the support of individuals who held them during their lifetimes. Holders of jagirs were practically tenureholders; some were temporary and some permanent. To raiyats, jagirdars were like zamindars. Raiyats paid them rent as they did to zamindars. But jagir rights never affected the prescriptive raiyati rights, which were backed by customs and usage. In addition to jagirs, the Mughal system provided for lakhiraj or rent-free revenue grants, usually known as madad-i-ma'sh (aid for subsistence). Madad-i-ma'ash grants were made to learned men, religious devotees, and persons of noble lineage who would not take to any employment. No service was expected of the grantees in return. The madad-i-ma'ash grants were not transferable. There were other kinds of lakhiraj grants, such as inam-i-altamgha (hereditary grants to officials' families) and waqf (assignment to institutions like religious shrines, tombs and madrasahs).
The Company period The east india company regime carried out several experiments in land tenure system before the introduction of the permanent settlement in 1793. The Mughal system of revenue collection was retained more or less during the period of 'double government' (1765-1772), which allowed the institutions of zamindars, talukdars and lakhirajdars of all types to operate without too many problems. But in 1793, a major change in the traditional system was brought about by sidetracking the old landholders and introducing a farming system under which landholders were dispossessed and land was farmed out for five years to the highest bidders. But the farming system failed miserably to achieve the goals set for it by government. Zamindari rights were restored in 1778 but settlements were made with the zamindars for a limited term only, from a minimum of one year to a maximum of three years. Under the pitt's india act of 1784, the Calcutta government was directed to stop further experiments in revenue administration and made to introduce a permanent settlement with the zamindars and other traditional landholders. Accordingly, the Permanent Settlement was introduced in 1793.
Under the regulations of the Permanent Settlement, zamindars had the proprietary right in land. As proprietors of land a zamindar could transfer his land, freely in the form of sale, gift, lease, and so on. The government revenue demand upon zamindars was fixed for perpetuity. While vesting the zamindars with absolute proprietary rights in land, the Company government remained silent about the status of raiyats under the zamindars. During the Mughal period they had hereditary rights in land and their rent-rate was fixed by customs and usages. At this juncture, the customary rate could not be changed by zamindars and other rent collecting agencies at will. Permanent Settlement regulations did not, however, make it clear whether the peasantry held the same rights in land as they had been enjoying traditionally. Consequently, judges of the Diwani Adalat were giving conflicting judgements as to the customary rights of raiyats. Some courts held that customary peasants' rights in land were not affected by the Permanent Settlement, while some others held just the opposite view. According to the latter, the proprietary right of zamindars had by implication terminated the customary rights of raiyats who were now just tenants-at-will of zamindars.
The rise of intermediate tenures The proprietary zamindari tenure soon led to the rise of intermediate tenures separating the zamindars and actual tillers of land, often by several degrees of rights one upon another. Under the pressure of the Permanent Settlement many zamindaris were sold in public auctions. The fear of being dispossessed to their zamindars, due to the inability of punctual payment of public revenue, led many zamindars to create perpetual tenures in lieu of cash salamis and a quit rent. In adopting this device, the pioneering role was played by the Raja of Burdwan who had created a novel tenure called pattani. The raja divided the whole zamindari into numerous lots. Every lot was settled with a tenureholder with the conditions that he would enjoy a rent rate fixed perpetually, pay a cash salami in lieu of the favour and that his tenure would be sold in auction in default of payment of rent in time. The pattani system saved the raja from the revenue sale law (Sunset Law) and also made him prosperous. His success influenced other landholders, who also created below them intermediate tenures of the pattani type. The pattani tenureholders, in turn, created second and third, and even, fourth degrees of pattanidars, one upon another. Between the zamindari tenure and raiyati rights there thus emerged permanent intermediate rights. Legally, the pattani tenure led to the creation of property within property. Pattanidars of various degrees were proprietors of their land, subject to punctual payment of quit-rent to superior interests.
