Tripura High Court
Sri Pradip Majumder & Others vs The State Of Tripura & Others on 10 December, 2019
Page 1 of 7
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WP(C) No. 619 of 2018
Sri Pradip Majumder & Others
.....Petitioner(s)
-V E R S U S-
The State of Tripura & Others
.....Respondent(s)
For Petitioner(s) : Mr. N. Majumder, Advocate.
For Respondent(s) : Mr. D. Bhattacharjee, G.A.
Mr. S. M. Chakraborty, Sr. Advocate.
Mr. Arijit Bhowmik, Advocate.
HON‟BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON‟BLE MR. JUSTICE ARINDAM LODH O_ R_ D_ E_ R +-
10.12.2019 Heard learned counsel for the parties for final disposal of the petition.
Petitioners have challenged an order dated 19.08.2015 passed by the Sub-Divisional Magistrate, Ambassa, Dhalai Tripura, under Section-187 of the Tripura Land Revenue and Land Reforms Act.1960 (the Act for short) by which he directed restoration of possession of the original land holders, the tribals by dispossessing the present petitioners.
Brief facts are as under:
The petitioners claim to have purchased certain lands from one Monoranjan Chakraborty between the years 1995 to 2000. According to the petitioners said Monoranjan Chakraborty had under an un- registered deed dated 16.06.1967, acquired the title and possession of the land from the original owners who were the members of tribal community.
An inquiry in this respect was initiated under the provisions of the said Act. During the course of the inquiry the SDM had called for Page 2 of 7 an inquiry report from the Revenue Inspector, Ambassa Revenue Circle. Such report was furnished by the Revenue Inspector on 08.02.2016. In the report he had referred to the said un-registered deed dated 16.06.1967 through which said Manoranjan Chakraborty had claimed to acquire the land in question. The SDM in his impugned order did refer to the said inquiry report of the Revenue Inspector, however, after referring to the Provisions of the said Act and in particular Section-187 and following sections he was of the opinion that the land was transferred from tribal to non-tribal without execution of the registered instrument and without prior permission of the Collector. Under the circumstances, in his opinion the powers for summery eviction in terms of the provisions of the said Act were required to be invoked. He therefore made following observations and passed the order:
"Having gone through the above furnished stature provisions carefully, it has explicitly been comprehended that the transfer of land from tribal to non-tribal would exclusively be effected strictly on execution of registered instrument and not otherwise, and the transfer in respect of tribal to non-tribal should only be made under prior permission from the collector, which can also be explained in another manner that any instrument, not being a registered one, has no value in the eye of law and no court shall recoginse as valid instrument to such un-registered instrument in any means.
Under the above, it has clearly come to force that the transfer of land notwithstanding in any manner after 01.01.1969, would only be validated under the registered or un-registered instrument before 01.01.1969.
Going by the above facts & figures this Court has arrived in the conclusion that the tribal jote land as has been recorded in favour of Smt. Abaima Mog W/O Lt. Kanja Mog of Nabagram Kulai should be restored to the 1st party (petitioner) from the 2nd party (respondent) and thereby the below mentioned illegal possessors are liable to the evicted from the area and its related plot.Page 3 of 7
Sl. Name of illegal possessor Kh. No. C. S. Plot No. Area No.
1. Madhu Deb S/O, Binode 57 204/p 0.03 acre
2. Minati Namasudra W/O 57 204/p 0.04 acre Niranjan
3. Sukdeb Parshi S/O Baghal 57 204/p 0.05 acre
4. Sankar Parshi S/O Baghal 57 204/p 0.05 acre
5. Gobardhan Namasudra 57 204/p 0.05 acre S/O Upendra
6. Mayarani Paul W/O Lt. 57 204/p 0.03 acre Hari Mohan
7. Santa Bhowmik W/O Lt. 57 204/p 0.03 acre Sukumar
8. Sunil Biswas S/O of 57 204/p 0.03 acre Balaram
9. Pradip Majumder S/O 57 204/p 0.03 acre Pratap
10. Rupak Deb S/O Birendra 57 204/p 0.02 acre
11. Mangal Das S/O of 57 204/p 0.04 acre Kachucherra
12. Anita Sen W/O Sarada 57 204/p 0.03 acre
13. Momota Roy W/O Bhanu 57 204/p 0.04 acre ranjan
14. Kanan Deb W/O Lt. Anil 57 204/p 0.04 acre Total 0.51 acre Sri David Halam, DC is hereby instructed to start the process of restoration after the expiry of appeal period before next to this court.
The case is hereby disposed of."
Further appeals and the revision by the petitioners before the State Revenue Authorities failed upon which present petition has been filed.
Appearing for the petitioners learned counsel raised a single contention namely, that as per the Full Bench decision of this Court in case of Smt. Hemalata Mallik & Others v. The State of Tripura & Others reported in MANU/TR/0171/2014, any such infraction in transfer of the rights in land from tribal to non-tribal which has taken place prior 01.01.1969, cannot be examined by the Revenue Authorities. He submitted that in the present case the rights in land were transferred with possession under the said un- registered deed dated 16.06.1967 and therefore the ratio laid down by the decision of the Full Bench of this Court in case of Smt. Hemalata Mallik (supra) would squarely apply. Page 4 of 7
On the other hand learned counsel for the heirs of original owner submitted that the petitioners failed to establish that the transaction of transfer of land had taken place prior to 01.01.1969. As per the Full Bench decision of this Court in case of Smt. Hemalata Mallik (supra) the onus lies on the transferees to establish this vital aspect. The so called un-registered deed dated 16.06.1967 was not produced before the SDM. The SDM had therefore correctly proceeded to hold that the transfer was illegal.
