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2014 DIGILAW 229 (TRI)

Hemendu Bikash Barua v. State of Tripura

2014-06-19

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. A. Lodh, learned counsel appearing for the petitioner as well as Mr. B. Datta, learned counsel appearing for the respondents. 2. The petitioner admittedly belongs to Barua Community which is not recognized as the Scheduled Tribe in the State of Tripura, even though the members of the Barua Community for a substantial time was recognized as the member belonging to a sub-group of the Chakma Community and as such the competent authority had issued the Scheduled Tribe Certificates in their favour. But later on, all such certificates after due scrutiny by the competent authority were gradually cancelled and the Government has strictly directed the authorities who are entrusted to issue the status certificate not to issue the Scheduled Tribe Certificates to any member of the Barua Community. However, that was not the issue that had fallen for consideration in the proceeding which has been set in by the respondent No. 4 under Section 187 of the Tripura Land Revenue and Land Reforms Act, 1960 as amended from time to time for recovery of the possession of the land. 3. The designated officer, the Sub-Divisional Officer, Dharmanagar by the Order dated 24.02.1982 passed in the restoration case No. 21/Rest/81 had observed as follows: Heard the case in KCP Tehsil. The tribal petitioner Sri Sova Ranjan Chakma and the O.P. Sri Hemendu Bikash Barua present. R.I. Sri S.M. Sinha present. Heard both the parties, perused the report of R.I. and examined the records. It is found from the finally published ROR (1965) that Sri Hemendu Bikash Barua and Sri Priyatosh Barua (two brothers) have been recorded as illegal possessor in contravention of section 187 of TLR and LR Act, 1960 of C.S. Plot No. 663/114 (Mouja KCP) measuring.58 acres. An unregd. deed dated 31.2.1969 B.S. (1962 AD) was produced before me in which. 50 acres of land has been sold in the plot by Para Kinkar Chakma. It is clear that the land in question was transferred before 1.1.1969. Therefore the case is dropped. 4. From the said order it is apparent that in the record of rights published in 1965, the petitioner and his brother namely Priyatosh Barua have been recorded as the illegal possessor in view of Section 187 of TLR and LR Act, 1960 on the C.S. Plot No. 663/114 of Mouja-Kanchanpur measuring.58 acres. Therefore the case is dropped. 4. From the said order it is apparent that in the record of rights published in 1965, the petitioner and his brother namely Priyatosh Barua have been recorded as the illegal possessor in view of Section 187 of TLR and LR Act, 1960 on the C.S. Plot No. 663/114 of Mouja-Kanchanpur measuring.58 acres. An unregistered deed dated 31.2.1969 B.S. corresponding to 1962 of the English calendar which was produced before the Sub-Divisional Officer, Dharmanagar shows that the land was transferred illegally measuring.50 acre to the petitioner. 5. Since the petitioner was not affected by the said order he did not file any appeal from the said order. Thereafter, the respondent No. 4 approached afresh the designated officer by filing a restoration case being 1/Rev/REST/93 for the same plot of land and the restoration was directed without hearing the petitioner. On revision the District Magistrate & Collector affirmed the order directing the restoration of possession. The said order of the District Magistrate & Collector passed in REV/Revision/2 of 96 was challenged by the petitioner by filing a writ petition being Civil Rule No. 288 of 1996. 6. It appears from the judgment and order dated 01.08.2002 delivered in Civil Rule No. 288 of 1996 that the High Court quashed the order passed by the District Magistrate & Collector passed in Rev/Revision/2/96 and directed to readmit the restoration case being No. 1/Rest/93 for fresh hearing in accordance with law inasmuch as the said case was decided without affording any opportunity of hearing to the petitioner. The SDM, Kanchanpur, the designated officer was directed to decide the case within a period of four months from that day. It appears from the record that by the order dated 31.10.2002 the Sub-Divisional Magistrate directed restoration in the restoration case No. 1/Rest/93 under Section 187 of the Tripura Land Revenue and Land Reforms Act, 1960. The petitioner preferred an appeal under Section 93(1) of the Tripura Land Revenue and Land Reforms Act, 1960 before the District Collector. In the said appeal being REV/Appl/30/2004 under Section 93(1) of the TLR & LR Act, 1960 the District Collector, North Tripura, Kailashahar refused to interfere with the order passed by the designated officer, the Sub-Divisional Magistrate, Kanchanpur Sub-Division by his order dated 30.09.2008. 7. The petitioner being aggrieved by that order has approached this Court by way of this petition. In the said appeal being REV/Appl/30/2004 under Section 93(1) of the TLR & LR Act, 1960 the District Collector, North Tripura, Kailashahar refused to interfere with the order passed by the designated officer, the Sub-Divisional Magistrate, Kanchanpur Sub-Division by his order dated 30.09.2008. 7. The petitioner being aggrieved by that order has approached this Court by way of this petition. It appears from the record that the fact that petitioner came into possession of the said land much before 01.01.1969 has not been considered at all, even though in the order dated 24.02.1982 it was observed that the name of the petitioner has been recorded in the ROR published in 1965 as the illegal possessor. The presumption of the correctness of such entry unless rebutted has to be drawn by this Court in terms of Section 43(3) of the TLR & LR Act, 1960. A full bench of this Court by their order dated 30.04.2014 in W.A. No. 89 of 2007 has observed as under: 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. 8. In view of the said decision of the full bench of this Court, the Sub-Divisional Magistrate, the designated officer for purpose of restoration under Section 187(3) of the TLR & LR Act, 1960 had no jurisdiction to direct restoration of the land to the respondent No. 4. Hence, the order of the Sub-Divisional Magistrate dated 31.10.2002 as passed in 1/Rest/93 under Section 187 of the TLR & LR Act, 1960 and the order of the District Magistrate & Collector dated 30.09.2008 passed in REV/Appl/30/2004 under Section 93(1) of the TLR & LR Act, 1960 are quashed and set aside. 9. Having held so, this petition stands allowed. However, there shall be no order as to costs.