Tripura High Court
Unknown vs The State Of Tripura on 17 February, 2017
Author: Chief Justice
Bench: Chief Justice
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.207/2010
1. Sri Kamal Dey,
Son of Sri Bidhu Ranjan Dey,
2. Sri Prabir Dey,
Son of Late Shib Charan Dey,
3. Sri Nani Gopal Banik,
Son of Late Ruhini Kumar Banik,
4. Sri Manish Chakraborty,
Son of Sri Harinarayan Chakraborty,
5. Sri Amit Sankar Dey,
Son of Late Ranjit Kumar Dey,
6. Sri Sumit Sankar Dey,
Son of Late Ranjit Kumar Dey,
7. Sri Vidyasagar Debnath,
Son of Lt. Haripada Debnath,
8. Sri Sudhir Kumar Ghosh,
Son of Lt. Monmohan Ghosh,
9. Smti. Jyotsna Majumder,
W/o Sri Arun Kumar Majumder,
10. Sri Narayan Chandra Bhowmik,
Son of Late Harendra Ch. Bhowmik,
11. Sri Ashit Kar,
Son of Lt. Sudhangshu Kar,
12. Sri Samir Roy/Prabir Roy,
Sons of Sri Nagesh Roy,
13. Sri Sudhir Chandra Das,
Son of Late Mahin Ch. Das,
14. Sri Rakhal Datta,
Son of Lt. Nepal Ch. Datta,
15. Sri Brajalal Roy,
Son of Late Biharilal Roy,
16(a). Smti. Mridula Debnath,
W/o. Sri Jaharlal Debnath,
16(b). Smti. Ira Debnath,
W/o. Sri Hiralal Debnath,
17. Sri Sudip Kumar Dey/Pradip Kumar Dey,
Sons of Late Harendra Kumar Dey,
18. Sri Chandan Kr. Debnath,
Son of Sri Tarani Kanta Debnath,
WP(C) NO.207/2010 Page 1 of 23
19. Sri Prafulla Kumar Debnath,
Son of Late Suresh Ch. Debnath,
20. Sri Amulya Debnath,
Son of Lt. Suresh Ch. Debnath,
21. Sri B.K. Bhattacharjee,
Son of Sri Bholanath Bhattacharjee,
22. Sri Khokan De,
Son of Late Shibcharan Dey,
23. Smti. Hriday Bala Das,
Wife of Sri Manmohan Das,
24. Sri Binay Ranjan Roy,
Son of Late Gopika Ranjan Roy,
25. Sri Bishnu Kr. Chakraborty,
Son of Lt. Jogesh Chakraborty,
26. Sri Haripada Das,
Son of Lt. Raicharan Das,
27. Sri Ajit Nama,
Son of Late Prafulla Nama,
28. Smti. Kamala Bhowmik,
Wife of Sri Narayan Bhowmik,
29. Smti. Uma Debnath,
Wife of Sri Matilal Debnath,
30. Sri Subal Ch. Majumder,
Son of Lt. Sarat Ch. Majumder,
31. Sri Santanu Gope,
Son of Sri Keshab Ch. Gope,
32. Sri Naresh Chakraborty,
Son of Late Jatindra Mohan Chakraborty,
33. Smti. Arati Dey,
Wife of Sri Sunil Ch. Dey,
34. Smti. Santi Rani Choudhury,
Wife of Lt. Gouranga Prasad Choudhury,
35. Smti. Gita Rani Saha,
Wife of Sri Haricharan Saha,
36. Sri Sadhan Dey,
Son of Lt. Kolendra Ch. Dey,
37. Sri Sunil Ch. Dey,
Son of Late Debendra Ch. Dey,
38. Sri Nirmal Chandra Debnath,
Son of Lt. Girish Chandra Debnath,
WP(C) NO.207/2010 Page 2 of 23
39. Sri Suresh Ch. Shil,
Son of Late A.K. Shil,
40. Sri Hari Charan Saha,
Son of Lt. Chand Mohan Saha,
41. Sri Bholanath Bhattacharjee,
Son of Lt. Radhanath Bhattacharjee,
42. Sri Satyaranjan Sutradhar,
Son of Late Rajendra Sutradhar,
43. Sri Babul Debnath,
Son of Lt. Prafulla Debnath,
44. Sri Narayan Banik,
Son of Late Lalit Mohan Banik,
45. Sri Bipul Chandra Dey,
Son of Lt. Bhajan Chandra Dey,
46. Sri Dulal Majumder,
Son of Lt. Sridam Majumder,
47. Sri Madhusudan Saha,
Son of Late Prafulla Saha,
48. Smti. Kalyani Chakraborty,
Wife of Lt. Haradhan Chakraborty,
49. Sri Chandmohan Saha,
Son of Late Manmohan Saha,
50. Sri Narayan Debnath,
