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Judgment
Deepak Gupta, C.J.—This full Bench has been constituted to decide the following questions:
(i) Whether the 6th Amendment to the Tripura Land Revenue and Land Reforms Act, 1960(in short TLR & LR ACT, 1960) in any manner changes the cut off date of 01.01.1969?
(ii) Whether in terms of Section 187(3) of the TLR & LR ACT, 1960 the possession of the lands which were transferred by tribals to non-tribals prior to 01.01.1969 can be restored?
Since it is the provisions of the Tripura Land Revenue and Land Reforms Act, 1960 which are to be interpreted we may make reference to certain provisions of the Act. In 1960, Tripura was a Union Territory and the Act in question was enacted by the Parliament on 21st September, 1960.
Section 187 of the Act, as originally enacted, reads as follows:
A bare reading of this Section makes it absolutely clear that after enforcement of the Act transfer of land by a person who is a member of the Scheduled Tribes would not be valid unless it was transferred to another member of the Scheduled Tribes or with permission of the Collector or by way of mortgage of land to a co-operative society. Other than these three exceptions any transfer of land by a member of a Scheduled Tribes would not be valid. However, the Act did not lay down any provision as to what would happen if such a transfer was made.
To remedy the aforesaid situation, the TLR & LR Act was amended by the Second Amendment Act in the year 1974 which reads as follows:
The Act was again amended in the year 1994 but came into effect on 18.10.1996. It is not necessary to refer to all the amendments. However, sub-section (3) of Section 187 was deleted and sub-section 4 as it earlier stood became sub-section (3). In addition thereto after Section 187A Section 187B to 187F were inserted which read as follows:
187.B. (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 provisions of subsection (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 u/s 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 u/s 14 of this Act for allotment of the land to such person.
Explanation--For the purpose of this subsection, 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 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 as 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.
187.C. 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 sub-section (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.
187.D. Where the possession of any land is restored to a person belonging to the scheduled Tribes under any of the above provisions is retransferred by the person belonging Scheduled Tribes in contravention of section 187 and the Revenue Officer specially empowered has reasons to believe that the land holder belonging to Scheduled Tribes shall not be in a position to retain the land so retransferred even after subsequent restoration, the Revenue Officer shall evict the person to whom the land was re-transferred and entrust the management of the same to a Committee as may be constituted by the State Government with scheduled Tribes members and government Officials for a period of one year and if, after the expiry of this period, the Committee holds that the land holder belonging to the scheduled Tribes shall not be in a position to retain the land if restored, then such land shall vest to the Government free from all encumbrances and the Collector shall allot the land to the eligible tribals of the area under such condition as may be prescribed.
(2) The manner of constitution conduct of business, powers and function of the committee referred to in sub-section (1) shall be such as may be prescribed.
Explanation:- For the purpose of Section 187, 187B, 187C an 187D, the word ''transfer'' shall mean sale, mortgage, lease, exchange and gift as defined in Transfer of property Act, 1882 and include parting with fully or partly of ownership or possession of any land or any interest therein in any other manner whatsoever but shall not include the requisition and acquisition of land under any law for the time being in force.
187.E. Notwithstanding anything contained in any law for the time being in force, a petition for restoration of possession of land by a person belonging to the Scheduled Tribes against a person not belonging to the scheduled Tribes shall lie at any time.
Thus, u/s 187(1), transfer of land by members of the Scheduled Tribes is still invalid. Now, in addition to mortgages to Co-operative bank, mortgages to banks or to the Central or State Government have also been brought within the ambit of Clause C of sub-section (1) of Section 187. However, the co-operative society or the bank can also not transfer the land to a non-Scheduled Tribe person without permission of the Government.
We are mainly dealing with sub-section (3) as it stood prior to the Sixth Amendment which provided that if land belonging to a member of Scheduled Tribe is transferred on or after 01.01.1969 in contravention to the provisions of sub-section (1) then a Revenue Officer duly appointed by the Government can, after giving an hearing to the transferee, pass an order of ejectment of the transferee or any person claiming under him from such land. Under clause B of sub-section (3) the Revenue Officer was empowered to restore the transferred land in whole or in part to the transferor Scheduled Tribe or his successors.
The provisions of Section 187(3) came up for consideration in number of cases wherein the main issue was whether transfers of land which had taken place prior to 01.01.1969 fell within the ambit of Section 187(B) or not and whether in cases of transfers made before 01.01.1969 the Revenue Officer has any power to order for restoration of the possession.