Another brand of intermediate tenure was the hawla tenure of the reclamation districts of South Bengal. With the increase in population from the beginning of the nineteenth century, the pressure on land also began increasing. The population pressure on land led to a reclamation movement in the sundarbans zone and in the present greater districts of noakhali, faridpur, Bakerganj, khulna and jessore. The core area of the clearing movement was Bakerganj. The bordering zamindars of the Sundarbans zone led the movement by creating a clearing tenure called hawla. The hawladars held the land of the zamindars at a quit rent and paid salami on a permanent basis. The hawladars brought land-hungry peasants from the neighbouring districts for reclamation. Such pioneer peasants were motivated to carry out a clearing drive by giving them permanent tenurial rights in land. There was a second degree of hawladars called osat hawladars who were followed by nim osat hawladars and so on. In this way, multiple degrees of hierarchic landed interests with permanent tenurial right developed in South Bengal in the nineteenth century. This method of clearing jungle land by creating tenurial and sub-tenurial rights in land has been called by many as subinfeudation. But such a term is possibly wrong in the sense that subinfeudation is a feudal institution whereas hawla is a capitalist institution. The holders of the tenures, hawladars, used to invest their capital and labour in clearing the land under forests and marshlands.
It is remarkable that the intermediate rights that grew between the zamindars and raiyats had no legal basis. The government recognised the pattani brand of intermediate tenure by Regulation VIII of 1819, while the hawla group of tenure was recognised under the bengal tenancy act of 1885. The rise of intermediate tenures seriously affected raiyati rights. While previously, zamindars were not inclined to recognise the customary rights of raiyats, now they were joined with by tenureholders who were more vocal against the rights of raiyats. Such a development led to a series of peasant disturbances in the 1870s. The Bengal Tenancy Act of 1885 is largely a remedial measure adopted to deal with these peasant movements. The act defined the rights and liabilities of all landed interests below the zamindari tenure. In defining the rights of raiyats, the act categorised them into two major groups: occupancy raiyats and non-occupancy raiyats. A raiyat in uninterrupted possession of a holding for twelve years and more was declared an occupancy raiyat who could not be evicted and whose rent could not be enhanced without establishing valid reasons for such a rise in rent, or improvement of the land by zamindari investment, or land accretion, and so on. The right of the occupancy raiyat was declared not only hereditary but also transferable, subject to the consent of and payment of transfer salami to the zamindar. The non-occupancy raiyats were those who held the land for less than twelve years. Their rent could be enhanced without any reason giving by the zamindar, but they could not be evicted if they paid their rent regularly. Below the non-occupancy raiyats were kurfa or under-raiyats whose rights in land were not defined and who continued to remain tenants-at-will of the landholding interests.
The Bengal Tenancy Act of 1885 thus revised the original constitution of the Permanent Settlement very drastically. But it proved to be only the beginning of the processes of strengthening the rights of raiyats in land. Under the Bengal Tenancy (amendment) Act of 1928 the raiyati right to transfer land, which was highly conditional before, was now made general. The raiyat could now transfer his holding without taking permission from the zamindar, but the system of payment of transfer-salami was still maintained. Under the Bengal Tenancy (amendment) Act of 1939 the salami right of a zamindar was abolished. The raiyats were now virtual owners of land, which could be transferred and which they could use any way they liked. The zamindar was now left only with the rent receiving right.
In the 1940s and afterwards, the land tenure question assumed a completely new dimension. The government as well as the political classes was inclined to see the immediate abolition of zamindari and intermediate tenures and to make the raiyati interests supreme, at least theoretically, in land control. The new outlook found its expression in the east bengal state acquisition and tenancy act 1950, under which all zamindari and intermediate interests were abolished and the raiyats were declared maliks or owners of land. The state, as sovereign, now became the sole rent collecting authority. From now on, the government was to collect revenue and not rent. The malik, who was no more a tenant, was to pay land revenue, not rent. But from the 'tenancy' point of view, the East Bengal State Acquisition and Tenancy Act was yet to settle many problems. [Sirajul Islam]
Land tenure since 1950 The East Bengal State Acquisition and Tenancy Act 1950, passed by the provincial legislative assembly on the basis of the recommendations of the floud commission, was a landmark in the history of tenurial legislation. It abolished the zamindari system by acquisition of all types of intermediary rent receiving interests that existed between the government at the top and the tenants cultivating the land at the bottom. The act brought the tenants directly under the government. Still more remarkable was the change in the mutual rights and obligations between the government and raiyats under the new dispensation.
