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Judgment
A.P. Singh, J.—The three Civil Rule No. 392/97, Civil Rule No. 393/97 and Civil Rule No. 396/97 have been listed together as analogous matters.
In these cases Mr. U.B. Saha, learned Govt. Advocate and Mr. R.B. Sinha, learned Counsel appearing on behalf of the State Government made a request that the hearing of the cases may await the joining of the new Adv. General as the Government wants the cases to be argued by him for the reason that in these cases important question involving interpretation of Constitution are need to be decided. The request was, however, turned down on the ground that if the situation demands the hearing of the cases may be put off to accommodate the State Government. Sri Saha and Sri Sinha thereafter argued the cases and agreed that all the three cases may be finally disposed of.
From the order sheet it will appear that only Respondent Nos. 1, 2 and 3 who are the Government parties have filed their counter affidavit. Private parties, namely, Respondents Nos. 4, 5 and 6, despite being served with notices of the Civil Rule, have not filed counter affidavit. It is further found that Respondent No. 4 has since died during the pendency of the writ petition and Respondent Nos. 5 and 6, who happen to be her sons represented her estate in the cases. The Court accordingly deleted the name of the Respondent No. 4 vide order dated 4.12.97 in Misc. Case No. 628/97. None has appeared on behalf of the Respondents Nos. 5 and 6, whereas for the Petitioner Sri M. Kar Bhowmik, learned Counsel has appeared.
By means of the above Civil Rules the respective Petitioner thereof seek to challenge the impugned orders passed in each of the said Civil Rules by Sub-Divisional Officer, Dharmanagar (for short SDO) on 13.1.94 in Restoration Case No. 31/93 (impugned in Civil Rule 292/97), Restoration case No. 44/93 (impugned in Civil Rule No. 393/97) and Restoration case No. 33/93 (impugned in Civil Rule No. 396/97) by exercising power conferred on him by the Govt, of Tripura under Sub-section (3) of Section 187 of Tripura Land Revenue and Land Reforms Act, 1960 (for short T.L.R. and L.R. Act) as amended by the second Amendment Act of 1974.
Section 187 of the Act was inserted in the T.L.R. and L.R. Act by the second Amendment Act of 1974 interalia for creating bar against the transfer of land by a tribal in favour of a non-tribal without first obtaining written permission from the Collector of the District in the manner prescribed. Sub-section (3) of the said Section empowers the appointed Revenue Officer to eject the transferee and restore the possession of the land in question to the transferer in case the transfer of the land was made in contravention of the provision of Sub-section (1) on or after 1.1.1969. However, before making an order for the ejectment of the transferee and for restoring the possession to the transferer over the land in question the Revenue Officer is required to give opportunity of hearing to the transferee or persons claiming under him. The power u/s 187(3) can be exercised by the officer either on his motion or on an application filed before him in that behalf.
Sri kar Bhowmik, the learned Counsel appearing on behalf of the Petitioner in all the three Civil Rules, has taken exception to the illegality of the orders impugned in the respective writ petitions raising constitutional points. According to him Section 187 of the T.L.R. and L.R. Act, under which the impugned orders have been passed, has no application in the area where the land in question in all the three cases is situate. According to him since the land in question are situate in tribal areas, therefore, the power to make law in that area vests with the Tripura Tribal Areas Autonomous District Council (for short TTAADC) and not with the State Legislature. In support of his contention Mr. Kar Bhowmik placed reliance on paragraph 3(a) and paragraph 12AA of the 6th Schedule of the Constitution. Basing his argument on those provision of the Constitution Mr. Kar Bhowmik contended thatpccupation of the land in tribal area is a subject on which legislation can be made only by the District Council and not by the State Legislature and since the provision of Section 187 having not been adopted, either with or without modification by the District Council, the same will have no application whatsoever. Mr. Kar Bhowmik placed reliance on the dictionary meaning of the word "Occupation" which has been used in Clause (a) of para 3 of the 6th Schedule and on that basis contended that the same also include "Possession" and, therefore, the question as to who shall be in possession of the land is to be determined by law made by the District Council and not by the law of the State Legislature. On the other hand, Mr. U.B. Saha and Mr. R.B. Sinha, who have jointly appeared on behalf of the Govt, of Tripura in the above cases, have contended that Section 187 has full application to the land which are involved in the three writ petitions despite the fact that the said land falls and is situate in the area which is governed by District Council. It was further contended that word "Occupation" which has been used in Clause (a) of paragraph 3 of the 6th Schedule is something wholly different from the word "Transfer" and the word "Occupation" and "Transfer" are not interchangeable with each other, therefore, contended Sri Sinha the District Council has no power to make law on the subject of transfer which subject has been left alone for the State Legislature, therefore. Section 187 has full application and the orders impugned in the writ petition are perfectly valid.
