The Director, Don Bosco Centre v. Smt. Putul Rani Debbarma & Ors.

Order

30th March, 2022. 30th March, 2022. Whether fit for reporting : YES Page - 2 of 16 JUDGMENT AND ORDER (Oral) (Per S.G. Chattopadhyay, J.) The present writ appeal is directed against the judgment and order dated 04.09.2017 passed by the learned Single Judge in WP(C) No. 306 of 2013. [2] Appellant is a registered society engaged in running vocational training centres, schools and residential boarding houses for tribal students. It is represented by the director duly appointed by the society. Respondents No.1 and 2 who were the petitioners in WP(C) No. 306 of 2013 executed gift deed number 1-8912 dated

02.11.1999, gift deed No.1-11315 dated 26.12.2003 and gift deed No. 1-572 dated 17.01.2004 transferring a tract of land in favour of the appellant society. Subsequently, the said respondents by filing a petition approached the Revenue Court of the District Collector for restoration of their land under section 187B of the Tripura Land Revenue and Land Reforms Act, 1960 (TLR & LR Act, 1960 for short) which was rejected by the District Collector. Appeal against the order of the District Collector was also rejected by the revisional authority. Thereafter, by filing WP(C) No. 306 of 2013 respondents No.1 and 2 claimed that the transfer of land made by them in favour Page - 3 of 16 of the appellant by executing the aforesaid gift deeds was illegal, void and dehors the provisions of section 187 of the TLR & LR Act, 1960 and order passed by the District Collector and the revisional authority were completely erroneous. The respondents sought for the following reliefs in their writ petition: ”(i) Issue notice upon the respondents; (ii) Call for records; (iii) Issue Rule calling upon the respondents to show cause as to why a Writ of Certiorari not be issued calling upon the respondents to produce all the records relating to the restoration proceeding before this Hon‟ble Court and on consideration of the records set aside the order dated 27.07.2013 passed by the Secretary, Government of Tripura, Revenue Department no.12/Rev/Revision Secy/2011 and the order dated 07.06.2011 passed by the Ld. Presiding Officer of the Ld. Court of District Collector, West Tripura, Agartala, in connection with the Revenue Case No.375/09, connection Revenue AND (iv) Also pass an order/direction by way of issuing a Writ of Mandamus to restore the land in favour of the petitioners by way of declaring the deeds of transfer as illegal and void and dehors the provisions of Section 187 of the TLR and LR Act, 1960 AND To pass any other order/orders as Your Lordship may deem it fit and proper………….” [3] The grievance of the respondents as unfolded by them in their writ petition was that they had approached the Jurisdictional Sub-Divisional Magistrate at Bishalgarh under Section 187B of the TLR & LR Act, 1960 for restoration of the land as purportedly Page - 4 of 16 transferred by those gift deeds. Since the Sub-Divisional Magistrate, Bishalgarh who is the designated authority did not take any action, the respondents had approached the District Collector of the concerned district (now Shepahijala District) by filing a petition under Section 95 of the TLR & LR Act, 1960 which was registered as Revenue Case No. 375 of 2009. The District Collector by his order dated 07.06.2011 [Annexure P/4 to the writ petition] passed in