The abolition of zamindari made the way for introduction of 'raiyatwari' system in this region. The government remained the lord superior and tenants or raiyats became holders of land under the government. They pay rents to the government direct and all lands available for settlement would henceforth be settled by the government through its agency, the district collector, with the tenants directly. The rights and obligations of the tenants would be regulated by the terms of the deed of settlement called kabuliyat enforceable through courts of law.
The most striking change in the land tenure system was the imposition of a ceiling on the quantum of land to be owned or held by a family or body. No family or body can acquire or retain more than 100 bighas (33 acres) of land and the excess land would vest in the government on payment of compensation. This ceiling was raised to 375 bighas in 1961 and was again brought down to 100 bighas in 1972. The 'surplus' land would now be available for settlement with the landless or marginal farmers 'in accordance with the rules or the policy of the government'.
Equally remarkable was the provision for retention of certain categories of land under khas possession and management of the government. These types of lands are declared non-retainable by any tenant or ex-rent receiver. These are hats or bazaars, forests, fisheries and ferry ghats.
Under the repealed provisions of the Bengal Tenancy Act 1885, which was the prevailing tenurial law till the commencement of the act of 1950, the raiyats were classified into several categories with varying degrees of rights and obligations. The new law abolished the class distinctions and brought them under one category of tenants to be called maliks. Their rights and obligations would be governed by the provision of this new act. They are assured of their right to use and enjoy the usufruct including the right of transfer and inheritance by statutory provisions. This statutory guarantee virtually restored the tenants to the status of owner-occupier, which they enjoyed in pre-British period.
No less salutory was the ban on subletting of agricultural land. Subletting of agricultural land was strictly prohibited and its objective was to prevent reappearance of the intermediary interests, which proved real obstacle to the development of agriculture. Fragmentation or sub-division of holdings through transfer or inheritance is responsible for loss of land in the form of creation of new boundary ails and for prevention of the use of modern means of cultivation because of smaller size of the plots. Provisions were made for amalgamation or consolidation of holdings of a mouza (revenue village) by revenue authorities through application or at official initiative. Experiments of consolidation in two thanas in dinajpur district proved a failure because of the lack of cooperation of the local people.
Transfer of agricultural lands to persons who are not bona fide cultivators was prohibited to prevent conversion of agricultural land to non-agricultural uses. This wholesome provision proved in practice infructuous and ineffective because of the definition of 'bona fide cultivator', which included a person cultivating lands through sharecroppers or hired labourers.
Most of the provisions which were intended to improve tenurial rights of the peasants could not be implemented in their true spirit, not so much because there were shortcomings in the statute itself but because of the failure to evolve effective administrative machinery and lack of political commitment. The process of acquisition of rent receiving interests was very slow and only 443 estates were acquired by March 1956, though the act came into force in 1951. It took more than 8 years to complete the process and even today, some rent receiving interests such as waqf and debottar estates could not be taken over.
There was a revolutionary change in the land settlement policy of the government after liberation of Bangladesh. Land revenue being the largest single source of income of the provincial government before liberation, the land settlement policy was guided by considerations of revenue income rather than those of equity and social justice. Surplus or khas lands were settled on payment of salami which was more or less equal to the market price of the land. Naturally, the rich and influential people who could pay for it obtained settlements in their own names or in the name of their henchmen. The landless and marginal farmers could not reap the benefit. Now lands are settled free of salami to the landless people as defined in the land settlement policy.