In Sailen Sarkar @ Sailendra Chandra Sarkar and Others Vs. State of Tripura and Others, a learned single Judge of the Agartala Bench of the Gauhati High Court held as follows:
A reading of Section 187 will clearly indicate that the condition precedent for the exercise of the power by the SDO before making an order for the ejectment and restoration of possession are (1) that the transfer of the land has been made by a tribal in favour of non-tribal, (ii) for making such transfer written prior permission from the Collector had not been obtained and (iii) that the transfer had been effected on or after 1.1.69. Thus, even if above mentioned first two conditions are satisfied still the SDO will have no power to make an order which is contemplated by clause (a) of sub-sec. (3) of Sec. 187 if the third ingredient is not satisfied. In the circumstances power of the SDO to make and order for the ejectment of the transferee and for the restoration of possession in favour of the transferer of the land in question is dependent on the fact that the transfer in has been made on or after 1.1.69. The fact that the transfer was made on 1.1.69 or thereafter thus becomes a jurisdictional fact which has to be established so as to empower the SDO to exercise his power which is contemplated by sub-Clause (a) of sub-sec. (3) of Section 187. If the said fact is not established he will have no power to make such an order.
We are in respectful agreement with the law laid down in the said judgment.
This judgment was followed by another judgment of a learned single Judge of the Agartala Bench of Gauhati High Court in Jogendra Sarkar Vs. District Magistrate and Collector and Others, This judgment was authored by Hon''ble Justice A K Patnaik as his Lordship then was and the learned single Judge held as follows:
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It would be clear from the bare language of sub-section (3)(a) of section 187 of the Act quoted above that transfer of land belonging to a person who is a member of Scheduled Tribe made on or after 1.1.1969 in contravention of provisions of sub-section (1) of Section 187 of the Act is the basis of jurisdiction of the Revenue Officer to pass an order in writing ejecting the transferee or nay person claiming from such land or part thereof. Sub-section 3(b) further states that where the Revenue Officer has passed an order under clause (a), he shall restore the land or any part thereof to the transferor or his successor-in-interest. Since an order under clause(a) of sub-section (3) of section 187 of the Act can only be passed in case of a transfer of land belonging to a person who is a member of Scheduled Tribe on or after 1.1.1969 in contravention of sub-section (1) of section 187 of the Act, an order of restoration under clause (b) of sub-section (3) of section 187 of the Act can only be passed where the transfer of land belonging to a person who is a member of Scheduled Tribe takes place on or after 1.1.1969. Thus for an order under clauses (a) and (b) of sub-section (3) of section 187 of the Act, a finding has to be recorded by the Revenue Officer that the transfer of land in question was made on or after 1.1.1969 and unless such finding is recorded the Revenue Officer cannot either eject the transferee or any person claiming under him from such land or restore the land to the transferee or his successor-in-interest.
The same view was taken in Sridam Chandra Debnath and Another Vs. State of Tripura and Others
............................. The aforesaid provisions make it very clear that even though transfer of land from tribal to non-tribal was invalid with effect from the date of coming into effect of the Act, the provision to restore such land to the tribal has been given effect only in respect of the lands transferred on or after 1.1.1969. In other words, land transferred before 1.1.1969 in violation of Sub-section (1) of Section 187 of the Act would not come within the mischief of the provisions relating to restoration of lands. The date is, therefore, very crucial for the purpose of deciding the issue between the parties.
A Division Bench of the Agartala Bench of the Gauhati High Court in Shri Kalimohan Sahaji and Shri Nilmohan Sahaji Vs. State of Tripura and Shri Lalit Mohan Chakma, decided Writ Appeal No. 73 of 2007. The judgment was authored by one of us (S C Das, J). The Division Bench dealing with the effect of Sixth Amendment held as follows:
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If we carefully and meticulously go through the provisions of sub-sections (1) and (2) of Section 187, both before and after the Sixth Amendment Act, it would appear that any transfer of land belonging to a Scheduled Tribe shall be effected only by a registered instrument. So, any instrument, not being a registered one, has no value in the eye of law and no Court shall recognize such an instrument. The appellants and their predecessor were claiming their right under an unregistered instrument. If that instrument/deed goes, there is nothing for the appellants to show that the transfer was affected before 01.01.1969. Sub-Section (3) of Section 187 was in existence before Sixth Amendment Act came into force. After Sixth Amendment, Sub-Section (3) has been deleted and at present there is nothing to claim that transfer held before 01.01.1969 shall not be disturbed. Clause (b) of Section 187B, as reproduced above, speaks that 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) of Section 187B may restore the possession of such land to the person or successor in interest so dispossessed. According to proviso to Sub-Section (1) of Section 187 of the Act, 1994, a transfer of land from tribal to non-tribal would only be effected strictly under a registered instrument and not otherwise and such registered instrument was to be made with the previous written permission of the Collector and otherwise it would be deemed to be void. In the case in hand, the alleged deed of transfer, effected Nama Charan Chakma in favour of Lalit Mohan Sahaji, as alleged on 04.06.1967, is of no consequence because any such transfer by dint of an unregistered instrument was just void, irrespective of the transaction was before or after 01.01.1969.