Son of Lt. Manohar Debnath,
51. Smti. Sankari Nama,
Wife of Sri Ajit Nama,
52. Sri Shyamal Dey,
Son of Late Joy Chandra Dey,
53. Sri Swapan Podder,
Son of Lt. Chunilal Podder,
54. Smti. Jhunu Rani Dey,
Wife of Sri Bidhu Ranjan Dey,
55. Sri Mantu Sarkar,
Son of Lt. Sashi Bhushan Sarkar,
56. Smti. Sangita Choudhury (Rakshit),
Wife of Lt. Kamal Choudhury,
57. Smti. Maya Rani Das,
Wife of Sri Girendra Lal Das,
58. Sri Narayan Ch. Lodh,
Son of Late Bipin Chandra Lodh,
59. Sri Sambhu Ch. Lodh,
Son of Lt. Bipad Ch. Lodh,
WP(C) NO.207/2010 Page 3 of 23
60. Smti. Chanu Rani Naha,
Wife of Sri Tapan Kumar Naha,
61. Sri Biswanath Lodh,
Son of Sri Narayan Lodh,
62. Sri Santanu Gope,
Son of Sri Keshab Chandra Gope,
63. Sri Gouranga Chandra Shil,
Son of Late Shital Chandra Shil,
64. Smt. Nilima Das,
Wife of Sri Anil Chandra Das,
65. Sri Prabir Kanti Goswami,
Son of Sri Parimal Kanti Goswami,
All are residents of -
Vill. & P.O. Siddhi Ashram,
P.S. Amtali,
Dist. West Tripura.
..... Petitioners.
-: Versus :-
1. The State of Tripura,
Represented by the Commissioner to the
Government of Tripura,
Revenue Department,
Agartala.
2. The District Magistrate & Collector,
West Tripura District,
Agartala.
3. The Sub-Divisional Magistrate,
Bishalgarh Sub-Division,
Bishalgarh, West Tripura.
4. Sri Chitta Ranjan Debbarma,
Son of Late Thakur Lalit Mohan Debbarma,
5. Smti. Chitra Debbarma,
Wife of Late Biswa Ranjan Debbarma,
6. Sri Punyakrit Debbarma,
Son of Late Biswa Ranjan Debbarma,
7. Sri Sabyasachi Debbarma,
Son of Late Biswa Ranjan Debbarma,
8. Sri Ranadhir Debbarma,
Son of Late Biswa Ranjan Debbarma,
Sl.No.4 to 8 are residents of -
Jagannath Bari Road, Krishnanagar,
P.O.-Agartala-799001,
P.S. West Agartala,
Dist. West Tripura.
WP(C) NO.207/2010 Page 4 of 23
9. Sri Madhab Debbarma,
10. Sri Krishna Debbarma,
11. Sri Gurudas Debbarma,
12. Sri Haridas Debbarma,
13. Sri Nishi Debbarma,
14. Sri Nitai Debbarma,
15. Sri Nimai Debbarma,
Sl.No.9 to 15 are the sons of-
Late Rajani Mohan Debbarma,
16. Smti. Nirmala Debbarma,
Wife of Late Rajani Mohan Debbarma,
Sl.No.9 to 16 are residents of-
Badarghat Matri Palli,
P.S. West Agartala,
P.O. Siddhi Ashram,
Dist. West Tripura.
..... Respondents.
BEFORE HON'BLE THE CHIEF JUSTICE Counsel for the petitioners : Mr. P. Roy Barman, Advocate, Mr. S. Bhattacharji, Advocate, Mr. K. Nath, Advocate.
Counsel for the respondents : Ms. A.S. Lodh, Addl. G.A., Mr. A. Bhowmik, Advocate, Mr. D.C. Roy, Advocate.
Date of hearing : 02-02-2017.
Date of Judgment & Order : 17-02-2017.
JUDGMENT & ORDER
The legality of the order dated 15-7-2009 passed by the Second Appellate Authority/Principal Secretary, Revenue Department, Government of Tripura ("SAA" for short) under Section 93, Rule 2(d) of the Tripura Land Revenue and Land Reforms Act, 1960 upholding the order dated 19-9-2007 of the Sub-Divisional Magistrate, Bishalgarh in Case No. 16/06 to 123/06 restoring the possession of the land measuring 3.110 acres to the WP(C) NO.207/2010 Page 5 of 23 respondent No. 4 to 168 ("private respondents" for short) is called into question in this writ petition.