The government of Bangladesh from 1972 onwards introduced a number of significant changes in the tenurial system. The immediate change was lowering of the ceiling on ownership of total land - both agricultural and non-agricultural - by a single family or body. The limit of 375 bighas was brought down to 100 bighas. A further change was made in respect of ceiling on agricultural land. It was provided that subject to the overall limit of 100 bighas of land throughout the country, the maximum quantum of agricultural land to be acquired or held by a family or body would be 60 bighas. The lowering of the ceiling on agricultural land was intended to broaden the base of holders of subsisting and economic holdings through redistribution of ceiling surplus land. But the principle of equity and social justice was given a goodbye since there was no ceiling on non agricultural land holding, particularly in rapidly growing urban areas where price and income from land were ever soaring. Another significant measure was the exemption of rent in respect of agricultural lands up to 25 bighas held by a single family. Although this provision introduced in 1972 was abolished with the commencement of the Land Development Tax Ordinance 1976, it was reintroduced later.
Prior to liberation, there was no uniform rent structure in the country. It varied from village to village depending on the value of the produce calculated at the time of district survey and settlement operations. The Land Development Tax Ordinance 1976 was enacted to rationalise the revenue structure and to mobilise more domestic resources for development. All rents and cesses leviable upon lands were abolished and instead, a graduated scale of tax was imposed upon all classes of lands according to their use, location and total quantity held by a family. In the absence of a mechanism to determine the total quantity of land held by a family throughout the country or in a thana, the assessment and collection of land development tax seem to have suffered a setback and revenue earnings fell short of what could be expected. Possibility of tax evasion was not ruled out. Changes were also made in the age-old rights of the tenants to their lands lost by diluvion and subsequently reformed in situ.
In respect of mortgage of agricultural land, the period during which the principal amount of loan and interest thereon would be deemed to have been set off against the enjoyment of usufruct to the land by the creditor was lowered from 15 years to 7 years. On expiry of 7 years or on proportionate payment of money, the mortgages are now redeemable and the land will go back to the debtor without any further payment. By another amendment it is now provided that if there is a sale document in respect of a piece of agricultural land and also an agreement to return the land to the seller on refund of the price by a certain date, these two documents would constitute a complete usufrutuary mortgage and the sold land would be returnable to the owner without any extra payment on expiry of 7 years.
Far-reaching changes were also made in the rights of tenants by promulgation of Land Reforms Ordinance 1984. In addition, a 60 bigha ceiling on acquisition or holding of agricultural land, this law declared benami transaction void. Under benami transaction, a person purchased land not in his own name but in the name of some other person, but himself remained the real beneficiary. The ostensible owner or the person in whose name the purchase is made will be deemed to be the real purchaser and no evidence to disprove this presumption will be allowed by the courts.
The most salutory provision in respect of security of tenure is the prohibition of eviction of agricultural tenants from his homestead land. Previously, a person purchasing the homestead land of a tenant in a court auction could get possession of the same through eviction. The law now declares the homestead land of a tenant in the rural areas immune from the processes of the court and the tenant is made secure in his habitation against any kind of eviction proceedings. The most publicised provision of the Land Reforms Ordinance, however, relates to the rights of bargadars or sharecroppers. The sharecroppers who cultivate the land of another person used to get only the half of the produce and another half was to go to the landowner, although he did not share the cost of irrigation and fertiliser.
The new law provides that a barga contract shall be executed between the landowner and the bargadar and the contract would be valid for 5 years with the right of inheritance to the able heir. The bargadar will also have a prior right to purchase the land at the market price. The produce will be divided into 3 shares. One-third will go to landowner, one-third to the bargadar and the remaining one-third to the party, which provides seeds, fertiliser and irrigation. Thus half a century old demand for tebhaga was conceded.
