By Kenneth Nongsiej
The question of transferring tribal land from a tribal to a natural non-tribal is a well-settled law, and it is prohibited under Section 3 as well as exempted under Section 11 of the Meghalaya Transfer of Land (Regulation) Act, 1971. The term tribal is mentioned in the Constitution of India, the Land Transfer Act, the United Khasi Jaintia Hills District (Trading by Non-Tribals) Regulation, 1954, etc., but the dedicated/separate article or section for the non-tribal definition is limited.
The term non-tribal can include a natural person and a juristic person. Section 2(6) of the Trading by Non-Tribal Regulation, 1954, states that the term “non-tribal” shall be construed accordingly. This article will explore the understanding of the transfer of government land through judicial verdict.
We know that land is a sensitive topic in our state, and its unique land tenure system makes it different from other parts of the country. Since development is linked with the relationship between government, tribal and non-tribal, there have been numerous debates on the issues of land and development. The question had arisen that land can be transferred to a corporation/company/juristic person as they are in the category of non-tribal entities, but they are not a natural person. This question can be answered by the judicial verdict in the case of Samatha v. State of Andhra Pradesh and Ors. ((1997) 8 Supreme Court Cases 191: 1997 SCC OnLine SC 229). To understand this case, let us divide it into different parts:
“The term non-tribal can include a
natural person and a juristic person.
Section 2(6) of the Trading by Non-Tribal Regulation, 1954, states that the term
“non-tribal” shall be construed
accordingly.’’
Land for the tribal
Here the court has observed that it is the most important natural and valuable asset and imperishable endowment from which the tribal derive their sustenance, social status, economic and social equality, permanent place of abode and work, and living. It is a security and source of economic empowerment. Therefore, the tribes too have great emotional attachment to their lands. The land on which they live and till assures them equality of status and dignity of person and means to economic and social justice and is a potent weapon of economic empowerment in a social democracy. Looking at the observation of the Court, we can understand that even though the judgement was pronounced in the year 1997, it is still relevant to the context of our state.
Fifth and Sixth schedule
In this observation, the court relied upon the judgement of Waman Rao v. Union of India. The court in this case observed that the Fifth and Sixth Schedules of the Constitution of India are to protect the tribal from exploitation and to preserve the value of the land for the economic empowerment of the tribal. The most important part of this judgement is that para 5(2) of the Fifth Schedule of the Constitution and the Regulations is to impose a total prohibition of the transfer of immovable property to any person other than a tribal for peace and proven good management of a tribal area and to protect the possession, right, title, and interest of the members of the Scheduled Tribes held in the land at one time by the tribal.
Government land
Companies or corporations, though not natural persons, are considered juristic persons in law. This means they have legal rights, including the ability to sue and be sued. The question then arises whether government land in a Scheduled Area can be allotted to a non-tribal entity. The Samatha judgement provides a clear answer: the Constitution empowers the state to acquire, hold, and dispose of land, while the Governor has the personal responsibility of maintaining peace and governance in Scheduled Areas. Para 5(2)(b) of the Fifth Schedule states that the “Governor” can regulate land allotment but also prohibits its transfer to non-tribal, including corporations.
This means that even government land in Scheduled Areas cannot be leased, sold, or transferred to a non-tribal entity, whether it is a natural person or a juristic person such as a company or corporation. The court further clarified that the word “person” in Section 3(1)(a) of the Regulation includes natural persons, juristic persons, and the government itself. Government land should be allotted only to tribal, either individually or through cooperative societies composed solely of tribal. The state’s executive power to dispose of land under Article 298 is subject to the Fifth Schedule’s restrictions. In simple terms, the State Government cannot lease or transfer land in a Scheduled Area to a non-tribal entity except in cases where it serves a tribal welfare purpose through tribal-owned cooperatives or government instrumentalities.
Section 105 of the Transfer of Property Act defines a lease as a transfer of rights, granting the lessee possession and enjoyment of the property for a specified period. Since a lease creates a legal interest in land, its transfer falls under the same restrictions as ownership transfers. Renewal of a lease is considered a fresh lease grant, meaning it is also prohibited if given to a non-tribal entity. This interpretation prevents indirect land transfers through long-term leasing arrangements, ensuring that tribal land remains with tribals.
Way forward from the judgement
The Samatha case provides a balanced solution to promote development and investment in tribal areas while safeguarding tribal rights. The Sixth Schedule aims to prevent exploitation of tribals and ensure their social, educational, economic, and political empowerment. The Constitution mandates that tribal land should remain with tribals. Even government land should be allotted only to tribals, whether individually or through cooperative societies, and used for their development and welfare. This ruling reinforces that tribal land cannot be leased or transferred to non-tribals, including corporations, except under strictly regulated conditions benefiting the tribal community.
By following this observation the state can ensure sustainable development without displacing tribals; through legal clarity in land transfers, and stronger safeguards against exploitation. The Samatha judgement remains a landmark ruling that protects tribal land rights while allowing for responsible development through tribal-owned enterprises. Meghalaya must continue to uphold these constitutional safeguards to prevent land alienation and ensure economic empowerment for its tribal communities.