Revenue Case No. 375 of 2009 held that respondent No.1, Smt. Putul Rani Debbarma transferred her land to the appellant who was also a tribal. Therefore, bar under Section 187 of the TLR & LR Act, 1960 in respect of transferring of land owned by tribal to non-tribal would not apply and accordingly, the petition of respondent No.1 was rejected by the District Collector by the following order: “07.06.2011 ............Heard both sides Ld. Advocates. Perused SDM Bishalghar enquiry report. Hon‟ble High Court order. Others documents produced by the parties. Hon‟ble Gauhati High Court order & direction dated 9/3/2011 upon the D.M. & Collector, West Tripura was as follows:- “ the D.M. & Collector, West Tripura, Agartala will dispose of the application of the petitioners at an early date in accordance with law providing opportunity to the respondent No.4 also. As the petitioners filed the application in the year 2009 this court further hope and trust that the respondents statutory authority will try for disposal of the petitioners‟ application preferably within six months from the date of receipt of this order.” Page - 5 of 16 Accordingly Law cell of this office sent the Hon‟ble High Court Order dated 09.03.2011 to the SDM Bishalgarh vide No.F.DM(W)/Law Cell/W.P.(C) 67 of 2011/1061-63 dated 18th April 2011 for compliance of the same within a period of 6(six) months positively. SDM Bishalgarh was also requested to furnish a status report about the action taken on the application under section 187(1)(2) & (3) of the TLR & LR Act 1960 of the said party. A copy was also sent to Revenue Court Case Cell for similar action. Accordingly institute a Revenue Case U/S 95 of the TLR & LR Act, 1960. An enquiry report is also received from the SDM Bishalgarh vide No.2665/F.4(42)/SDM/BLG/REV/09 dated 09.03.2011. It appears from the enquiry report that the entire impugned was allottee. The land was mutated in favour of the representative of the Director, Don Bosco Centre. Ld. Advocate for respondent stated that the impugned land was gifted land by the petitioner. However on scrutiny it appears that the petitioner filed her petition U/S 187 of the TLR & LR Act 1960. Her petition was wrongly admitted U/S 95 of the TLR & LR Act 1960. Power of U/S 187 of the TLR & LR Act 1960 is vested to SDMs by the Revenue Department Vide No.F.83(2)/REV/73(S) dated 07.12.2001. It also appears that the matter in between the parties is and are both Tribal so U/S 187 of the TLR & LR Act is also not applicable in the instant petition. Under the above circumstances the petition of Smti. Putul Rani Debbarma filed U/S 187(1)(2) & (3) of the TLR & LR Act, 1960 is rejected.” [4] Aggrieved by and dissatisfied with the order of the District Collector, respondent No.1 (writ petitioner) filed revisional application before the Secretary to the Government of Tripura in the Revenue Department. Her application was registered as 12/Rev/Revision/ Secy/2011 which was dismissed by the Revenue Secretary by his order dated 27.07.2013 on the ground that the transfer of land was from tribal to tribal as the donor was admittedly a tribal and the recipient of the gift deed was also a tribal. The order of the Revenue Page - 6 of 16 Secretary reads as under: Sl.No. & Date