Having heard learned Counsel for the parties on this point I find that the constitutional point regarding the applicability of paras 3 and 12AA of the 6th Schedule of the Constitution to the controversy involved in this cases do not at all call for consideration. In my opinion the case can suitably be disposed of on points other than the above mentioned points.
A perusal of the impugned orders passed in the three Restoration cases would show that the same have been passed in exercise of power under Sub-clause (a) of Sub-section. (3) of Section 187 by the SDO whereas the ground on which the order has been made in Civil Rules 392/97 and 393/97 is concerned it is wholly different from the ground on which the impugned order in Ciyil Rule No. 396/97 has been passed. I, therefore, propose to separately deal with Civil Rule Nos. 392/97 and 393/97 as a composite case and Civil Rule No. 396/97 as separate case.
I first take up Civil Rule Nos. 392/97 and 393/97.
The impugned orders in the above two writ petitions have been passed on the ground of infringement of the allotment rules and not on the ground of illegality of the transfer made by way of infringement of Sub-section.(1) of Section 187 of the Act. The relevant portion of the impugned orders passed in both the Restoration cases by the SDO read as follows:
ORDER IN RESTORATION CASE No. 31 OF 1993 (C.R. 393/97)
13.1.94 - Representative of 1st party is present. 2nd party has appeared and produced one unregistered deed wherefrom it appears that he purchased the land from one Kalendra Chakma in 1968.
But the 1st party got the land as an allottee in between 1962 to 1965 as it appears from Sabak Khatian numbers 39 and 40 of Mouja Karaicherra. BUT AS PER ALLOTMENT RULES WHICH WAS IN VOGUE THAT TIME ALLOTTED LAND COULD NOT BE TRANSFERRED WITHIN 10 YEARS, SO ANY TRANSFER OF THIS LAND BEFORE 1.1.69 WOULD BE VOID.
So, land measuring 0.70 acres under C.S. plot number 485 of Khatian number 61/1 mouja Karaicherra T.K. Pecharthal is hereby restored in favour of 1st party.
The order shall take effect on and from 1st Baisakh, 1401 B.S.
Sd/- Illegible 13.1.94 Sub-Divisional officer, Dharmangar
ORDER IN RESTORATION CASE No. 44/93 (C.R. 393/97)
13.1.94 - 1st party''s son is present and states that 1st party expired about 10 years back, 2nd party I is present.
It is seen from corresponding Old Khatian No. 89 that the first party get the land as an allottee from the Govt. AS PER ALLOTMENT RULES IN VOGUE THAT TIME ALLOTTED LAND COULD NOT BE TRANSFERRED WITHIN 10 YEARS OF ALLOTMENT. THE LAND WAS ALLOTTED IN BETWEEN 1962 TO 1965 AS IT APPEARS FROM SABAK KIMTIAN.
SO, ANY TRANSFER OF THE LAND PRIOR TO 1.1.69 WAS VOID. IN OTHER WORDS, EVEN IF 2ND PARTY WAS A TRANSFEREE OF THE LAND PRIOR TO 1.1.69, THIS CASE WILL NOT GO IN HIS FAVOUR.
Therefore, land measuring 0.50 acres under C.S. Plot 175,0.41 acres under C.S. plot 180, 0.52 acres under C.S. plot 181 totalling 1.43 acres of mouja Karaicherra T.K. Pecharthal is hereby restored in favour of 1st party. As per column 24 C.S. plot No. 182 is not possessed by 2nd party.
