Allowed

Mohan Lal Debnath v. the State of Tripura and Ors.

Tripura HC11 Oct 2017WP(C)/34/2016

Case brief

AI extract

What is this about?

The High Court quashed an order cancelling land allotment pending civil litigation. The Court held that the Revenue Court should have stayed proceedings due to pending civil suits determining possession and limited its jurisdiction to areas of breach of conditions.

What did the court decide?

The impugned order cancelling land allotment is set aside; proceedings to be recommenced upon finalization of civil suits with an expert survey.

Mohan Lal Debnath Vs the State of Tripura and Ors. — Land Acquisition | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P.(C) No.34 of 2016

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Sri Mohan Lal Debnath, son of Debendra Debnath, resident of Madhya Bharat Chandra Nagar, P.S. Belonia, South Tripura

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……… Petitioner

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– V e r s u s –

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1. The State of Tripura, to be represented by the Secretary-cumCommissioner, Revenue Department, Government of Tripura, Civil Secretariat, New Secretariat Complex, P.S. New Capital Complex, P.O. Kunjaban, Agartala, West Tripura, PIN- 799010

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2. The District Magistrate & Collector, South Tripura, P.O. & P.S. Belonia, Belonia

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3. The Sub-Divisional Magistrate, Belonia Sub-Division, South Tripura, P.O. & P.S. Belonia

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4. Sri Maran Debnath, son of Surendra Debnath of MBC Nagar, P.S. Belonia, South Tripura

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner	:Mr. D. Sarkar, Advocate
For the respondents	:Mr. B. Datta, Advocate Mr. P.K. Pal, Advocate
Date of hearing	:14.09.2017
Date of delivery of Judgment & Order	: 11.10.2017
Whether fit for reporting	: Yes No √

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[2]

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JUDGMENT & ORDER

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By means of this writ petition, the petitioner has challenged the order dated 24.11.2015, Annexure-P/1 to the writ petition [at page-69], delivered in case No.08/REV/2015 by the Sub-Divisional Magistrate, Belonia, South Tripura. By the said order dated 24.11.2015, the allotment of the land, measuring 0.16 acres comprised in R.S. Plot No.1179, measuring 0.12 acres in R.S. Plot No.1739, recorded in Khatian No.505, the land measuring 0.18 acres comprised in R.S. Plot No.1739/2231 recorded in Khatian No.506 and the land measuring 0.26 acres comprised in R.S. Plot No.1183 recorded in the Khatian No.435 all under Mouja-MBC Nagar, Tehshil- Chittamara under Sub-DivisionBelonia has been cancelled in exercise of the powers conferred by Rule 15 of the Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1962 and sub Rule VI of Rule 12 of Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1980. The said rules shall hereinafter be referred to as the Allotment Rules, 1962 and Allotment Rules, 1980, wherever it is so necessary to refer. According to the petitioner, the said land as referred above, measuring 1.36 acres in total was allotted to him. The land under reference hereinafter shall be referred as the proceeding land. It has been asserted by the petitioner that he is also the owner of another tract of land measuring 1.64 acres which is recorded in the Khatian No.435, Annexure-P/2 to the writ petition [at page-16]. The said land as recorded under Khatian

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[3]

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No.435 under Mouja- Madhya Bharat Chandra [MBC] Nagar is not allotted land and hence, there is no restriction on transfer of the said land. By the allotment order No.16 dated 27.06.1991, Annexure-P/3 to the writ petition, the petitioner was allotted the proceeding land under the Allotment Rules, 1980 by the District Collector, South Tripura, Udaipur as he then was. As stated, earlier to that allotment order dated 27.06.1991, the land comprised in the plots No.1179,1739 and 1739/2231 measuring 1.70 acres recorded under Khatian No.505 of Mouja-MBC Nagar was allotted to the petitioner and two others namely, Sri Sadhan Debnath and Smt. Sefali Debnath. According to the petitioner, by the said order dated 27.06.1991, Annexure-P/3 to the writ petition, the land measuring 1.36 acres [the proceeding land] was allotted and he was in possession over the said land. No breach of condition as laid in the order of allotment dated 27.06.1991 as occurred, as claimed by the petitioner.