A Rin Salishi Ain was passed in 1989 to give relief to the poor tenants who were compelled to sell their small holdings under distressing circumstances such as flood, drought or cyclone. The law provides for establishment of debt settlement boards in each thana composed of officials and representatives of both the seller and buyer, with authority to declare certain types of sale void and certain other types as mortgages redeemable on expiry of 7 years. Advance purchase of crops and deposit of blank stamp paper with signature or thumb impression thereon were declared void. [Aminul Huq]
Land tenure among ethnic population Ethnic groups, also known as tribal people or adivasis, live in two different geographic patterns, the plains and the hills, which geographically divide them into two groups, the plains ethnic people and the hill ethnic people. The plains ethnic people dwell mostly in different districts of rajshahi, dhaka, Khulna and barisal divisions and the flat land section of the chittagong and sylhet divisions. According to the 1991 census, the largest ethnic group in the plains is the santals who numbered 202,162 while the second largest group was the garos numbering 64,280. Among the tribes, Santals are concentrated in Rajshahi and Dinajpur disricts, Garos and hajongs in Kamalpur, Kishoreganj, Mymensingh, Netrokona and Tangail districts, maghs in Barisal, Chittagong, Patuakhali and Khulna districts and manipuris in Sythet district. Santals in Dinajpur are called paliya. Hill ethnic people are divided into many tribes and live in the three hill districts of chittagong hill tracts (CHT) viz, rangamati, khagrachhari and bandarban. These district border India and Myanmar as well as some part of Sylhet division. The 1991 census estimated the adivasis of Bangladesh at 1,205,978 persons, which constituted 1.13% of the country's total population. About 82% of the adivasis live in rural areas. The major hill ethnic groups or tribes of Bangladesh include Chakmas, Marmas, tripuras, manipuris, hajongs, maghs, tanchangya, mros, uchais, lusheis, bawms, pankhos, chaks, khyangs, khumees, rajbangshis, rakhains, khasias, koaches, urangs, and mahatos.
During British rule, plains ethnic communities were allowed individual ownership of land. Generally, ethnic people showed little concern about the title deeds of land in their possession. They were also not very conscious about the economic value of them land. The chief protection of their land was provided under the Chhoto Nagpur Tenancy Act of 1908. Under this Act, transfer of tribal land to non-tribals without the permission of the deputy commissioner was illegal. In 1977, the Tribal Welfare Association (TWA) was formed in the northern districts. Permission from the TWA is required to sell tribal land to non-tribals. But such provisions are often ignored and members of ethnic groups of the northern districts will sell their land when they face hardship.
In the Garo society, women are owners of landed property and too often non-tribals marry Garo girls to capture land. Garos of Madhupur forest, however, never had any document registering ownership of their homesteads or even their farmlands except the land in which they cultivated rice for which they had to pay revenue taxes. The right by prescription (The Forest Act of 1927 that specifies sixty years of occupancy for prescription) to their land holdings ensured possession and use of the high land in their possession. No one bothered them in their natural habitat or disturbed their cultural heritage. Garos of Madhupur forest were once under the control of the Raja (zamindar) of natore, who allowed them to live on and cultivate the forest land in return for rent and labour payments for both arable and homesteads. They were also allowed to practice jhum (slash-and-burn) cultivation on condition of preserving the quality of the forest. The usufructuary rights granted to Garos by zamindars were known as patta. Under this system, they could cultivate the land upon payment of rent and transfer the land to his/her successors, but s/he did not have the right to sell the land. However, the zamindars could take back the land in full or in part for any public use without giving any compensation. Garos acquired a more permanent form of land tenure, the pattan, when they developed wet rice cultivation. Pattan allowed garos to own land after several years of rice cultivation and regular payments of royalty to the zamindars. With pattan, owners could sell their land and claim compensation if their land was repossessed by zamindars. Pattan, however, did not apply to jhum cultivation. In 1951, the zamindari system was abolished and management of the forests, including the madhupur tracts, was transferred to the Forest Department. The Madhupur forest was declared reserve forests in 1955 and in early 1960, part of Madhupur was declared a National Park.
According to the 1991 census, the total population of CHT was 9,74,445 of which 5,01,144 were ethnic people. The largest ethnic group in the CHT is the Chakma who numbered 239,417. The second largest group was the marma (142,334). Rajas and Chiefs possessed all the land in the CHT. Land holdings by the ethnic groups in the region is based on customs and traditions that date back to many centuries. The British did not interfere with the Chiefs and their officials during the initial period of their rule. The CHT were formed into a district by Regulation - I of 1900 and an officer-in-charge with the title of deputy commissioner was appointed. With a desire to attain political stability and economic control, the British divided the Hill Tracts into three circles: (a) the Mong Circle in the north, under the Mong Chief, with headquarters at manikchhari, (b) the Chakma Circle in the centre, under the chakma Chief, with headquarters at Rangamati and (c) the Bohmong Circle in the south, under the Bohmong Chief, with headquarters at Bandarban. These circles were divided into as many as 369 mouzas. While the headmen collected rents at the mouza level under the control and authority of the Chiefs of the three circles, the deputy commissioner retained the control of all land settlements. The British encouraged the permanent mode of cultivation i.e., plough cultivation. The reclaimable lands were leased out to tenants. Such leasing was known as amalnama, which provided to tenants permanent and heritable rights in the sail. Normally the tenants would not pay rent for the first three years. The plough land was classified into three grades and rent per acre of land was fixed at Rs 3, Rs 2 and Re 1 for first, second and third grade of land respectively. The rent was kept very low to attract the hill people to plough cultivation.
