Madhuri Kalai vs Parimal Chandra Saha and Others

S. Talapatra, J.—1. By means of this petition under Article 227 of the Constitution of India, the judgment and order dated 28.08.2014 delivered in case No. 12/Appeal/Rev/Secy/2013 U/S 93(2) of TLR & LR Act, 1960 by the Secretary to the Government of Tripura, Revenue Department has been challenged. Indisputably the petitioner is a member of the Scheduled Tribes. At the petitioner''s instance the proceeding under Section 187B((1)(b) of the Tripura Land Revenue and Land Reforms Act, 1960, hereinafter referred to as the TLR & LR Act in short, was drawn up for restoration of the land appertaining to RS Plot No. 1487, Khatian No. 31/12 of Mouja - Hawaibari, now Khowai District. The said original petition dated 18.10.2010 was dismissed by the designated officer, the Sub-Divisional Magistrate, Teliamura by the order dated 21.07.2012 delivered in Revenue Case No. 01 of 2012. In that petition, Annexure-1 to this petition, the petitioner has asserted inter alia that the proceeding land originally belonged to one Waki Rai Kalai who died intestate leaving her two daughters, namely Smt. Mangaleswari Kalai and Smt. Rabi Kanya Kalai and two sons namely, Sri Subodh Singh Kalai, now deceased and Sri Manindra Kalai. By inheritance, the land devolved to those legal heirs. The said two daughters sold out the entire proceeding land to the petitioner by a registered sale deed dated 14.05.2009. According to the petitioner, she got the delivery of possession of the proceeding land from the vendors immediately after making of the sale deed. The respondents herein instituted a suit being Title Suit No. 08 of 2009 in the Court of the Civil Judge, Jr. Division, Khowai, West Tripura against the petitioner and other defendants for declaring their right, title and interest over the proceeding land and for cancellation of the sale deed executed in favour of the petitioner with consequential relief of perpetual injunction against the petitioner. The said suit was dismissed on 11.10.2010. The petitioner asserted that after dismissal of the suit the respondents No. 1 and 2, collaborated by the remaining respondents, trespassed into the proceeding land on 13.10.2010 dispossessing the petitioner. It has been also alleged that the respondents started on that very day itself constructing a building on the proceeding land. Hence, the petitioner prayed for restoration of the possession of the land under Section 187B(1) of the TLR & LR Act. As stated, the said petition was dismissed by the designated officer by his order dated 21.07.2012. In the judgment, the designated officer after due consideration of the documents so placed and on inquiry, has observed inter alia:

"1. In the TLR & LR Act, 1960 nothing specified in case of transfer of land as registered or unregistered deed. Any lawful deed whether registered or unregistered can be treated as valid supporting document. The transfer of land in this instant case had been occurred in the year 1962 which is well before Jan, 1969 from when the restoration process has come into force. So, Section 187 of the TLR & LR Act, 1960 does not attract in the instant case.

As per the field inquiry report on the matter the Tdr., Howaibari TK had clearly mentioned that the suit land is under the continuous and undisturbed possession of the respondents since 1962 to till date. The petitioner Smt. Madhuri Kalai has no possession over the suit land in the past or now."

Based on the afore-quoted finding, the petition for restoration was dismissed.

Being aggrieved by the said order dated 21.07.2012, an appeal was filed under Section 93(1) (b) of the TLR and LR Act being Appeal Case No. 01/2012 before the District Collector, Khowai. In the said appeal, the original order dated 21.07.2012 was affirmed by the order dated 01.03.2013. The said order disposing the appeal under Section 93(1) (b) of the TLR & LR Act was appealed against under Section 93(2)(c) of the TLR & LR Act to the State Government, represented by the Secretary to the Government of Tripura, Revenue Department being case No. 12/Appeal/Rev/Secy/2013. By the impugned judgment, the said appeal was also dismissed. The finding that the original owner Waki Rai Kalai had transferred the proceeding land to one Jogesh Chandra Roy, the predecessor of the respondents through an unregistered sale deed dated 17.02.1962, handed over the possession before 01.01.1969 and said Jogesh Chandra Roy had been in possession of the proceeding land since 1962 was further affirmed. As it transpires that a question was raised as to whether, when the land is transferred without permission of the Collector in terms of the provisions of Section 187(b) of the TLR & LR Act but the possession was handed over before 01.01.1969 the land can be restored by the designated officer. In this case, the original owner, Waki Rai Kalai sold the land to Jogesh Chandra Roy by an unregistered sale deed dated 17.02.1962 on payment of consideration money but without any permission for valid transfer. By the impugned judgment it has been unambiguously observed that the possession was delivered to a non-tribal in the year 1962. Thereafter, having regard to the full Bench decision of this Court in Hemalata Mallik and others v. the State and others (judgment and order dated 30.04.2014 in W.A No. 89 of 2007) the appeal was dismissed inasmuch as in Para-17 of Hemalata Mallik and others v. the State and others it has been tersely observed as follows:

"17. In this view of the matter, we answer both the question by holding that the 6th Amendment to the Tripura Land Revenue and Land Reform 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."