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[2] The respondent No.4 along with others namely, Sri Narayan Paul, Sri Bishnu Paul, Sri Manik Paul and Sri Jaharlal Paul filed a petition to the Sub-Divisional Magistrate, the SDM in short, to cancel the allotment in respect of the proceeding land which is recorded under Khatian Nos.435 and 505 of Mouja-MBC Nagar. Based on the said complaint dated 23.12.2013, Annexure-P/5 to the writ petition, the SDM had directed an inquiry in respect of the possession. By the order dated 15.02.2015, Annexure-P/6 to the writ petition, the SDM directed the Revenue Inspector, Belonia to

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[4]

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cause an inquiry and submit a detailed report for the next course of action. The said case was registered as the case No.08/REV/2015. On 25.03.2015 as it is reflected in the order dated 25.03.2015, the petitioner informed the SDM, Belonia that 2(two) Civil Suits being T.S. 59/2013 and T.S.60/2013 were pending in the court of the Civil Judge, Jr. Division, Belonia in respect of the said land. Even the mutation of the record of rights [Khatian] in the name of Sadhan Debnath and his legal representatives [LRs] and others was challenged. The order dated 14.05.2015 is very pertinent in the context. The relevant part of the said order is extracted hereunder:

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“Received enquiry report of DCM, Belonia. Perused.

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Ld. Advocate for 1^st party raises objection against the report of DCM Belonia on the ground there is a discrepancy in the area of land under possession of the 2^nd party in the reports submitted by R.I Belonia and DCM Belonia.

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On perusal of case records, it is found that there is difference in the area under possession of the 2 parties in 3 plots out of the 4 plots.

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Ld. Advocate for 2^nd party member Mohan Lal Debnath raises objection against the enquiry report of DCM Belonia on the ground that the enquiry report does not mention the period since when the 2^nd party is in possession over the disputed land.

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In light of the above, DCM D. Kalai is hereby directed to conduct fresh filed enquiry and submit report before the next date of hearing.

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Ld. Advocate for 2^nd Sefali Debnath prays for submission of plaint of 1^st party. Bench Clerk directed to provide copy of plaint to Ld. Advocate for Sefali Debnath.

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On perusal of the records, it is found 1^st party has filed a T.S. vide case No.59/2013 & T.S. case 60/2013 over the disputed land which is pending in the Court of the Civil Judge (Jr. Division), Belonia. Ld. Advocate for 2^nd party submits copy of death certificate & survivor certificate of 2^nd party member Lt. Sadhan Debnath. Bench Clerk is directed substitute the name of Sadhan Debnath with his survivals.

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Next date fixed on 10.06.2016 for submission of enquiry report by DCM D. Kalai and appearance of survivors of Ld. Sadhan Debnath.

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[5]

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Issue notice to survivors of Ld. Sadhan Debnath accordingly.”

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[3] In terms of the order dated 14.05.2015, the inquiry report was submitted by Sri D. Koloi, DCM. Having received the said inquiry [or the re-inquiry] report, the petitioner and others having interest in the proceeding land filed a written submission before the SDM, Belonia, South Tripura. In the said written submission, the petitioner raised the following points:

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(i) The SDM does not have the jurisdiction to take up the proceeding for cancellation of allotment after lapse of long years. Moreover, since the orders of allotment, Annexures-3 & 4 to this writ petition, were passed by a superior authority, namely the District Collector, the SDM cannot take up the jurisdiction for cancellation of those orders.

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(ii) In pendency of the Civil Suits being T.S. 59 of 2013 and T.S. 60 of 2013, the revenue court ought not have taken the proceeding for cancellation of allotment.

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(iii) There is serious suppression of facts. The respondent No.4 and others did not disclose the fact of pendency of those civil cases at the threshold.

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(iv) The petitioner was although in the peaceful possession of the allotted land and there was no basis to reopen that aspect of the matter.

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[6]

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(v) In the re-inquiry report dated 08.06.2015, Annexure-P/9 to the writ petition, which suppressed the earlier report dated 16.04.2015 endorsed by the Deputy Collector after giving detail description of the inquiry, it was observed that the respondent No.4 and others were possessing the disputed land.

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[4] It appears from the records produced with the writ petition, a further inquiry was conducted at the direction of the SDM in presence of the petitioner and the respondents and the report thereof, was submitted on 28.07.2014 [pages 57 to 58 of the writ petition]. For purpose of reference, the relevant part of the said report as substantively relied by the SDM at the time of passing the impugned order is reproduced hereunder:

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“As per yours order No.F.5(3-B)SDM/BLN/REV/13-14 dated 17.07.14, I am verified the prayer with Chittamara.

