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1988 DIGILAW 85 (GAU)

Saraju Bardhan v. State of Tripura & Ors.

1988-06-04

J.M.SRIVASTAVA, S.N.PHUKAN

body1988
Srivastava, J.: - The petitioner assails the orders of the revenue authorities respondents 2 to 4, for restoration of 0.96 acres of land in C. S. poll No. 1587 (P) pertaining to Khatian no. 552 of Mouza Santir Bazar, South Tripura, to the respondents no. 5 and 6. 2. The facts briefly are, that the respondents 5 and 6 members of scheduled tribes, in the State of Tripura, are tenants of the said land. The petitioner who does not belong to any Schedule Tribe, claims to have acquired by transfer by sale, the under raiyat right of one Prakash Mahajan, and also claims to have been in possession. The respondents 5 and 6 approached the Sub-Divisional Officer, Belonia, South Tripura for restoration of their land in pursuance of the provision of section 187 (3) of the Tripura Land Revenue and Land Reforms Act, 1960, hereinafter the 'Act'. The said Sub-Divisional Officer, after hearing the parties, including the petitioner, by order dated 30.1.86 (Annexure-1) held that the respondents no. 5 and 6 were the tenants of the land in question and that the purported transfer had taken place in the year 1973 which was not valid being in contravention of the provisions of Section 187(1) of the Act, and under section 187 (3) directed restoration of land to the respondents 5 and 6. The petitioner's appeal to the Collector was dismissed by order dated 30.3.87 (Aanexure-2). The petitioner's second appeal to the Commissioner was also dismissed by order dated 28.4.87 (Annexure-3). 3. Shri D. Chakraborty, learned counsel for the petitioner, has urged before us that the revenve authorities ought to have taken into consideration the provisions of the Praja Bhumyadhikari Sambandha Bisbayak Ain 1886 (also known as the Tripura Landlord and Tenant Act) whereunder there was no bar or restriction to the acquisition of under raiyat rights in the land of a person in Tripura to a person who was not an indigenous resident of Tripura that is that from a schedule tribe to a non-schedule tribe, that the petitioner had acquired by transfer the under raiyat right of Prakash Mahajan who had acquired the said rights in the year, 1950 which was protected under the provisions of section 199 (2) (b) of the Act, and accordingly the transfer of the said right by prakash Mahajan in favour of the petitioner was valid. Shri Chakraborty has accordingly contended that the impugned orders of the revenue authorities are illegal and liable to be quashed. 4. Shri Majumder, learned Government Advocate, on the other hand, has submitted that according to the findings of the Sub-Divisional Officer, Belonia, no under raiyat rights had been acquired prior to the coming into force of the Act and that the Sub-Divisional Officer had found that the transfer had taken place in the year 1973, that the purported transfer taken by the petitioner was only to circumvent the provisions of section 187 of the Act and was therefore rightly not accepted by the revenue authorities. 5. We have considered the submissions for the parties and the materials on record. 6. The Supreme law of the country, the Constitution of India with the avowed object among others to secure justice, social, and economic and to promote fraternity assuring dignity of the individual has in-recognition of the need for advancement of socially and educationally backward classes of citizens and for the scheduled Castes and Scheduled Tribes, in clause 4 of Article 15, provided that the State could make special provision for the purpose. The anxiety of the framers of our Constitution in that regard is clear to all and in various laws enacted by the State such as laws made to carry our land reforms, provisions as considered necessary have been made to protect the interests of the scheduled tribes. The Tripura Land Revenue and; Land Reforms Act, 1960 is such a law which finds place at serial No. 64 in the Ninth Schedule under Article 31-B of the Constitution of India which means that the said law subject to the competency of the legislature is beyond any challenge in regard to its validity. 7. Sub-section (1) of Section 187 of the Act provides that : "No transfer of land by a person who is a member of the Scheduled Tribes shall be valid unless - (a) the transfer is to another member of the Scheduled Tribes; or (b) where the transfer is to a person who is not a member of any such tribe, it is made with the previous permission of the Collector in writing in the manner prescribed ; or (c) the transfer is by way of mortgage to a co-operative society or to a bank or to the Central or the State Government........" 8. The above provision is explicit and mandatory, and makes it absolutely clear that no transfer of land belonging to Scheduled Tribes shall be valid except in the manner stated. There can be no manner of doubt that any transfer of land belonging to a member of the Scheduled Tribes, not in accordance with the said provision shall be void ab initio. We also think that it is the solemn and bounden duty of all entrusted with the implementation of the said law, to ensure faithful meticulous observance of its provision, and any attempt on the part of any one seeking to contravene or circumvent the said mandatory provisions specifically laid down to protect the interests of the members of the Scheduled Tribes in their land, cannot and must not be tolerated. In this backdrop of the provisions the submissions for the petitioner may be considered. 9. The petitioner's submission that the Sub-Divisional Officer had found that the petitioner's predecessor Prakash Mahajan had acquired the under raiyat rights in the year 1950 is not at all correct. We have carefully perused the order dated 30. 1. 86 of the Sub-Divisional Officer, Belonia (Annexure-1). We have not found any such finding or even any observation that the petitioner's predecessor Prakash Mahajan had acquired under raiyat rights in the year 1950. The materials on record do not at all bear our the said submission for the petitioner, which is sought to be made the foundation of the petitioner's further contentions. There is absolutely no material to show that the petitioner's predecessor had acquired under raiyat rights in the year 1950, under the earlier Act of 1886. The 'Solenama', i. e. compromise decree in Title Suit in the Court of Munsiff in the year 1970 was considered by the learned Sub-Divisional Officer, Belonia and was rightly not accepted as of any help. We are inclined to think that there being no material to establish the basic fact that Prakash Mahajan had acquired under raiyat right in the year 1950, the compromise decree in the Civil Court could not, in contravention of the provision of Section 187 of the Act, have given rise to creation of any rights. The learned S. D. O., Belonia has observed that such solenama was executed after 1969 to circumvent the said provision, that is Section 187 (1) of the Act. The learned S. D. O., Belonia has observed that such solenama was executed after 1969 to circumvent the said provision, that is Section 187 (1) of the Act. Considering the facts and circumstances of the case, as revealed from the order of the learned S D. O. (Aanexure-1), we are inclined to think that the said observation cannot be considered to be incorrect or unjustified, for we do think that any action in contravention of the mandatory provisions' of S action 187 (1) of the Act, even if it be a 'compromise' filed in a Court, shall not affect the rights of member of the Scheduled Tribes. 10. It follows that the further submission of Shri D. Chakraborty, learned counsel for the petitioner, that the petitioner's predecessor's right was saved under the provision of Section 199 (2) (b) of the Act has no substance because the petitioner's predecessor had in view of Section 187 (1) not acquired any right in the land. 11. This petition has no merits and is dismissed. Costs on parties.