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1995 DIGILAW 242 (GAU)

Amulya Sarkar v. State of Tripura

1995-11-07

A.K.PATNAIK

body1995
I heard Mr. SM Chakraborty, learned counsel appearing on behalf of the petitioners and Mr. A. Chakraborty, learned Advocate General, Tripura, appearing on behalf of the respondents. 2. This is an application under Article 226 of the Constitution of India praying for a writ of Certiorari quashing the impugned orders dated 23.8.1986 passed by the Revenue Officer (SDO), Khowai, West Tripura in Case No. 189/ RST/KH/86, dated 4.12.1986 passed by the District Magistrate and Collector, West Tripura in Revenue Appeal Case No.8 of 1986 and dated 5.1.1986 passed by the Secretary of Revenue etc, Government of Tripura in Appeal Case No.3/ Revenue/Commnr/Rst/87. 3. The brief facts of the case are that a member of Scheduled Tribes namely, Shri Upananda Jamatia sold 4 (four) kanis of land to Shri Subal Chandra Bhowmik and others on 3.3.1968 and thereafter Shri Subal Chandra Bhowmik and others sold four kanis of land to the petitioners on 21.11.1975. Having purchased the said land, the petitioners entered the said land and are presently in occupation of the same. 4. Thereafter Case No. 189/RST/KH/86 was initiated by the Revenue Officer (SDO), Khowai, West Tripura on the complaint of Shri Upananda Jamatia (respondent No.5) and after hearing the parties, the Revenue Officer (Sub-Divisional Officer), Khowai, West Tripura passed impugned order dated 23.8.1986 and held that the said purchase of the land by the petitioners under the unregistered sale deed dated 21.11.1975 is in contravention of sub-section (1) of section 187 of the Tripura Land Revenue and Land Reforms Act, 1960. 5. Being aggrieved by the said order dated 23.8.1986 of the Revenue Officer, the petitioners filed Revenue Appeal Case No.8 of 1986 under section 93 (1) of Tripura Land Revenue and Land Reforms Act, 1960. But the said appeal was dismissed by the District Collector, West Tripura by impugned order dated 4.12.1986. 6. Against the said order of the District Collector, West Tripura, the petitioners carried a further appeal to the State Government, which was numbered as Case No.3/Revenue/Commnr/Rst/1987. But the appeal was also rejected by the impugned order dated 5.1.1988 of the Secretary of Revenue etc, Government of Tripura. 7. At the hearing of the writ petition, Mr. 6. Against the said order of the District Collector, West Tripura, the petitioners carried a further appeal to the State Government, which was numbered as Case No.3/Revenue/Commnr/Rst/1987. But the appeal was also rejected by the impugned order dated 5.1.1988 of the Secretary of Revenue etc, Government of Tripura. 7. At the hearing of the writ petition, Mr. SM Chakraborty, learned counsel for the petitioners submitted that a reading of the impugned orders would show that the authorities have not only held that the sale of the land on 21.11.1975 by Subal Chandra Bhowmik and others to the petitioners was contrary to the provisions of sub-section (1) of section 187 of the Tripura Land Revenue and Land Reforms Act, 1960 (for short the Act), but have also directed restoration of possession of the said land in favour of respondent No. 5. According to Mr. Chakraborty a reading of sub-section (3) of section 187 of the Act would make it abundantly clear that such restoration could be ordered only if the transfer of land has been made by a person who is a member of the Scheduled Tribes on or after the 1st January, 1969 in contravention of sub-section (1) of section 187 of the said Act. 8. Mr. Chakraborty further submitted that in the facts and circumstances of the present case as has been found by the Revenue Officer in the impugned order dated 23.8.1986, the petitioners have purchased the land under their occupation under the unregistered deed dated 21.11.1975 by Shri Subal Chandra Bhowmik and others to the petitioners was by the person, who are not the member of the Scheduled Tribes. Hence, though the transfer was after 1st January, 1969, it was not made in contravention of sub-section (1) of section 187 of the Act. Further, even if it is held that the petitioners were claiming under Shri Subal Chandra Bhowmik and others, who acquired the land under the transfer dated 3.3.68 from the respondent No.5 which was in contravention of sub-section (1) of section 187 of the Act, the said transfer dated 3.3.68 was prior to 1st January, 1969. Hence, sub-section (3) of section 187 of the Act could not be invoked by the Revenue Officer to restore possession in favour of the respondent No.5. 