Rights over land in the CHT may be divided into two broad categories, namely, common rights and private rights. Common rights are based upon customs and usage and include the right to jhum, to use forest resources for domestic purposes, to graze cattle on common pastures, and to occupy non-urban land for homesteads. Private rights are the rights of individuals over a clearly demarcated piece of land. Privately held lands in CHT may be categorised on the criterion of land use. Plots used for commercial purposes in the urban centres are the most valuable lands. Bazaar Fund falls into this category of land.
The land situated in the bazaar area is usually administered by the deputy commissioner under the Bazaar Fund Rules. For each bazaar, a Bazaar Chowdhury is appointed. Based on his recommendations, plots are allotted to businessmen, both tribal and non-tribal ones. The next most valuable lands are the flat lands that are situated above the high-water marks of the rivers. Most of these lands may be cultivated with the plough to provide one or more crops and are called plough land. Fringe lands belonging to this category are also among the most priced lands. These lands surface from the shallower beds of the kaptai lake during the dry season and are ideally suited for wet rice cultivation. No formal settlement is required for this type of land and cultivators customarily obtain an informal one-year lease from the mouza headman. In addition to plough lands and fringe lands, are the lands used for forestry and fruit gardening known as grove lands.
There exists a big difference between the flat land and jhum land in the CHT. The flat land is an object of private property, while the jhum land is a common property and not owned by any individual. Farmers who cultivated the alluvial land at the bottom of river valleys and on lower terraces were provided with land titles. Unlike jhumias, these farmers settled themselves on these lands and practiced comparatively intensive crop farming. Holders of land titles have full rights to transfer their land to any one legally recognised as a resident of the CHT. Jhum holdings are not property in the same sense as land on the plains. There are no formal deeds or legal titles. Forked sticks mark the boundaries of jhum plots and they are respected by other villagers. Disputes over crops, or even the theft of crops, may take place, but no one attempts to occupy a plot, which is cultivated by another villager or is already marked by another person to cultivate.
The powers of the deputy commissioner to regulate or restrict the transfer of land in the hill districts are defined in Section 18 of the Chittagong Hill Tracts Regulation (Regulation I of 1900) and amendments to Rule 34 of the Rules for the Administration of the CHT made in September 1971 and in March 1979. The provisions of the amendments are as follows:
The quantity of cultivable or cultivated flat land to be settled for plough cultivation with a single family of hillmen or non-hillmen residents shall not exceed 5 acres. In addition to the flat land for plough cultivation, land for grove plantation not exceeding 5 acres may be settled with such family; but in a case where the deputy commissioner finds the performance of a lessee highly satisfactory, a further quantity of land for grove plantation may be settled with such family so that the quantity of land so settled does not, when added to the quantity of land for grove plantation already in his possession, exceed 10 acres. Settlement of land for plough cultivation or grove plantation shall be free of salami. The grove land so leased out shall be rent-free for the first three years and shall be assessed to rent as third class land for the next three years, followed by an assessment to be made by the deputy commissioner in accordance with the produce of the land. Grove land means flat land and bumpy land and includes such foothill land as would not require terracing, full or modified, and would be utilised solely for plantation of fruit trees and other trees.
Land for residential purposes may be settled by the deputy commissioner with deserving persons on long term lease basis. In urban areas, salami from hillmen and non-hillmen residents for such land shall be charged at 50 per cent of the market value and shall be payable at the time of settlement. Land exceeding 0.30 acre in an urban area for residential purposes shall not be settled with any person without prior approval of the government.