27.07.2013 Note of Action taken on Order & Signature of the Officer Ld. Advocate Sri Arijit Debnath is present on behalf of appellant. Father K.K. Joseph appeared as respondent. Ld. Advocate for the 1st party raised the point that the transfer of land concerned is illegal and invalid, U/S 187 of TLR & LR Act, 1960. On the other hand the respondent declared that the transfer was from tribal to tribal as the recipients of the deed was Sri Uttam Molsom who belongs to tribal community. Hearing the parties I find no reasonable ground for interfere with the order passed by the Collector. Hence revision petition is dismissed. Inform to all concerned parties. Typed to my dictation & corrected by me. Sd/- Sd/- (S. Saha) (S. Saha) Secretary, Revenue Secretary, Revenue [5] As stated, the respondents being petitioners challenged the said order dated 27.07.2013 passed by Revenue Secretary by filing WP(C) No.306 of 2013. [6] The appellant (respondent No. 3 in the writ petition) contested the case by filing counter affidavit. It was contended by the appellant (respondent No.3) before the learned Single Judge that after the execution of the gift deeds by respondents No.1 and 2 (writ petitioners), the right title and interest of the respondents over the Page - 7 of 16 land of those deeds were extinguished. The appellant became the possessor and absolute owner of those land which was being used by the appellant for promotion of education to all particularly the Christians and for promotion of peace and harmony in society. The appellant further contended that the respondents executed the gift deeds voluntarily in free exercise of their will and moreover, the institute run by the appellant was managed by St. Xavier’s Bishramganj, a society registered under the Societies Registration Act, 1860 which was always represented by a tribal as its director. The appellant (respondent No.3) asserted that since, it was a transfer from tribal to tribal, the bar under Section 187 of the TLR & LR Act, 1960 would not apply in this case. Respondents No.1 and 2 i.e. the State respondents of the writ petition by filing separate counter affidavit also opposed the contention of the writ petitioner and asserted that the District Collector by his order dated 07.06.2011 in revenue case number 375/2009 quite correctly rejected the claim of the petitioner on the ground that both the parties were tribal whereas Section 187 of the TLR & LR Act, 1960 deals with the matter with regard to transfer of land between tribal and non- tribal and therefore, the said transfer does not come within the purview of Section 187 of TLR & LR Act, 1960. The State respondents also Page - 8 of 16 supported the order dated 27.07.2013 passed by the Revenue Secretary in revenue case number 12/Rev/Revision/Secy/2011 rejecting the revisional application of the writ petitioners. [7] Counsel appearing for the writ petitioners argued before the learned Single Judge that barring the entities curved out in Section 187(1)(c), no other person can be exempted from the rigours of section 187(1) of the TLR & LR Act, 1960. Counsel argued that the procedure followed by the Sub- Divisional Magistrate as well as the District Collector in deciding the disputes between the parties was grossly erroneous and unsustainable in law. Counsel also argued that a society in terms of the Societies Registration Act, 1860 cannot be put into the jacket of a tribal for the purpose of Section 187 of the TLR & LR Act, 1960. Counsel argued before the learned Single Judge that there is no question to hold that the property if purchased by a society even if being represented by a tribal person, can be treated that the transaction was made to a tribal person. [8] Counsel who appeared for the appellant (respondent No.3 in the writ petition) argued before the learned Single Judge that from the composition of the governing body of the appellant, it would be apparent that most of the members of the said governing body Page - 9 of 16 belonged to tribal community and since majority of the members were from tribal community, the society must be treated as having the trappings of tribal society and thus, it should be treated as the “tribal entity” for the purpose of Section 187(1) of the TLR & LR Act,

#1960. [9] The counsel for the appellant also argued that the appellant (respondent No.3 in the writ petition) was working dedicatedly for the development of tribal community and as such they were also protecting the interest of the tribal community in line with the fundamental object of TLR & LR Act, 1960. [10] Counsel appearing State-respondents (respondents No.1 and 2 in the writ petition) argued before the learned Single Judge that the writ petition was not maintainable because the petitioners should have approached the Civil Court before approaching the High Court in a writ petition. Counsel argued that there was no breach of Section 187 (1) of the TLR & LR Act, 1960 in the alleged transaction since the transaction took place between two tribals. Counsel relied on the following averment made by the State-respondents in their counter affidavit: “It is pertinent to mention here that it was also observed by the learned District Collector that the subject matter of the case for which the petitioner had sought relief is not related Page - 10 of 16 with the Section 187 of the TLR and LR Act, since both the parties concerned of the case were tribal whereas case under Section 187 of the TLR and LR deals with the matter between tribal and non tribal. As such, the learned Collector rejected the claim of the petitioners in accordance with law and within the ambit of the TLR and LR Act, 1960.” [11] The Learned Single Judge on appreciation of the submissions made by the counsel representing the parties arrived at the conclusion that the alleged transfer of land was not carried out in accordance with the provisions of Section 187 (1) of the TLR & LR Act, 1960. Learned Single Judge also held that in terms of the Societies Registration Act 1860, the movable or immovable property of a society are held in the name of the society and no individual can be permitted to hold any property by the name of the society. Therefore, the question of the person representing the society being a tribal was irrelevant. [12] It was further held by the learned Single Judge that the order dated 07.06.2011 passed by the District Collector in revenue case number 375/ 2009 and order dated 27.07.2013 passed by the Revenue Secretary as revisional authority in case number 12/Rev/Revision/Secy/2011 were passed wholly on a wrong premise that the transaction was between two tribal individuals. Observation of the learned Single Judge is reproduced herein below: Page - 11 of 16 “……20. Having appreciated the submission made by the learned counsel appearing for the parties the pertinent questions those require answer from this court are as under :

#1. Had the transaction been carried out in violation of Section 187(1) of the TLR & LR Act, 1960? 2. Can the Don Bosco Centre be treated as „tribal‟ for purpose of Section 187(1) of the TLR & LR Act, 1960? and 3.Are the orders passed by the District Collector and the the Government of Tripura, Revenue Secretary Department are sustainable in law?