2. Though the pleadings of the parties have become more and more voluminous over the years, the facts materials for disposal continue to lie on a narrow compass. The private respondents filed an applications before the Sub-Divisional Magistrate/Bishalgarh Sub-Division (respondent No. 3) for restoration of a block of land measuring 4.49 acres recorded in Khatian No. 2019 under Badharghat Sheet No. 5 allegedly owned by their predecessor, namely, the late Thakur Lalit Mohan Debbarma claiming that the land was illegally occupied by the petitioners in violation of the provision of Section 187, Tripura Land Revenue and Land Reforms Act, 1960 ("the Act" for short). According to the petitioners, a market of 50 years old is standing on the said land upon which all of them or their predecessors are running shops and carrying on their businesses for maintaining their livelihood. On the basis of the application, the respondent No. 3 drew up a proceeding and registered them as Case No. 16/06 to 123/06 under Section 187 of the Act against 108 shopkeepers including the petitioners. The petitioners appeared before the respondent No. 3 and apprised him that they had been inducted in the said market long ago, i.e. prior to 1-9-1969 and have since been carrying on their businesses openly without any interruption from anyone and adversely as the rightful owner thereof.
3. It is the case of the petitioners before the SDM/Bishalgarh that the land was initially a jungle and the late Rajani Mohan Debbarma, the predecessor of the private respondents, had cleared the jungle about 50 years back and founded a market by allotting pieces of lands for erecting shops thereon under the name and style of "UDIYAMAN BAZAR' and initiated the Bazar Committee for conducting business security in the market. Except for the said Rajani Mohan Debbarma, since deceased, who had some control over the land, neither the private respondents nor their WP(C) NO.207/2010 Page 6 of 23 predecessors ever had any possession over the same where the market is situated. As the private respondents had already been ousted of their possession before 1-9-1969, they cannot claim restoration of such lands to them. Notwithstanding the aforesaid factual position, the respondent No. 3 passed the said order dated 19-9-2007 directing the restoration of possession of the said lands to the private respondents without any legal basis and illegally.
4. Aggrieved by the said order, the petitioners along with others preferred a revision petition U/s 95 of Act before the District Collector, West Tripura, which was registered as Revision Application No. 1 of 2007. The District Collector, however, by the order dated 17-4-2008 dismissed the revision application without recording any finding on the issues raised by the petitioners and merely mechanically affirmed the findings of the SDM/Bishalgarh. Again, aggrieved by this order, the petitioners preferred a second appeal being Second Appeal No. 4/2nd Appl/Sec/Rev/08 U/s 93(2)(b) of the Act. The second appeal preferred by the petitioners was again dismissed by the Second Appellate Authority by his order dated 15-7-2009, as contended by them, without proper application of mind and in a cryptic manner. This prompted the petitioners to approach this Court under Article 226 of the Constitution to redress their grievance.
5. The writ petition is contested by the State-respondents and the private respondents by filing their respective affidavits. It is contended by the answering respondents that the writ petition involves serious disputed questions of fact, which cannot be adjudicated by this Court in exercise of its writ jurisdiction. On merit, the answering respondents submit that the petitioners are unable to produce any documentary document to substantiate their claims. On the contrary, it is the private respondents, who could produce one Khatian bearing No. 2111 and also revenue receipt No. 017740 dated 26-4-1989. The order dated 19-9-2007 was passed by the Sub-Divisional Magistrate, Bishalgarh on the basis of the petition and WP(C) NO.207/2010 Page 7 of 23 documents submitted by the private respondents and also on the report submitted by the Deputy Collector and Magistrate, Dukli and Teshildar, Dukli Teshil Kachari. It is pointed out by the answering respondents that the suit land measuring 3.110 acres (as per D.C.M's Report) out of 4.49 acres as claimed by the private respondents are illegally possessed by the petitioners and the remaining land measuring 1.480 acres are lying vacant under different classification as per report of Tehshildar, Badharghat Tehshil Kachari. Therefore, the suit land measuring 3.110 acre would be restored to the private respondents; the Deputy Collector and Magistrate, Dukli was accordingly directed to take appropriate steps for restoration of physical possession of the suit land to them. Aggrieved by this, the petitioners filed an appeal U/s 97(2) of the Act before the District Collector, West Tripura for quashing the said order dated 19-9-2007 in Restoration Case No. 16/2006 to 123/2006 under Section 187 of the Act. The appeal was dismissed on 17-4-2008 by the District Collector whereupon they preferred second appeal U/s 93(2)(b) of the Act before the Second Appellate Authority (Principal Secretary, Revenue) challenging the order dated 17-4- 2008 and the same was registered as 4/Second Appeal/ Secretary/ Revenue/08. After hearing the parties, the Second Appellate Authority also dismissed the appeal by his order dated 15-7-2009 by holding that there was no substantial question of law or any other matters which warranted a review of the order of the District Collector. As the Second Appellate Authority had taken into account all aspects of the matter before dismissing the second appeal, that too, after hearing the parties, there is no infirmity in the impugned second appellate order calling for the interference of this Court.
