Some land in West Bengal cannot lawfully be sold to a private purchaser however complete the seller’s papers appear. Land recorded as vested or khas belongs to the State. Land with a recorded bargadar carries a cultivator’s rights that survive a sale. Land comprised in a thika tenancy vested in the State in 1982 and the former landlord’s interest was extinguished. Wakf and trust property can only be dealt with subject to the statute or the instrument that governs it. Each of these is detectable from the record of rights, the mouza map and the chain of deeds before any money is paid, and each is the subject of a recurring pattern of misrepresentation.
Vested and khas land
Under the West Bengal Land Reforms Act, 1955 and the estates acquisition legislation that preceded it, land held above the ceiling and land in which no person retained an interest vested in the State. Where the record of rights shows a dag as vested, khas, or held by the Government, it is not capable of being sold to a private purchaser, and no deed, no possession and no length of occupation will alter that. Settlements of such land are made by the State in defined circumstances and on defined terms; they are not made by the person occupying it.
This is the most frequently encountered pattern of title fraud in West Bengal. It commonly presents as a seller with a plausible deed, actual physical possession, and an explanation for why the record has not caught up. The check is a single entry in the record of rights, and it is conclusive against the seller.
Land with a recorded bargadar
A bargadar is a person who cultivates the land of another on a share of the produce. The West Bengal Land Reforms Act, 1955 gives a recorded bargadar a heritable right of cultivation which is not transferable and which can be terminated only on the grounds and by the procedure the Act provides. Recording of bargadars was carried out extensively under Operation Barga.
The right is against the land. It survives a sale, and a purchaser takes subject to it. A seller’s assurance that a recorded bargadar has given up cultivation, or has been “settled with”, is worth nothing unless the record has been corrected by an order following the statutory procedure. The check is the note in the khatian and an enquiry at the land and land reforms office — not an enquiry of the seller.
Thika tenancies
This category is specific to Kolkata and Howrah, and it accounts for a large amount of older land in the city.
A thika tenant held land under a landlord and built structures on it, letting rooms to occupiers called bharatias. The Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, and now the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, provided that land comprised in and appurtenant to thika tenancies, together with the interests of the landlords in it, vested in the State free from encumbrances with effect from 18 January 1982. Thika tenants hold directly under the State, may construct pucca structures in accordance with plans sanctioned under the Kolkata Municipal Corporation Act, 1980 or the Howrah Municipal Corporation Act, 1980, and pay revenue to the State. A Controller appointed under the Act administers the scheme.
The consequence for a purchaser is that the former landlord has nothing to sell. A conveyance executed by a person claiming as landlord of thika land, or a chain that runs through such a conveyance, does not transfer the land. Bharatias have their own protected position. Whether a particular property is thika land is a question for the Thika Controller’s record and the history of the holding, and it should be asked in any transaction in the older parts of Kolkata and Howrah — particularly where the structure is old, the occupation is multiple, and the seller’s chain is thin before 1982.
Wakf and religious or charitable trust property
Property dedicated as wakf is administered under the Wakf Act and is subject to the powers and the sanction requirements of the Board. Property held under a religious or charitable trust or as debuttar is subject to the instrument creating it and to the position of the shebait or trustee, who ordinarily has powers of management rather than a power to sell. A transfer without the sanction the statute or the instrument requires is open to challenge long afterwards, and by persons who were not parties to it.
Where a chain of deeds contains a transfer by a trustee, a shebait, a mutwalli, or a committee, the authority for that transfer is a document to be produced and read, not a matter to be assumed.
Leasehold plots
Much land in New Town, Rajarhat was allotted on leasehold terms by the Housing Infrastructure Development Corporation, and a good deal of institutional and industrial land elsewhere is held on lease from a State agency. What such a seller has is the leasehold interest, subject to the terms of the lease — including, commonly, a requirement of the lessor’s consent to a transfer and restrictions on use. A purchaser should establish whether the interest offered is freehold or leasehold, and if leasehold, the unexpired term, the covenants, whether the interest has been converted to freehold, and whether consent to the transfer has been obtained.
Land subject to acquisition, alignment or environmental restriction
Land under acquisition, land falling within the alignment of a proposed road, metro or drainage scheme, and land within a coastal regulation zone — which affects parts of the Sundarbans and the estuarine districts — is subject to restrictions that do not appear in the deed. These are enquiries with the acquiring or planning authority, and they are the enquiries most often omitted.
The pattern to recognise
Each of these categories produces the same warning signs: a seller in possession whose paper chain is short or begins abruptly; a record of rights that has not been mutated for a long period; an explanation offered for a discrepancy rather than a document; and pressure to pay an advance before the record is examined. The advance is the point of no return, because a purchaser who has paid one is negotiating from a much weaker position than one who has not.
Enquiries to make before paying anything
- Certified copy of the current record of rights, read for classification and for any note of vesting or of a recorded bargadar
- The mouza map, and any earlier map, to establish the identity of the dag and whether it was a water body
- The chain of registered deeds for thirty years, with the transfer preceding 1982 where the property is in Kolkata or Howrah
- Where the chain contains a transfer by a trustee, shebait or mutwalli, the authority for it
- Whether the interest is freehold or leasehold, and the terms of any lease
- Enquiry at the land and land reforms office as to vesting and recorded bargadars
- Enquiry at the Thika Controller’s office where the property is old land in Kolkata or Howrah
- Enquiry with the planning and acquiring authorities as to acquisition, alignment and land use
Frequently asked questions
How do I know whether land is vested?
The record of rights will show it. Where the entry shows the dag as vested, khas or held by the Government, it cannot be sold by a private person, and a certified extract from the office should be obtained rather than a screenshot.
The seller says the bargadar has left the land. Is that enough?
No. A recorded bargadar’s right is terminated only on the grounds and by the procedure the Act provides, and until the record is corrected by an order, a purchaser takes subject to it.
Can thika land be bought?
The land itself vested in the State in 1982 and the former landlord’s interest was extinguished, so a purported sale by a landlord conveys nothing. What may exist is a thika tenant’s position and the rights of bharatias, and any transaction has to be examined against the Controller’s record.
Is a long period of undisturbed possession any protection?
Not against the State in respect of vested land, and not against a statutory right such as that of a recorded bargadar. Possession matters in disputes between private parties; it does not cure these categories.
Whether a particular property falls within any of these categories depends on its record, its map and its history, and cannot be determined from a description of it. This page sets out the general position and is not advice on any specific property.