#21. Let us take the first question first - whether these transaction had been carried out in accordance with the provisions of Section 187(1) of the Tripura Land Revenue and Land Reforms Act, 1960. The answer must be in the negative inasmuch as the society as registered under the Societies Registration Act, 1860 by any stretch of interpretation cannot be treated firstly as individual or collectively as tribal. The entities which are exempted under Section 187 of the TLR & LR Act are clearly stipulated. Barring those entities, none else can be permitted to engage themselves in transfer of land from a tribal person by the soute. Even coming in the possession after 01.01.1969 over the land belonging to a tribal person by a non-tribal person or entities shall be grossly illegal. By way of 6th Amendment Act in the TLR & LR Act, 1960 has been made a punishable offence, subject to the notification. In view of this observation, the contention as raised by Mr. K.N. Bhattacharjee, learned senior counsel are reflected in the question No.2 above, shall fall through inasmuch as the “society” in terms of the Societies Registration Act, 1860 holds their movable or immovable property if not in the name of trustees but in the name of the board of governments the governing body, in terms of their own memorandum of association and by laws. No individual is permitted to hold any property by the name of the society. Therefore the said contention is rejected. As regards the final question that whether those orders dated 07.06.2011 passed by the District Collector, West Tripura, Agartala in Revenue Case No.375 of 2009 [Annexure P/4 to the writ petition] and dated 27.07.2013 passed by the Secretary to the Revenue Department in Case No.12/Rev/Revision/Secy/2011 are valid or not, it has to be clearly stated that those were passed wholly on a wrong premise, holding that the transaction was between two tribal individuals. Such observation has emanated from the fact that the society was represented by a tribal person for purpose of accepting the gift. But in the gift deed, the society is the donee. It is unfortunate that senior functionaries of the state administration who are entrusted with the powers to be exercised under the statute are deciding the matters in such a casual manner without applying their mind and having no regard to the provisions of law. Thus both the impugned orders dated 07.06.2011 and 27.07.2013 are set aside and quashed. But the matter would not end here. This court would further direct the Secretary to the Government of Tripura, Revenue Department to remit the matter to the Sub Divisional Magistrate, the designated authority, for deciding whether the land in question should be restored or not, in terms of the petition filed by the Page - 12 of 16 petitioners [Annexure P/3 to the writ petition] within a time frame what shall be laid by the Secretary to the Government of Tripura, Revenue Department.