The order of restoration will take etfect on and from 1st Baisakh, 1401 B.S.
Sd/- Illegible 13.1.94 Sub-Divisional officer, Dharmangar
(Emphasised supplied.)
Sub-clauses (1) and (3) of Section 187 which are relevant in respect of controversy involved in all the three writ petitions reads as follows:
187 (1) No transfer of land by a person who is a member of the Schedule Tribes shall be valid unless-
(a) the transfer is to another member of the Schedule Tribes;
(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 waiting 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;
Provided that the land transferred to a cooperative society or to a bank by way of mortgage in pursuance of Clause (c) shall not be transferred by such society or bank to a person who is not a member of the Scheduled Tribes without the permission of the Collector in writing.
Explanation - In this Sub-section, the expression ''a bank'' shall have the same meaning as in Section 109.
(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;
A perusal of the provisions quoted herein above demonstrates that the Revenue Officer authorised to pass the order of ejectment of the transferee or the person claiming under him and for the restoration of possession over the land to the transferer or his successor can exercise this power only on the ground that the transfer was made by a tribal in favour of non- tribal without first obtaining written permission from the Collector in the manner prescribed and that such transfer was effected on or after 1.1.1969. In other words even if a transfer has been made by a tribal in favour of a non-tribal without obtaining written permission from the Collector of the District, where the land in question is situate, before the aforementioned cut off date, the SDO will have no power to pass an order of ejectment of the transferee or the consequential order of restoration of possession to the transferer.
It further appears from the orders impugned in above mentioned writ petitions (C.R. 392/97 and C.R.393/97) that the Petitioners of the two writ Petitioners who were 2nd parties in the restoration cases raised the plea before the SDO that the transfer in question having been made prior to 1.1.1969, the cut off date provided in the section, therefore, the provisions of Section 187 would not be attracted including Clause (a) of Sub-section (3) thereof. It further appears that faced with this situation the SDO coined out a wholly new ground for making the order of ejectment of the Petitioners of the two writ petitions. Instead of recording a finding as to whether the transfer in question had or had not been made on or after 1.1.69 he took a summersault and the ejectment order was passed by him on the ground that the transfefer had made illegal transfer of the land in contravention of the terms of the allotment order which was made in his favour according to which within a period of 10 years from the date of allotment of the land, no transfer of the same could be made and since the transfer in favour of the Petitioner had been made within a period of 10 years from the date of allotment of the land in question in the two writ petitions the transferee was liable to be ejected from the land in dispute in two Civil Rules and restoration of possession was liable to be made over to the transferer. The learned SDO, however, did not mention any legal provision to back his above conclusion and finding and appears to have passed the order for Petitioner''s ejectment on the strength of Sub-section (3) of Section 187.
Where a power has been conferred by statute to be exercised by an authority subject to the existence of a certain situation that power can be exercised only in that situation and not in any other. In my opinion, the impugned orders of ejectment passed against the Petitioner in the two writ petitions herein above on the ground other than the ground which has been mentionedin Sub-section (3) of Section 187 cannot be sustained for the reason that the same has been passed in clear disregard of power conferred on the SDO by the said provision.
At this stage Sri U.B. Saha, learned Govt. Advocate appearing on behalf of the Respondent Nos. 1, 2 and 3 raised the plea of alternative remedy. According to him Section 93 of the T.L.R. and L.R. Act provides a statutory remedy to the Petitioner by way of appeal before the Collector and thereafter by way of 2nd appeal before the State Government against the impugned order of the SDO, and therefore, this Court would not at all be justified to interfere with the same and the proper course would be relegate the Petitioner for invoking the remedy available u/s 93 of the Act by way of appeal and 2nd appeal.