Mr. D. Chakraborty, learned senior counsel alive of the narrow ambit of interference under Article 227 of the Constitution of India has emphatically submitted that the expression ''on or after the 1st January, 1969'' appearing in Section 187B(1) of the TLR & LR Act has been wrongly interpreted in the impugned judgment and order. Even if the revenue authority had no jurisdiction to interfere with the possession of non-tribal occupier of the land owned by a member of the Scheduled Tribe, but on and after 01.01.1969 the legislature has entrusted the revenue authority with jurisdiction to evict such non-tribal occupier from the land owned by a tribal and to restore possession thereof to the tribal owner. As such, it is immaterial whether the dispossession or delivery of possession had taken place before 01.01.1969. According to Mr. Chakraborty, learned senior counsel in Hemalata Mallik and others v. the State and others, this aspect has not been taken care of.

Mr. D.K. Biswas, learned counsel appearing for the respondents has submitted that if the interpretation as advanced by Mr. Chakraborty, learned senior counsel is accepted, the legislative purpose of setting up if cut off date for purpose of restoration of the land belonging to the members of the Scheduled Tribes when the land was transferred in violation of Section 187(1) (b) of the TLR & LR Act would be frustrated. Such interpretation is, therefore, unacceptable.

What Mr. Chakraborty, learned senior counsel has submitted is in contrast to what has been laid by the Full Bench of this Court in Hemalata Mallik and others v. the State and others. To lay the propositions of Hemalata Mallik and others v. The State and others, the following passages are reproduced:

"10. 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 & Ors. v. State of Tripura & Ors., , 1998(2) GLT 470; Jogendra Sarkar v. District Magistrate & Collector and Ors., , (2001)2 GLR 133 and in Sridam Chandra Debnath and another v. State of Tripura and Ors., , (2005) 2 GLR 50, 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, 1969'' 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 187 B 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 Sub-section (3) by Section 187B and make it more elaborate. The cutoff 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 under Section 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 01.01.1969 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."

(Emphasis supplied)

In this case, the designated officer has decided on the basis of the evidence led by the petitioner and the filed inquiry report that the transfer had taken place illegally in the year 1962 and the predecessor of the respondents had been in possession since that year. In Hemalata Mallik and others v. the State and others, it has been clearly held that if the transfer of land between tribal to non-tribal had taken place in violation of the restriction imposed under Section 187(1)(b) of the TLR & LR Act, restoration cannot be ordered by the designated officer if such transfer was caused before 01.01.1969. Therefore, there is no substance in the submission that from 01.01.1969, the designated officer may exercise the jurisdiction for restoration of the land by evicting non-tribal possessor even if the transfer or the delivery of possession had taken place before 01.01.1969.

Even the basic principles of determining cause of action for purpose of adjudication of a right would be frustrated if the submission of Mr. D. Chakraborty, learned senior counsel is accepted. The cause of action even though not defined by any law but by way of development the said expression has been analysed in the varying circumstances. Cause of action is a fundamental element to confer jurisdiction upon any court and which has to be proved to support his right to a judgment of the court. On the basis of the cause of action the territorial jurisdiction, limitation and the maintainability before a forum is decided. In S.L. Constructions v. Alapati Srinivasa Rao, reported in , (2009) 1 SCC 500, it has been enunciated in unambiguous terms that the cause of action arises only once and not more than once. Since cause of action means a right to sue, from the bundle of facts which are pleaded or proved, existence of such cause of action has to be located. The cause of action in such a circumstances should be when the transfer as defined by way of explanation below Section 187D(1) of the TLR & LR Act had taken place. For purpose of reference, the said explanation is reproduced hereunder:

"Explanation : For the purpose of Section 187, 187B, 187C and 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."

The respondents have discharged their onus by proving that their predecessor entered in the possession of the land on 17.02.1962. In this regard, the concurrent finding of facts as returned by the revenue courts should not be interfered by this Court as there is no compelling reason to do so within the ambit of Article 227 of the Constitution of India.

The cumulative effect of such observations is that this petition is devoid of merit and accordingly, the same is dismissed.

However, there shall be no order as to costs.