6. The private respondents in their affidavit deny that a 50 years old market is situated on the suit land or that all the petitioners or their predecessors were shop keepers in the said market or that they are carrying on their business for maintaining their livelihood. It is pointed out by the answering respondents that their predecessor, namely, late Thakur Lalit WP(C) NO.207/2010 Page 8 of 23 Mohan Debbarma was a famous member of Tripura Royal family had a farm house a land measuring 52.05 acres along with the disputed land, which was popularly known as Lalit Thakur's Khamar Bari to the Local public. Cultivation of various fruits such as pineapples and other seasonal crops were carried on in the said farm house by labourers engaged by the owner of the land. While the said land was under the peaceful enjoyment of the owner, it was requisitioned by the State Government under the Defence of India Act for efficient military operation during the 1965 War, and possession of the entire land was accordingly taken over by the Army. Possession of the said land was handed over to the owner i.e. the answering respondents in the month of July, 1970 by paying due compensation to them. According to the answering respondents, the said land measuring 52.05 acres including the suit land was inherited by his two sons, namely, Biswa Ranjan Debbarma and Chitta Ranjan Debbarma in equal shares after the death of the late Thakur Lalit Mohan Debarrama. The State- respondents by the Notification dated 11-12-1985 acquired in accordance with the provisions of the Land Acquisition Act an area of land measuring 47.26 acres leaving 4.49 acres at the instance of the Oil and Natural Gas Corporation Ltd., Ltd., Agartala. The said 4.49 acres of land was finally recorded in the settlement Khatian No. 2111 in the name of Biswa Ranjan Debbarma which comprise of 12 plots, which as mentioned in Khatian No. 2111 as 6822 to 6833.
7. It is the further case of the answering respondents that a revenue survey under the Act was carried out by the Government of Tripura and in the course of which, the settlement officials found that several non-tribals had illegally occupied the suit land and a market was set up by the unauthorized occupiers in a major portion of the suit land and carried on business thereon. In the revised Khatian, the names of unauthorized occupiers were recorded in Column No. 24 by indicating the year from which they are in occupation; in some Khatian, it was written as 1975 and WP(C) NO.207/2010 Page 9 of 23 in other 1980 while in some of the khaitian, it was mentioned as 1971 and so on. It is asserted by the answering respondents that they used to reside within Agartala Town whereas the suit land is situated very close to Agartala Town, but they were not in a position to visit the suit land. So, taking advantage of the situation, the petitioners most illegally entered into the suit land owned by them and set up a market on 3 kanies of their land. Aggrieved by this, they made several representations to the concerned revenue authorities intimating them of the dispossession of their land by the petitioners and for the restoration thereof after evicting them. When no response came, they were constrained to move this Court in WP(C) No. 183/2006 for directing the revenue authorities to restore the suit land to them after evicting the petitioners. This Court by the order dated 12-2-2007 directed the revenue authorities to dispose of the restoration cases within four months from the date of receipt of the order. The respondent No. 3 by the order dated 19-9-2007 directed restoration of the suit land to the extent of 3.110 acres to them as the remaining land was found to be vacant. The answering respondents flatly deny that the petitioners had been inducted in the market long ago and that prior to 1-9-1969, they had been carrying on business without any interruption, etc. If the petitioners claimed that Rajani Mohan Debbarma was in possession of the disputed land and Udiyaman Bazar was in existence as claimed by the petitioners, their names should have been recorded in Column No. 24 of the Settlement Khatian No. 2111; no such names is found in the said Khatian, which was finally published in the month of May, 1974.
8. According to the answering respondents, Rajani Mohan Debbarma had no connection with the disputed land, and they are in possession of the disputed land where the market was claimed to have been situated. It is their submission that the occupation by non-tribals of the disputed land owned by tribal members without any lawful authority is a criminal offence and such occupiers are liable to be penalized. It is submitted by the WP(C) NO.207/2010 Page 10 of 23 answering respondents that the SDM, Bishalgarh extended reasonable opportunity of hearing to the petitioners to adduce evidence and passed the order for eviction of the petitioners from their unauthorized occupations after taking into account the evidence on record adduced by both the parties. It is submitted by the answering respondents that the petitioners failed to produce any evidence to show that they had been in occupation of the disputed land prior to 1-1-1969 and that the said Rajani Mohan Debbarma was never in possession of the disputed land. Therefore, there is no infirmity in the order passed by the SDM, Bishalgarh. Similarly, the District Collector rightly dismissed the first appeal after duly considering the materials on record and on hearing the learned counsel appearing for the parties. The second appeal preferred by them was also rightly dismissed by the Second Appellate Authority. Since the issues raised by the petitioners involve disputed questions of fact, this Court in exercise of its writ jurisdiction cannot adjudicate the same. These are the sum and substance of the case of the private respondents.