It is true that where statutory alternative remedy is provided normally such remedy must be exhausted by the applicant before taking recourse to remedy provided by Article 226 of the Constitution of India. But at the same time this Court cannot loose site of the fact that the order impugned in the two writ petitions is palpably without jurisdiction. Where an order, which is palpably without jurisdiction, is brought by way of challenge before the High Court exercising power under Article 226 of the Constitution, the High Court will be under duty to set aside such an order notwithstanding that there is a statutory alternative remedy available to the applicant in another forum. In this respect a reference may be had to a judgment of the Supreme Court in the case of Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, The Supreme Court in above case set aside the judgment of Allahabad High Court whereby the High Court had declined to interfere with the order of the Vice Chancellor which he had passed by way of review of his earlier order on the ground of alternative remedy available u/s 68 of the U.R State Universities Act, 1973 by way of application before the Chancellor of the University. Supreme Court in para 11 and 12 of the judgment observed as follows:
It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity.
The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the Appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor u/s 68 of the U.P. State Universities Act. It is well established than alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case, the Vice-Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction: Indeed, the order passed by the Vice-Chancellor on review was a nullity ; such an order could surely be challenged before the High Court by a petition under Article 226 of the Constitution and, in our opinion, the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the Appellant u/s 68 of the U.P. State Universities Act.
Thus it will appear that where an officer on authority has no power to make an order the said order becomes palpably without jurisdiction. In such situation, as observed by the Supreme Court in Gupta''s case (supra) it will be boundened duty of High Court to interfere and quash such orders to remove the illegality.
In the present case the SDO possess no power to make an order for the ejectment of the Petitioner from the land in the suit in the two writ petitions or for the restoration of possession thereof in favour of the transferee until he found that transferee had acquired title and possession over the land in question by way of transfer made in his favour in contravention of the provisions of Sub-section (1) of Section 187 on or after 1.1.69 and not on any other ground. Thus where an order has been passed for the ejectment of the transferee and for the restoration of possession in favour of the transferer on a grounds other than the ground which has been stated in Section 187. Such an order will not be an order u/s 187.C Sri Saha too has failed to point out any other provision of law under which such order could be passed by the SDO.
I, therefore, do not find any substance in the contention of Sri Saha that the Petitioner should be relegated to invoke the alternative remedy of appeal, in my opinion in the facts and circumstances prevailing in the two cases the remedy of appeal can be ignored. Petitioner has right to challenge the impugned orders in the two writ petitions directly in this Court and this Court will have no compunction in entertaining the same and quashing the impugned orders. I accordingly allow the two writ petitions, namely C.R. 392/97 and C.R. 393/97 and quash the impugned orders made by the SDO on 13.1.1994 passed in Restoration Case No. 44/93 impugned in C.R. 393/97 and Restoration case No. 31/93 impugned in C.R. 392/97 (Annexures-2 and 3). It will, however, be open to the concerned authorities to take appropriatie proceedings against the Petitioner as may be permissible by the law.
The writ petitions are, accordingly, allowed with costs.
Civil Rule No. 396 of 1997
Before proceeding to address the legal question involved this case a brief resume of the facts of the case will be necessary. The facts are: One Dhaneswar Chakma, predecessor-in-interest of surviving Respondent Nos. 5 and 6, was a tribal. He happened to be the original Jotedar of the land in dispute. He sold land measuring 2.48 acres to one Kalendra Chakma who was also a tribal on 18.3.68 by means of registered sale deed. Sri Kalendra Chakma, the vendee, on his turn on the same day executed an un-registered transfer deed for transferring a portion of the land which he had purchased from Dhaneswar Chakma. After the death of Dhaneswar Chakma his legal heirs, namely, his widow and his two sons who are Respondents Nos. 4 and 6 in the Civil Rule filed application for restoration of possession of the land in their favour and for the ejectment of the Petitioner from the said land under his occupation. The application was filed under Sub-clause (a) of Clause (3) of Section 187. In the application it was alleged that the transfer of the land in favour of Petitioner, who is a non-tribal is illegal as no permission in writing, as required by Section 187(1), had been obtained before making the transfer from the Collector of District.