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Appellant Maran Debnath and other 4 persons of MBC Nagar Mouja, Khatian No.435 and 505, Dag No.1183, 1739, 1179,1179/2231 under Chittamara T.K. in the name of Mohanlal Debnath, S/O- Debendra (2) Sadhan Debnath, S/ODebandra (3) Sefali Debnath, D/ONarayan Debnath.

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Enquiry time local Pradhan and 28 others villagers were present in filed. Old persons namely (1) Gopal Tripura S/OKrishnamohan (2) Punirai Tripura, S/OAnandamohan (3) Amar Krishna Paul, S/O- Subal (4) Sunil Debnath S/O- Krishnahari (5) Rakhal Debnath, S/ORajani (6) Himangshu Debnath, S/O- Barada was present in filed. As per verbal allotment this land allotted in the year 1393 and 1398 B.S. This allotment given by Settlement Department in full dag and full area without field verification and without possession.

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As per office record it is revealed that the Khatian No.435 in the name of Mohan Debnath (2) Narayan Debnath (3) Sefali Debnath Dag No.1183 area 164 acres Khatian No.505 in the name of Mohan Debnath S/O Debendra Debnath, Dag No. 1179,1739,1739/2231, total Area 1.36 acres.

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As per field verification Khatian No.435 dag No.1183/P. Total area .89 acres occupied by allotte Mohan Debnath, Narayan Debnath and Sefali Debhath. Other 0.75 acres occupied by Maran Debnath and Narayna Paul and Bishnu

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[7]

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Paul. Khatian No.505 total area 1.36 acres. Mohan Debnath occupied .66 acres another .70 acres occupied by Manik Paul, Jaharlal Paul, Narayan Paul,

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Allotees now occupied given below:

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Khatian No.	Dag No.	Area	Occupied by
434	1183	0.89	(i) Mohanlal Debnath (ii) Narayan Debnath (iii) Sefali Debnath
505	1179 1739/2231	0.26 0.40 0.66	Mohan Debnath

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Allote	es not occupi	ed	Now o	ccupied by
Khatian No.	Dag No.	Area	Area	Occupied by
434	1183/P	0.75	0.31	Maran Debnath S/O-Surendra
			0.44	Narayan Paul Bishnu Paul S/O-Prakesh Paul
505	1739/2231(P) 1739	0.18 0.20	0.18	Narayan Paul Bishnu Paul
	1179(P)	0.32 0.70	0.20	Jaharlal Paul S/O-Monmohan Paul
			0.32	Manik Paul S/O-Harimohan Paul

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As per local enquiry it is reveals that the allotment given without filed enquiry and without possession.

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So may be recommended for cancellation 0.75 acres in Khatian No.434 Dag No.1183/P and 0.70 acres Khatian No.505 as per above statement and this land enclose in Tripura Sarkar Khatian.”

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[5] Pertinently, it has been observed in the said report that allotment was given without any filed verification and without handing over possession to the allottee. Despite that, record of right was created in favour of the allottee. Further, it has been observed that the plot No.1183/P having total area of 0.89 acres is occupied by Mohanlal Debnath [the petitioner], Narayan Debnath and Sefali Debnath. The remaining part of the said plot measuring 0.75 acres is occupied by the respondent No.4, Narayan Paul and Bishnu Paul. The said plot is recorded in the Khatian No.505. The petitioner is occupying 0.66 acres whereas

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[8]

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the remaining part of the said land recorded in Khatian No.505 measuring 0.70 acres is occupied by Manik Paul, Jaharlal Paul and Narayan Paul. The occupations have been shown in the table. Thus, a suggestion for cancellation about certain parts which are unoccupied was made in the report. Clearly this report dated 28.07.2014 does not tally with the report dated 08.06.2015. The report dated 08.06.2015 is definitely inadequate. Having perused the records the SDM, Belonia passed the order dated 24.11.2015 wholly based on the report dated 08.06.2015, Annexure-P/9 to the writ petition. For purpose of reference, the relevant part of

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the order dated 24.11.2015 is as well extracted hereunder:

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“1^st party prayed for cancellation of allotment made in favour of 2^nd party in respect of land in R.S. Plot No.1183, Khatian No.435 & R.S. Plot No.1179,1739 & 1739/2231, Khatian No.505, Mouja-MBC Nagar & T.K. Chittamara on the ground that the allotted land is in possession of the 1^st party and their family members since the last 50-60 years. The 1^st party states that they have constructed dwelling hut on the allotted land besides growing valuable trees and paddy crop on it. The 1^st party further states that they were not aware that the land under their possession had been allotted to the 2^nd party & came to know about the allotment only on the receipt of notice of Civil Court on 14.12.2013.