#22. Before parting with the records, it is to be noted that this court would be failing in its duties, if it is not mentioned that any transaction which is carried out in violation of Section 187 of the TLR & LR Act even by the registered instrument as is in the present case by the registered gift deeds, shall be treated as void for all purposes. Having observed thus, this writ petition stands allowed to the extent as stated above………….” [13] Heard Mr. Soumendu Roy learned counsel appearing for the appellant as well as Mr. M. Debbarma, learned counsel appearing for the respondents. [14] Mr. Roy, learned counsel for the appellant has argued that the society represented by the appellant is engaged in promotion of education and welfare of the tribal communities. The members of the governing body of the society of the appellant are mostly tribals and more particularly the recipient of the gift deeds was also tribal and appreciating these facts the District Collector as well as the Secretary to the Revenue Department held that the transfer of land between respondents No.1 & 2 and the appellant was a transaction from tribal to tribal and as such there was no application to Section 187(1) of the TLR & LR Act. Counsel submits that there is no error in the findings of the District Collector and that of the Secretary to the Page - 13 of 16 Revenue Department which should have been upheld by the learned Single Judge. [15] The State-counsel appearing for the State-respondents supports the contention of the counsel of the appellant and argues that since both the parties to the transaction were tribal, the bar under Section 187(1) of the TLR & LR Act would not apply in this case. [16] Counsel appearing for the private-respondents (writ petitioners) argues that the learned Single Judge has correctly held that the transfer of land was in violation of Section 187(1) of the TLR & LR Act. Counsel contends that there is no reason to interfere with the impugned judgment and order of the learned Single Judge. [17] Before the gamut of the facts of the present case are re- appreciated, it would be appropriate to have a cursory glance of Section 187 of the TLR & LR Act, 1960. Section 187 of the TLR & LR Act, as it stands today, reads as under: “187 (1) No transfer of land belonging to a person who is a member of the Scheduled Tribes shall be valid unless- the transfer is to another member of the Scheduled Tribes; or (a) (b) where the transfer is to a person who is not a member of the Scheduled Tribes, it is made with the previous permission of the collector in writing in the manner to be prescribed by rule, or Page - 14 of 16 (c) the transfer is by way of mortgage to a Co-operative Society or to a Bank or to the Tripura Housing Board, or to the Central or the State Government or any other financial institutions or Corporations as may be notified by the Government in the Official Gazette from time to time for the purpose. Provided that the land so mortgaged in pursuance of clause (c ) shall not be transferred by such mortgage to a person who is not a member of the Scheduled Tribes. Explanation-In this sub-Section, the expression, „a bank‟ shall have the same meaning as in section 109. (2) (a) Notwithstanding anything contained in the Transfer of Property Act, 1882, but subject to the provision of section 187A, no transfer of land belonging to a person who is a member of the Scheduled Tribes shall be valid unless made by a registered instrument. (b) No transfer or instrument of transfer including a decree or order passed by any court, Tribunal or Authority, made in contravention of sub-section (1) shall be registered or in any way recognized as valid in any court, Tribunal or Authority. (3) No decree or order shall be passed by any court, Tribunal or Authority in any case other than the cases as specified in Clause (c ) of sub-section (1) for the sale of the land or any portion thereof, of a person belonging to scheduled Tribes nor shall any such land be sold in execution of any decree or order” [18] From a plain reading of Section 187, it would appear that transfer of land from tribal to non-tribal is invalid unless it is done in accordance with the procedure laid down under Section 187 or such transfer falls within the exceptions provided under the provisions of Section 187 of the TLR & LR Act, 1960. The District Magistrate and Collector as well as the Revenue Secretary committed error in treating the appellant society as tribal and holding that the transaction was between two tribal individuals on a wrong premise Page - 15 of 16 that recipient of the gift deeds who was representing the appellant society was a tribal. [19] We are in complete agreement with the learned Single Judge that in terms of Section 5 of the Societies Registration Act, 1960, the property, movable and immovable, belonging to a society registered under it, if not vested in trustees, shall be deemed to be vested for the time being in the governing body and such property in all proceedings, civil and criminal, may be described as the property of the governing body of such society for their proper title in all civil or criminal proceedings. Therefore, even if the property is purchased by a society represented by a tribal person from a tribal person, the same cannot be treated a transaction between two tribal persons for the purpose of Section 187 of the TLR & LR Act, 1960. [20] Therefore, we are of the view that the learned Single Judge correctly directed the Secretary to the Government of Tripura, Revenue Department to remit the matter to the Sub-Divisional Magistrate, the designated authority, for deciding whether the land in question should be restored or not in terms of the petition filed by the petitioner (Annexure P/3 to the writ petition) within a timeframe that may be laid by the Secretary, Government of Tripura, Revenue Department. Page - 16 of 16 [21] Resultantly, the appeal stands dismissed and the matter is disposed of. Pending application(s), if any, shall also stand disposed of. (S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ Sabyasachi G.