As in the above mentioned two Civil Rules, namely. Civil Rule No. 392/97 and 393/97 contention had been raised on behalf of the Petitioner before the SDO that since the land in question had already been transferred before 1.1.69, which was, the cut off date in Section 187(3)(a), therefore, no order for the ejectment of the transferee or for the restoration of possession in favour of transferer can legally be made. The SDO, however, instead of recording any finding on the question as to whether the transfer to which exception had been taken by the applicants before him was made on or before the cut off date he made the order of ejectment of Petitioners from the land purchased by him on the ground that the transferee had failed to show that the transfer of the land in question in their favour was made on or before the cut off date.
The reasoning adopted by the SDO for passing the order impugned in the writ petition has been assailed by Mr. Kar Bhowmik on two grounds. According to him the SDO was under obligation to record a finding on the point of standing of the Respondents who had filed the application for restoration of their possession over the land after the ejectment of Petitioner therefrom. According to him since the land was sold in favour of Petitioner by Kalendra Chakma and not by Dhaneswar Chakma, the heirs of Dhaneswar Chakma and who had filed the application before the SDO u/s 187(3) possessed no right or interest to claim restoration of possession over the land or for the eviction of the Petitioner therefrom. Sri Kar Bhowmik emphasised that since Dhaneswar Chakma had sold the land in favour of Kalendra Chakma who was also a tribal, therefore, no permission from the Collector was needed before making the transfer. The next argument of Sri Kar Bhowmik was that the SDO''s power to make the order of ejectment and restoration of possession over the land and for ejectment therefrom being dependent on the fact that the transfer in question had been made on or after 1.1.69, therefore, it was the bounden duty of the SDO to first record finding after taking evidence that the transfer had been effected on or before 1.1.69. In absence of such a finding the order made by him will be palpably illegal and will entail an error of jurisdiction. On the contrary, it was contended by Sri Saha that it is the duty of the transferee to show that the transfer in question was made prior to 1.1.69 and since the Petitioner had failed to perform his duty no exception can be taken by him to the impugned order. In this context Sri Kar Bhowmik had drawn my attention to the sale deeds executed by Dhaneswar Chakma in favour of Kalendra Chakma and by Kalendra Chakma in favour of the Petitioner which have been filed respectively as Annexures-1 and 2 in the Civil Rules. Both the deeds appear to have been executed on the same date namely, on 18.3.68 which would fairly establish that the transfers in question had been effected before the cut off date. However, I am not inclined to record a finding on the issue in the present case and leave the exercise to be performed by the appropriate authority at appropriate stage.
I find sufficient force in the contention of Sri Kar Bhowmik. 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-section (3) of Section 187 if the third ingredient is not satisfied. In the circumstances power of the SDO to make an 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 question had 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-section (3) of Section 187. If the said fact is not established hewill have no power to make such an order.
Where exercise of power is dependent of the existence of a fact in that case before the power is exercised by the authority concerned the existence of the fact must be shown. In the present case, it is found that the SDO has not recorded the necessary finding that the transfer of the land in question was made in favour of Petitioner on or after 1.1.69. He, however, passed the impugned order only because Petitioner had failed to prove that the said transfer was made in his favour before 1.1.69. The approach of the SDO, in my opinion, was wholly illegal and faulty. The result there or is that order of eviction of the Petitioner from the land in dispute and the consequential order for restoration of possession of Respondents Nos. 5 and 6 are rendered a nullity.
In this case too Mr. Saha pressed the plea of alteration remedy which for the reasons already indicated above in connection with the judgment in C.R. Nos. 392/97 and C.R. 393/97 is turned down.
As a result of the above discussion the writ petition succeeds and is accordingly allowed. The order dated 13.1.1994 passed by the SDO in Restoration Case No. 33 of 1993 is quashed. The case is remanded back to the SDO who shall restore the same to his file and decide the matter afresh after recording requisite findings on the question of the standing of the Respondent Nos. 5 and 6 who had moved the application for restoration of possession and for the ejectment of the Petitioner in view of the fact that Dhaneswar Chakma had sold the land in favour of a tribal and not in favour of a non- tribal and secondly on the question whether the transfer in question in the case was effected on or after 1.1.1969 or before that date. The learned S.D.O. will also allow the parties to adduce fresh evidence in support of their respective case. The parties shall bear their own costs. Writ Petitions are allowed.