9. It is contended by Mr. PR Barman, the learned counsel for the petitioners, that the petitioners were never granted meaningful opportunity of hearing by the SDM, First Appellate Authority and the Second Appellate Authority before passing adverse orders against them, and the case should be remanded to the SDM for fresh enquiry in which the parties should be given the right to adduce oral evidence. Moreover, submits the learned counsel, no evidence was adduced by the private respondents claiming restoration; the decision of the SDM is, therefore, perverse as well as arbitrary. He also contends that in the revisional application, it was vehemently urged by the petitioners that the private respondents seeking restoration of possession could not prove that they were in possession of the disputed land prior to 1-1-1969 and that they were dispossessed by the petitioners or their predecessors-in-interest, namely, Rajani Mohan Debbarma prior to 1-1-1969, but the three foras below completely overlooked or ignored these grounds; this aspect of the matter requires WP(C) NO.207/2010 Page 11 of 23 fresh consideration. It is finally contended by the learned counsel for the petitioners, that there is non-application of mind on the part of the Second Appellate Authority in dismissing the appeal of the petitioners and the impugned orders passed without proper application of mind warrants fresh enquiry; the impugned orders cannot, therefore, be sustained in law. In support of his contentions, the learned counsel for the petitioners relies on the decisions of this Court in Jogendra Sarkar v. District Magistrate, West Tripura in (2001) 2 GLR 133 and Usha Rani Shil and ors. V. The State of Tripura and ors. in WP(C) No. 385 of 2015.
10. Mrs. A.S. Lodh, the learned Government Advocate, appearing for the State-respondents, supports the impugned appellate orders and submits that no interference is called for. According to the learned State counsel, the Second Appellate Court, after extensive hearing of the parties, did not find any substantial question of law or any other matter warranting the review or cancellation of the order of the appellate authority. She, therefore, submits that there is no merit in this writ petition, which is liable to be dismissed. While endorsing the submission of the learned State counsel, Mr. A. Bhowmik, the learned counsel for the private respondents contends that the orders of the revenue authorities including the Second Appellate Authority was passed after observing all the formalities strictly in accordance with the provisions of the Act; all the petitioners were afforded reasonable opportunity of hearing before passing the impugned orders. According to the learned counsel, the facts and circumstances under which the disputed land, which forms a part of and lies within the 52.05 acres, came to be acquired by the late Thakur Lalit Mohan Debbarma, who belonged to the famous member of the Tripura Royal family, how the said land came to be requisitioned by the State Government under the Defence of India Act on behalf of the Army for efficient military operation during the 1965 War and how the same were handed over to private respondents in the month of July, 1970 after payment of due compensation to them have WP(C) NO.207/2010 Page 12 of 23 been explained before the SDM and other appellate authorities. The learned counsel also points out that the names of the unauthorized occupiers were recorded in the revisional Khatian but the years of their occupation were written therein as 1975, 1980 and 1971, but the petitioners deliberately suppressed these vital facts in the writ petition; this alone will entail dismissal of the writ petition. It is the contention of the learned counsel for the private respondents that the petitioners have failed to adduce satisfactory evidence that they had been in occupation of the disputed land prior to 1-1-1969 or that the said Rajani Mohan Debbarma was in ever in possession of the disputed land; as no evidence could be adduced by them in this behalf, all the revenue authorities have rightly disbelieved the case of the petitioners. He, therefore, submits that the writ petition is devoid of merit and is liable to be dismissed. He strongly relies on the decision of the Full Bench of this Court in Smt. Hemalata Mallik and ors. v. State of Tripura and ors, Writ Appeal No. 89 of 2007 to fortify his submissions.
11. I have carefully gone through the pleadings of the parties as well as the records of the revenue authorities. I have also given my anxious consideration to the rival submission advanced on behalf of the parties. In the year 1994, Tripura Land Revenue and Land Reforms Act, 1960 was amended by the "The Tripura Land Revenue and Land Reforms (Amendment) Act, 1994" whereby, among others, Section 187B and Section 187C were inserted therein. The amendment was done to further strengthen the measures to prevent alienation of tribal land and also provide for effective implementation of the provisions for restoration. The amendment not only prohibits transfer of the tribal land to non-tribal but also prohibits "occupation" of tribal land by a non-tribal. For better appreciation of the controversy involved in this writ petition, Section 187B and 187C of the Act as amended in 1994 are reproduced below:
"187B. (1) On or after the 1st January, 1969--- (a) if a transfer of land belonging to a person who is a member of the scheduled Tribes is made in contravention of the WP(C) NO.207/2010 Page 13 of 23 provisions of sub-section (1) of section 187 to a person other than a member of the Scheduled Tribes, a Revenue Officer specially appointed for this purpose by a notification in the Official Gazette, and having local jurisdiction may, notwithstanding anything contained in any other law for the time being in force, on its own motion or on an application made in that behalf, and after giving the transferee and the transferer an opportunity of being heard, by an order in writing evict such or any person claiming under him from such land or part thereof and shall restore the possession of the land to the transferer, or his successor in interest and for this purpose the Revenue Officer may use or cause to be used such force as may be considered necessary.