9. Mr. Hence, sub-section (3) of section 187 of the Act could not be invoked by the Revenue Officer to restore possession in favour of the respondent No.5. 9. Mr. A. Chakraborty, learned Advocate General, Tripura, in reply submitted that the language of sub-section (3) of section 187 of the aforesaid Act is clear that only in respect of transfer made by a member of Scheduled Tribes on or after 1st January, 1969 in contravention of provision of sub-section (1) of section 187 of the Act, an order for ejection of the transferee or any person claiming under him from the land transferred would be passed by the competent authority. Mr. Chakraborty also submitted relying on the decision of Division Bench of this Court reported in (1989) 2 GLR 83 (Smti Saraju Bardhan vs. State of Tripura & others) that the transfer made in contravention of sub-section (1) of section 187 of the Act is void and invalid. Despite service of notice on the respondent No.5, none has appeared for him. 10. Sub-section (3) of section 187 of the Act on which reliance has been placed by Mr. SM Chakraborty is quoted herein below : "187. (3) (a) If a transfer of land belonging to a person who is a member of the Scheduled Tribes is made on or after the first January, 1969 in contravention of the provisions of sub-section (1), any revenue officer, appointed specially for this purpose by the State Government by notification in the official Gazette, may, of his own motion or on an application made in that behalf, and after giving the transferee an opportunity of being heard, by an order in writing eject the transferee or any person claiming under him from such land or part thereof. (b) When the revenue officer has passed any order under clause (a) he shall restore the transferee land or part thereof to the transferer or his successor-in-interest : Provided that such order'shall have effect from the first day of Baishakh next following the date of the order." A bare reading of sub-section (3) of section 187 of the Act would show that before an order of ejectment is passed thereunder, the Revenue Officer must come to the finding that the transfer in respect of the land in question from which the transferee or any person claiming under him is sought to be ejected was not only made by a member of a Scheduled Tribes in contravention of sub-section (3) of section 187 of the Act, but also made on or after the 1st day of January, 1969. 11. So far as the present case is concerned, the findings of the Revenue Officer (respondent No.4) in the impugned order dated 23.8.1986 is that the land was first transferred by Shri Upananda Jamatia (respondent No.5) to Shri Subal Chandra Bhowmik and others on 3.3.1968, that is prior to 1st January, 1969. The said transfer made on 3.3.1968 by Shri Upananda Jamatia to Subal Chandra Bhowmik and others was in contravention of the provision of sub-section (1) of section 187 of the Act and, therefore, was void and invalid as has been held by the Division Bench of this Court in the case of Smti Saraju Bardhan vs. State of Tripura & others reported in (1989) 2 GLR 83. But then the said transfer made on 3.3.1968 by Shri Upananda Jamatia to Shri Subal Chandra Bhowmik and others though in contravention of sub-section (1) of section 187 of the Act was a transfer prior to 1 st January, 1969 and thus no order of ejectment of the transferee Subal Bhowmik and others or persons claiming under them namely the petitioners could be passed by the Revenue Officer under sub-section (3) of section 187 of the Act. Regarding purchase of the land under the unregistered deed dated 21.11.1975 since the petitioners have purchased the land under the said unregistered deed not from Upananda Jamatia, but from Shri Subal Chandra Bhowmik and others, who are not the members of the Scheduled Tribes, the transfer dated 21.11.1975 was not in contravention of sub-section (1) of section 187 of the Act and thus no order of ejectment could be passed by the Revenue Officer ejecting the petitioners from the said land. Thus the impugned order dated 23.8.1986 restoring the possession of the land in favour of the respondent No.5 is without jurisdiction and the impugned orders dated 23.8.1986 of the Revenue Officer (Sub-Divisional Officer), Khowai, West Tripura, dated 4.12.1986 of the District Collector, West Tripura and dated 5.1.1988 of the Secretary of Revenue etc, Government of Tripura are liable to be quashed. 12. The writ petition is therefore, allowed. The impugned orders are quashed. But considering facts of the case, there will be no order as to costs.