On November 27, 2016, the Supreme Court came up with a ruling that could have far reaching implications on tribal land ownership and perhaps nullify the respective state Land Transfer Acts. The apex court, in a case involving the United Commercial Bank vs Dipak Debbarma, a tribal from Tripura held that banks can sell tribal land mortgaged to them to non-tribals, even if prohibited by state laws. The Court held that according to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the bank is allowed to sell off mortgaged property to anyone, tribal or non-tribal, for realisation of its dues. The 2002 Act will prevail over the provisions contained in Section 187 of the Tripura Land Revenue and Land Reforms Act, 1960 and by extension to similar laws in other tribal majority states.
Here the Court has relied on the supremacy of the Parliamentary legislation over the provisions of the Tripura Act, which prohibits the bank from transferring the property which has been mortgaged by an ST member to a non-ST person. Thus far the banks could sell property mortgaged by a tribal only to another tribal. This ruling should have jolted all the tribal states of the North East. The Land Transfer Acts in scheduled areas was meant to be a protective mechanism so that affluent non-tribals would not be able to buy land in tribal areas. The November 27 ruling has now put paid to the Land Transfer Acts and also reduced the limits of the Sixth Schedule of the Constitution. It is ironic that this issue is not being deliberated by the candidates contesting the bye-elections to the District Council in Meghalaya or by different political parties.
This ruling is dangerous as it would enable unscrupulous tribals to exploit the loopholes in the parliamentary statute relied upon by the apex court, to sell off land which they could hitherto not do, on account of the Land Transfer Acts, by stating that they had mortgaged the land to different non-tribal entities. This ruling effectively debunks the efficacy of the Sixth Schedule in protecting tribal land and customary practices, since a tribal’s very existence is linked to his/her land.