(b) if any land owned by person belonging to the Scheduled Tribes is occupied by any person who is not a member of the Scheduled Tribes without lawful authority, then the Revenue Officer in the same manner as provided in Clause (a) may restore the possession of such land to the person or successor in interest so dispossessed.
(c) if a person belonging to the scheduled Tribes is in occupation of Government land and eligible for allotment of such land under Section 14 of this Act, parts with possession or is dispossessed there from by a person not belonging to the Scheduled Tribes, then the Revenue Officer in the same manner as provided in clause (a) may restore the possession of such land to that person. Or his successor-in-interest as the case may be and refer to the competent authority under Section 14 of this Act for allotment of the land to such person.
Explanation--For the purpose of this sub-section, the successor-in-interest means heirs, transferee or assignee in accordance with law or custom as applicable.
(2) If any person not being a member of the Scheduled Tribes occupies or possesses the land held by or in occupation of a person belonging to the Scheduled Tribes in any manner as specified in sub-section (1) after the commencement of the Tripura Land Revenue and Land Reforms (Sixth Amendment) Act, 1994 without any WP(C) NO.207/2010 Page 14 of 23 lawful authority he shall be punishable with imprisonment for a term which may extend to two years and also with a fine which may extend to three thousand rupees.
(3) Notwithstanding anything contained in the Code of Criminal Procedure 1973 every offence punishable under sub-section (2) shall be cognizable and non-bailable and wherever any person is arrested and detained in custody in pursuance of provision of this section, the officer-in-charge of the Police Station or Police Officer making the arrest shall forward the person to the Presiding Officer holding the special Court of the jurisdiction and the provision of the Code of Criminal Procedure, 1973 shall apply mutates mutandis for summary trail.
(4) For the purpose of speedy trial of offence under this section the State Government may, after consultation with the High Court by notification constitute as many special Courts s may be considered necessary, each consisting of an Officer not below the rank of a Judicial Magistrate of the First Class.
(5) For the cases referred to in sub-section (2), the Revenue Officer immediately after restoration of land under sub-section (1) shall file a complaint in the special Court constituted under sub-section (4) for action as provided, in sub-section (2).
(6) An appeal shall lie to the High court from every order passed by a special court under this section within sixty days of the passing of such order.
* * * 187C. Notwithstanding anything contained in any other law for the time being in force, the burden of proof for the purpose of section 187B that transfer of land was not made in contravention of subsection (1) of section 187 or occupation of land was not made without lawful authority shall lie on the transferee or occupier, as the case may be."
12. In the instant case, we are concerned with Section 178B(1)(d) of the amended Act, which says that on or after the 1st January, 1969, if any land WP(C) NO.207/2010 Page 15 of 23 owned by person belonging to the Scheduled Tribes is occupied by any person who is not a member of the Scheduled Tribes without lawful authority, then the revenue officer in the same manner as provided in clause(a) may restore the possession of such land to the person or successor-in-interest so dispossessed. Since restoration of possession as contemplated in Section 187B(1)(b) is to be done in the manner prescribed in clause (a) of Section 187B(1), what is required is that both the owner of the tribal land and the occupier of such land shall have to given an opportunity of hearing. It is only after both the parties are given an opportunity of hearing that the revenue officer by an order in writing evict such person from the land in question whereafter possession of the land is to be restored to the person or successor-in-interest so dispossessed. What is the mode of proof to be adopted in a proceeding under Section 187B(1)(b) is again prescribed by Section 187C. Under this provision, it is provided that irrespective of any provision to the contrary provided for in any other law for the time being, the burden of proof for the purpose of Section 187B that occupation of land was not without lawful authority strictly lies upon the occupier.
13. In any adjudicatory process, the giving of an opportunity of hearing to the concerned party to rebut the allegations made against him and of presenting his own case is an essential requirement and forms a part of the principles of natural justice. In other words, it is the requirement of natural justice that an adjudicatory body cannot make a decision adverse to an individual without giving him an effective opportunity of meeting any allegations against him and presenting his own case. However, rules of natural justice are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kinds of domestic tribunals and enquiries. What the courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority WP(C) NO.207/2010 Page 16 of 23 had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers composition of the tribunal and the rules and regulations under which it functions. A court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent, there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. In Keshav Mills Co. Ltd. v. Union of India, (1973) 1 SCC 380, the Apex Court held:
"8. ... We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. [See, for instance, the observations of Lord Parker in H.K. (An infant), In re7] It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin6 case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J., observed in Russell v. Duke of Norfolk4 'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth'."7
(1967) 2 QB 617 6 1964 AC 40 4 (1949) 1 All ER 109 (CA) WP(C) NO.207/2010 Page 17 of 23
14. I may also refer to P.D. Agrawal v. SBI, (2006) 8 SCC 776 where the Apex Court approved the observations made by Mukharji, J. in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 in the following words:
(P.D. Agrawal case) "30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.