The word, ''transfer'' has been defined/explained in Sub-Section (2) of Section 187D, which includes transfer of possession of any land or any interest therein in any manner whatsoever. The decision of the learned Single Judge that the transfer of possession was also a transfer and so it shall come within the purview of the mischief of Section 187, was a correct finding and was according to the law laid down in the Act. It is a settled principle that ''what cannot be done directly, cannot be done indirectly''. While transfer of land between tribal to nontribal has been completely forbidden without a registered instrument with previous permission in writing from the Collector, any instrument in violation of such provision, in whatever manner it may be, is liable to be treated as void ab initio and deserves no consideration in the eye of law. Further, we find that Sub-Section (3) of Section 187, was in existence before Sixth Amendment Act, came into force on 11.02.1996. The writ petition was filed in 1997 claiming advantage of the provisions prescribed in Sub-Section (3) of Section 187, which was not in existence at the relevant point of time of decision of the writ petition. The argument of learned counsel, Mr. Chakraborty, therefore, has no merit at all.
Section 187C has prescribed that the burden of proof is on the transferee or occupier to show that the occupation of land was not made without lawful authority, and as such, burden cannot be shifted on the tribal transferor. The appellants and their predecessor entered their claim based on the impugned unregistered agreement dated 04.06.1967, which has got no legal implication at all. No other evidence adduced by them. Under such circumstances, according to the scheme of law prescribed under the Act, the land was liable to be restored to the tribal Transferee. The argument of learned counsel, Mr. Chakraborty, that since it was not a transfer according to law, whereas the appellants can their predecessor were/are in possession, they cannot be ejected except the procedure prescribed by law, has also stands no merit at all. The provisions, reproduced above, have clearly prescribed the procedure, to restore the land if it is found that the transfer was effected in violation thereof. The impugned order dated 13.02.1996 passed by respondent No. 2, does not suffer from any legal infirmity and therefore learned Single Judge rightly dismissed the writ petition.
The question is whether this judgment requires reconsideration or not.
The main grievance of the appellant is against the following observations in this Judgment:
After 6th amendment sub-section 3 has been deleted and at present there is nothing to claim that transfer held before 01.01.1969 shall not be disturbed.
Here we may make reference to the judgment of the learned single Judge which was upheld by the Division Bench.
The learned single Judge by the impugned judgment held that even if transfers were made by a tribal to non-tribal prior to 01.01.1969 then also the Revenue Officer would have jurisdiction to order the eviction of the non-tribal transferee or his successors and order the restoration of the land to the tribal.
In our view, the judgment of the learned single Judge proceeds on a total misconception of the legal provisions. The learned single Judge erred in distinguishing the law laid down in Salien Sarkar''s case. The learned single Judge proceeded on the basis that even prior to the enactment of the TLR & LR Act in the year 1960 there was some order passed by the ruler of Tripura that transfer of land by tribal to non-tribal was prohibited. The learned counsel appearing before us have stated that they have been unable to find any such order passed by the ruler of Tripura prior to independence. Therefore, we proceed on the assumption that for the first time a blanket ban on the transfer of land by tribals to non-tribals without permission of the Collector was imposed in the year 1960. No royal notification of pre-independence days has been brought to our notice. Therefore, transfer of land by a tribal to non-tribal being became illegal only w.e.f. 21st September, 1960. However, till 1974 the Act did not lay down the procedure which was to be followed in case a tribal transferred his land to a non-tribal. In such a situation, the remedy of a party would be to file a civil suit alone.
In 1974 the Act was amended and for the first time power was given to the Revenue Officer to evict a non-tribal from land transferred to him from a tribal but this was only in respect of transfers of land made on or after 1st January, 1969. Therefore, as held in Sailen Sarkar @ Sailendra Chandra Sarkar and Others Vs. State of Tripura and Others, Jogendra Sarkar Vs. District Magistrate and Collector and Others, and in Sridam Chandra Debnath and Another Vs. State of Tripura and Others the revenue officer had no jurisdiction in respect of transfers which took place prior to 01.01.1969.
The Division Bench in the impugned judgment has held that after the Sixth Amendment made in the year 1994 sub-section (3) has been deleted and, therefore, the revenue officer can exercise jurisdiction also in respect of transfers made before 01.01.1969. This is an apparent mistake which has crept into the judgment because the judgment does not note that the Section 187B which was introduced by the 6th Amendment starts as follows:
On or after 1st January, 196
Therefore, the words ''On or after 1st January, 1969'' have to be read in Clauses A, B, C of sub-section (1) of Section 187B of the Act.
Under sixth amendment, earlier Section 187 was substituted with new provisions of Section 187 and 187B to 187G, as quoted hereinbefore were incorporated and the cutoff date for the exercise of jurisdiction by the revenue officer, in respect of restoration remained unchanged. Sub Section(1) of Section 187B starts with the words "on or after the 1st January, 1979----", clause (a), (b) and (c) to sub Section (1), follows thereafter, meaning thereby the provisions in clauses (a) (b) and (c) are subject to the words quoted above. Therefore, the observation in Kalimohan Sahaji (supra) was an apparent mistake which need to be corrected for the ends of justice.
What the Sixth Amendment has done is to replace subsection (3) by Section 187B and make it more elaborate. The cut off 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.
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.
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 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 u/s 187 of the Act, restoration cannot be ordered by revenue officers if such transfer held before 01.01.1969.
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.
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.
Now, the writ appeal be placed before the appropriate Bench, for disposal.