All settlement of khas land shall be concluded in the form of a lease deed prescribed by the government and shall be registered under Rule 12 of the Rules for the Administration of CHT. The rights and liabilities of the lessees shall be governed by such terms and conditions as may be set forth in the lease deed. No lessee shall be allowed to sub-let the whole or any part of his land. No lessee shall be allowed to transfer by sale, gift, or mortgage the whole or any part of his holding without the previous sanction of the deputy commissioner. In all cases of unauthorised sub-lease or transfer, the deputy commissioner shall resume the land sublet or transferred. No partition of a holding shall be made without the consent of the deputy commissioner.
A tenant directly under the government shall have permanent and heritable rights in the land for which he pays rent unless there is a definite contract that his right is not permanent or heritable.
Acts for the welfare of different under-developed tribes and for the development of the three districts of Chittagong Hill Tracts are: (a) The Rangamati Hill District Local Government Parishad Act 1989; (b) The Khagrachhari Hill District Local Government Parishad Act 1989; and (c) The Bandarban Hill District Local Government Parishad Act 1989. The language, sections, and contents of these acts are identical. Under Section 64 of the acts, no land could be settled on anybody without the prior approval of the Local Government Parishads consisting of the elected representatives of the hillmen and non-hillmen residents of the district concerned and no land could be transferred to any person who was not a resident of the concerned district without sanction of the Parishad. Under Section 65 of the acts, the government could empower the Local Parishad to collect the land development tax and allocate the full or a part of the collected tax to the Parishad as grant by notification in the official gazette. These acts were amended in 1998 in pursuance of the agreement signed on the 2 December 1997 between the National Committee on Chittagong Hill Tracts Affairs, and the Parbatya Chattgram Jana Sanghati Samiti (PCJSS). The words 'Local Government' were consequently deleted from the titles of the acts. Under section 29 and 30 of the amended acts (Acts IX, X, and XI of 1998), sections 64 and 65 were substituted as follows:
Section 64 (Special Provision on Land): (1) Notwithstanding anything contained in any other law for the time being in force, (a) no land, including khas land fit for settlement, can be leased, settled, purchased, sold or otherwise transferred without the previous sanction of the Parishads. Provided that this provision will not apply to the Reserved forests, the Kaptai hydro-electricity area, Betbunia satellite station, state-owned industries, and land recorded in the name of the government; (b) no land under the control and jurisdiction of the Parishads can be acquired or transferred without discussion and agreement with the Parishads. (2) The Parishads will supervise and control the services of the headmen, chainmen, amins, kanungos and assistant commissioner (land). (3) The fringe land of Kaptai Lake will be settled with the original owners on priority basis.
Section 65 (Collection of land Development Tax): Notwithstanding anything contained in any other law for the time being in force, the responsibility of collection of land development tax on land (within the jurisdiction of the respective districts) shall vest in the Parishads and the collected amount shall be deposited in the fund of the Parishads.
In the accord of 2 December 1997, it was agreed that in consultation with the Parbatya Chattagram Anchalik Parishad (Chittagong Hill Tracts Regional Council) constituted under Section 3 of the Chittagong Hill Tracts Regional Council Act 1998, survey and settlement operations would be conducted, land disputes would be disposed off after proper verification, land ownership of the tribal people would be finalised, their land would be recorded in their favour, and thus their land rights would be ensured. It was also agreed that subject to availability of land in the concerned area, the government would settle two acres of land to each landless tribal family and a tribal family having less than two acres of land would be given such quantity of land as to make the total two acres. In case the required land is not available, grove land or tilla land may be settled with such a family.
Quite a few tribals were driven out of their land due to infiltration of large number of plainsmen in the CHT and because of the unrest that existed in the region till signing of the peace accord on 2 December 1997. They left their homes in Bangladesh and crossed over to Indian Territory. The Land Commission, constituted in pursuance of the peace accord, has to resolve the land issues of the ethnic people of the region following prevalent laws, customs, and practices. [Shamsud-din Ahmed]