31. In Ajit Kumar Nag v. Indian Oil Corpn. Ltd.10 a three-
Judge Bench of this Court opined:
'44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post- decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge11.) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: "'To do a great right' after all, it is permissible sometimes 'to do a little wrong'." (Per Mukharji, C.J. in Charan Lal Sahu v. Union of India9) While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than 'precedential'."10
(2005) 7 SCC 764 11 (1723) 1 Str 557 WP(C) NO.207/2010 Page 18 of 23
15. Thus, what stands out from the various decisions of the Apex Court extracted above is that the approach of the Court in dealing with the contention with respect to denial of opportunity of hearing should be pragmatic rather pedantic and practical rather than 'precedential'. Under the provisions of the Act, the procedure for restoration of a land belonging to a tribal occupied by a non-tribal without lawful authority is similar to the one prescribed in clause (a) of Section 187(1) i.e. "after giving the transferee and the transferor an opportunity of being heard". From the materials available on record, it is seen that notices were issued upon the petitioners by the SDM, Bishalgarh before the passing of the order dated 19-9-2007 in Case No. 16/06 to 123/06 as evident therefrom. It would appear from the order dated 19-9-2007 that the SDM relied upon the field enquiry report dated 18-6-2006 of the Deputy Collector & Magistrate/Dukli and, accordingly, held that Sri Madhab Debbarma and others had no possession on the disputed land as he could not produce any documentary evidence and, as such, their claim was not maintainable due to lack documentary evidence. The SDM also referred to the decision dated 20-8-2007 of the District Collector, West Tripura in Rev Case No. 284/07 U/s 93(1)(b) of the Act wherein he took note of the fact that the petitioners, despite giving opportunity to them, did not file written objection against the enquiry report submitted by the Deputy Collector and Magistrate, Dukli. It was after considering all aspect of the matter that the SDM passed the order for restoration of the disputed land to the private respondents. At this stage, I may also reproduce below the order dated 17-4-2008 passed by the District Collector, West Tripura in Rev. Case no. 1/07, which is an appeal U/s 93(1) of the Act preferred by the petitioners:
"On perusal of the case proceeding of the Restoration Case No. 16/07 to 123/07 U/s 187 of the TLR & TR Act, 1960, it is revealed that the 2nd Party Appellants and the pro forma respondents produced an unregistered sale deed of 1974 before the court of SDM, Bishalgarh in support of their claim of purchase of land WP(C) NO.207/2010 Page 19 of 23 measuring 3 Kani from the Ist Party respondents. They have produced the same deed in the instant appeal case. But the 1st Party Respondents have initially denied any sale of land Rajani Debbarma.
In this connection, it may be mentioned that as per provisions of the Indian Registration Act, XVI of 1908, any immovable property at a value more than Rs. 100/-
cannot be transferred without a registered instrument.
As such, the registered ale deed produced by the 2nd Party Appellants and the pro forma Respondents is not a valid document. Therefore the contentions of the Appellants that Rajani Mohan Debbarma and after his death his legal heirs was/are the true owner(s) of the said land, that the appellants are the tenants of the true owner(s), that the land was not transferred from Tribal to Non-Tribal and as such the same cannot come under the purview of Section 187 of TLR & LR Act 1960 or that the land was transferred to Rajani Mohan Debbarma by the 1st Party Respondents before 1-1-1969 and so on cannot be accepted.
The allegations as raised by the 2nd party Appellants and the proforma Respondents that the 1st Party Respondents did not appear for registration of the sale deed after receiving the consideration money is beyond the jurisdiction of this Court. The 2nd Party Appellants and the pro forma Respondents have also not produced any documentary evidence showing such thing had actually happened and legal action was taken against the 1st party Respondents for the default.
It has already been stated herein above that the Appellants and the proforma respondents preferred revision petition U/s 95 of the TLR & LR Act 1960 vide Case No. 284/07 before this Court against the order dated 10-7-2007 passed by the SDM Bishalgarh in the Restoration cases. They were allowed vide order date 20- 8-07 to submit additional written objection against the inquiry report of DCM, Dukli before the Court of SDM, Bishalgarh. But they failed to submit the same.
In this regard, the 2nd Party Appellants have stated in the Appeal petition that SDM Bishalgarh did not give WP(C) NO.207/2010 Page 20 of 23 any scope to file additional written statement as allowed by this court. The Restoration Cases were disposed of by SDM, Bishalgarh hastily on 19-9-07 by calling the appointed lawyer for hearing over telephone on the same day.