These contentions were also supported by the learned counsel for the State Government. We have also heard the learned counsel representing the heirs of deceased Monoranjan Chakraborty.
Before adverting the facts on record we may briefly refer to the decision of this Court in case of Smt. Hemalata Mallik (supra) the Full Bench in the said case had held and observed as under:
"13. What the Sixth Amendment has done is to replace subsection (3) by Section 187B and make it more elaborate. The cutoff date however, still applies. The power of the revenue officer however, is still limited to transfers of land which took place after 1st January, 1969 and the revenue officer has no jurisdiction or authority in respect of transfers of land which took place prior to 01.01.1969. We, may, therefore, conclude by saying that though the transfers of land made in violation of Section 187 after the enactment of the TLR & LR Act, 1960 may be invalid, in respect of those transfers of land which took place prior to 01.01.1969 the revenue officer will have no jurisdiction to pass an order of eviction of the non-tribal. He shall also have no jurisdiction to order restoration of possession to the tribal.
14. However, at the same time, we may clarify that merely because a defence is raised that a transfer had taken place prior to 01.01.1969 that will not oust the jurisdiction of the revenue officer. He will have the jurisdiction to decide whether any transfer of land actually took place prior to 01.01.1969, or not. He shall have to decide this question on the basis of evidence led before him.
15. The word „transfer‟ for the purpose of Section 187, 187B, 187C and 187D has been explained in explanation to sub Section (2) of Section 187D of the Act which Page 5 of 7 includes parting with fully or partly of ownership or possession of any land or any interest therein in any other manner whatsoever, apart from transfer by means of sale, mortgage, lease, exchange and gift etc. So, transfer of land between tribal to non-tribal, in whatever manner may be, even if illegal and in violation of restriction imposed under Section 187 of the Act, restoration cannot be ordered by revenue officers if such transfer held before 01.01.1969.
16. We may also clarify that the transfer prior to 10.01.1969 may not necessarily be by a written document or by a registered deed. There could obviously be no registered deed because such a deed would be invalid. There may have been illegal transfers but if the transferee establishes by leading cogent evidence that possession of the land was handed over to him prior to 01.01.1969 then obviously the revenue officer will have no jurisdiction. To sum up, the moot point is not whether the transfer is valid or invalid. Even if the transfer is invalid but possession has been transferred prior to 01.01.1969 the Revenue officer will have no jurisdiction in the matter. To give an example, if the non-tribal transferee of land from a tribal shows by leading evidence, that he has constructed a house on the land prior to 01.01.1969 the revenue officer will have no jurisdiction, whether the land be transferred validly or not.
17. In this view of the matter, we answer both the questions by holding that the 6th Amendment to the Tripura Land Revenue and Land Reforms Act, 1960 does not in any manner change the cutoff date, 01.01.1969. The second question is answered by holding that if transfer of the land has been made by a tribal to non- tribal in violation of the Act prior to 01.01.1969 then the same cannot be restored by the revenue officer acting under the Tripura Land Revenue and Land Reforms Act, 1960."
In the nutshell the Court thus held that if transfer of the land has been made by a tribal to non-tribal in violation of the said Act prior to 01.01.1969, then the Revenue Officer acting under the said Act cannot restore the original possession. While saying so, the Court also emphasised that merely because a defence is raised that the transfer has taken place prior to 01.01.1969, will not automatically oust the jurisdiction of the Revenue Officer. He will have jurisdiction to decide whether infact the land was actually Page 6 of 7 transferred prior to 01.01.1969 or not which question he will decide on the basis of evidence on record.
In the present case, the question had arisen whether the transfer of land from tribal to non-tribal did actually take place prior to 01.01.1969. It has all along been the case of the petitioners the purchasers of land from deceased Monoranjan Chakraborty, that the said Monoranjan Chakraborty had acquired the title in the land prior to 01.01.1969 with possession. The Revenue Inspector in his report has referred to the said un-registered document dated 16.06.1967 and concluded that by virtue of the judgment of Full Bench in case of Smt. Hemalata Mallik (supra) the revenue inquiry would not be maintainable. It will always open for the SDM to overrule these findings of the Revenue Inspector which were in the nature of a report of an inquiry conducted by him. However, the SDM has proceeded to invoke the powers under the said Act without coming to a crucial conclusion that the transfer of land in question took place after 01.01.1969. In other words he neither accepted the stand of the petitioners that deceased Monoranjan Chakraborty acquired the title in land prior to 01.01.1969, nor rejected it.
Under these circumstances in our opinion the impugned order of the SDM and all subsequent orders confirming the said order must be set aside. The SDM must pass a fresh order after hearing both sides again. The Revenue Inspector has referred to a copy of the un- registered deed dated 16.06.1967 being part of the record. The subsequent document Annexure-A/2 under which allegedly the predecessors of respondent No. 4 had executed a registered deed admitting the contents of the earlier un-registered deed, was not produced. It would be open for the petitioners to produce copies of Page 7 of 7 both documents Annexures-1 & 2 namely the un-registered deed dated 16.06.1967 and the subsequent registered deed admitting the contents thereof before the SDM. However, since the petitioners had also failed to produce these documents which they now seek to rely upon before us, they must pay cost to the respondent No. 4. We also find that the revenue entries recording the possession of deceased Monoranjan Chakraborty needs to be properly perused and appreciated.
In the result, the petition is allowed impugned order dated 19.08.2015 of the SDM is set aside. Consequentially all the appellate and revisional orders confirming the said also stand nullified. The proceedings are remanded to the SDM for fresh consideration and disposal in accordance with law. The petitioners shall pay cost of Rs. 15,000/- (fifteen thousand) to the respondent No. 4 within a period of two weeks from today.
(ARINDAM LODH), J (AKIL KURESHI), CJ s A.Ghosh