During the stage of the hearing of the instant appeal petition, the proforma Respondents were allowed time on their prayer for submission of written statement. But they have failed to submit the same in spite of giving chances for several times.
It is clear from the above discussions that the 2nd Party Appellants and the pro form Respondents have miserably failed to prove their cases by producing valid documentary evidence.
Hence, the appeal is disallowed."
16. It may be noted that the second appeal against the aforesaid appellate order was also dismissed by the impugned order on the ground that there is no substantial question of law or any other matter meriting consideration of the appeal. I have to quote extensively from the said order of the 1st Appellate authority since the main thrust of the submission of the learned counsel for the petitioners is that no effective opportunity of hearing was afforded to the petitioners. In my judgment, there is no substance in this contention. Even if the order of the SDM/Bishalgarh was perfunctory and left much to be desired, the deficiencies therein, if any, have been made up by the elaborate order of the 1st Appellate authority. After all, an appeal is a continuation of the original proceeding. The 1 st Appellate Authority has the power to re-appreciate the evidence or re-hear the entire matter. In my judgment, this is not a case in which no effective hearing was denied to the petitioners; they have been granted a reasonable opportunity of presenting their cases and that the Revenue authorities have acted fairly, impartially (there is no whisper of allegation of bias against the revenue authorize in this behalf) and reasonably. In fact, the enquiry report of DCM, Dukli, against which serious grievances were made by the learned counsel for the petitioner, was not even challenged by the petitioners even WP(C) NO.207/2010 Page 21 of 23 though they were granted opportunities to file written objection against it. It is now too late in the day to challenge the validity of the said enquiry report. Thus, the orders of the Revenue authorities, appellate or otherwise, have clearly mentioned that an opportunity was given to the petitioners and that they were heard. The Revenue authorities were not expected to hear the case like a civil suit. What they did was to conduct an enquiry by observing the principles of natural justice. The validity of the unregistered sale deed was adequately examined by the revenue authorities and ruled it as inadmissible and, in my opinion, rightly so. The petitioners, therefore, have no legitimate grievance to make against the fairness and impartiality, or the legality or otherwise of the decisions, of the Revenue authorities. Therefore, no fault can be found with the findings recorded by the Revenue authorities including the Second Appellate Authority.
17. That apart, under the provision of Section 187C of the Act, it is clearly provided that the burden of proving that the occupation of the disputed land was not made without lawful authority lies on the occupier. In the light of this legal position, the burden of proof lies on the petitioners to prove that their occupation of the disputed land was not without lawful authority. Now, in the first place, it has been categorically asserted by the petitioners that the names of the petitioners were recorded in column No. 24 of the Khatian as unauthorized occupiers in the years 1975 or 1980 or 1971 and so on. In my opinion, this is hardly important. The cut-off date, namely, "On and after the 1st January, 1969" in Section 187B(1)(a) equally governs clause (b) with the result that if the occupation had taken place prior to 1-1-1969, they cannot be ousted even if they have no lawful authority to occupy the disputed land. The occupation of the land belonging to a member of the Scheduled Tribes by a person who is not a member of the Scheduled Tribes, in order to escape from the mischief of Clause (b) of Section 187B(1), shall have to take place prior to 1-1-1969 or if it took place on or after 1-1-1969, it shall have to be an occupation with lawful authority. In other words, if the occupation is proved to have taken place WP(C) NO.207/2010 Page 22 of 23 prior to 1-1-1969, it shall not be necessary for the occupier to show that they had occupied it with lawful authority. However, if their occupation took place on or after 1-1-1969, they must prove that they occupied the land belonging to a member of the Scheduled Tribes with lawful authority. Thus, by the operation of Section 187C, the burden of proving that the petitioners herein had occupied such land prior to 1-1-1969 lie upon them or the burden of proving that they did occupy such land on or after 1-1- 1969 with lawful authority, will lie upon the petitioners. In the instant case, the petitioners have miserably failed to discharge the burden of proof that they had either occupied the disputed land prior to 1-1-1969 (in which case the need for showing that they had lawful authority to occupy the same would stand obviated), or they occupied the same after 1-1-1969 with lawfully authority. Without discharging such burden of proof before the Revenue authorities, they were well within their power to dismiss the case of the petitioners as there is no perversity in their findings. The law is now settled that in a judicial review under Article 226 of the Constitution, if the view taken by the authorities is a possible view, such view cannot be substituted by a writ court on the ground that there could be another view, which is, or could have been, a better view.
18. For the reasons stated in the foregoing, there is no merit in this revision petition, which is, accordingly, dismissed. The parties are, however, directed to bear their respective costs throughout. Interim order, if any, stands vacated.
CHIEF JUSTICE WP(C) NO.207/2010 Page 23 of 23