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Filed enquiry into the matter was conducted by DCM, R. Chakraborty & DCM, D. Kalai. From the demarcation of allotted land conducted during the field enquiry, it is revealed that:

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(1) Manik Lal Paul, S/O- Lt. Harimohan Paul is in possession of 0.16 acres of land in Plot No.1179, Khatian No.505, Mouja-MBC Nagar & T.K. Chittamara.

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(2) Jahar Lal Paul, S/O- Lt. Harimohan Paul is in possession of 0.12 acres of land in Plot No.1739, Khatian No.505, Mouja-MBC Nagar & T.K. Chittamara.

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(3) Narayan Ch. Paul & Bishnu Paul, S/O- Lt. Prakash Paul are in possession of 0.18 acre of land in Plot No.1739/2231, Khatian No.505, Mouja-MBC Nagar & T.K. Chittamara.

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(4) 1^st party namely Maran Debnath, S/O- Lt. Surendra Kr. Debnath is in possession of 0.20 acre of land on the southern side of Plot No.1183,

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[9]

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Khatian No.435, Mouja-MBC Nagar & T.K. Chittamara. (5) Narayan Ch. Paul & Bishnu Paul are in possession of 0.26 acres of land in Plot No.1183, Khatian No.435, Mouja-MBC Nagar & T.K. Chhittamar.

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Further, during the enquiry it is revealed that persons whose names are mentioned at Sl. No.1-5 above are in possession of the land allotted to 2^nd party since 20-25 years. During the field enquiry, the DCMs also questioned local witnesses including Pradhan, Chittamara GP. From the statements of local witnesses, it is revealed that allotment of land was made in favour of the 2^nd party without any filed verification and without considering the aspect of possession over the allotted land. Signatures of local witnesses were also recorded by DCM during filed enquiry.

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The 2^nd party has prayed for dropping proceedings on the ground that T.S. No.59 of 2013 and T.S. 60 of 2013 is pending in the court of the Civil Judge (Jr. Division) Belonia. However, the case has not yet been disposed of and no decree has been submitted by the 2^nd party.

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The 2^nd party has also submitted copy of judgment & order of the High Court of Tripura, Agartala in Writ Appeal of 4 of 2015 dated 15.06.2015 in support of their payer for dropping proceedings. Vide letter No.F.13(7A)/DM/S/REV/2007/2448-52 dated 25.06.2007 of the DM & Collector, South Tripura, Udaipur it was clarified that SDM’s have the power to draw up proceeding for cancellation of allotment order under Sub-rule (VII) of Rule 15 of the Tripura Land Revenue and Reforms (Allotment of land) Rules, 1962 & Sub-rule (VI) of Rule 12 of the Tripura Land Revenue and Reforms(Allotment of land) Rules, 1980 without referring to the DM & Collector. The 2^nd party has prayed for dropping proceedings in the light of the judgment dated 15.06.2015 of the High Court of Tripura, Agartala as the allotment of disputed land was made in the year 1984 & 1991 respectively whereas the 1^st party submitted prayer for cancellation of allotment on 26.12.2013. Obviously, this is much more than the reasonable period of 3 years mentioned in the High Court Judgment. However, in this case the 1^st party has stated that they came to know of allotment being made to the 2^nd party through notice of the Civil Court on 14.12.2013 only & prior to that they were unaware of the fact that the land under the possession had been allotted to the 2^nd party.

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After hearing both sides & from the enquiry reports of DCM, Belonia, I am satisfied that the 2^nd party is not in possession of land (whose details are given in the table below) & it did not use this land for agriculture purpose or construction of dwelling house during the allotment or in the subsequent period after allotment.

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Tehshil	Mouja	Khatian No.	R.S. Plot No.	Area (in acres)
1	2	3	4	5
Chittamara	MBC	505	1179	0.16
	Nagar		1739	0.12
			1739/2231	0.18
		435	1183	0.46

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[10]

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I am of the opinion that the 2^nd party, in whose name, the allotment was issued, violated the conditions of allotment laid down in Rule 12 of the Tripura land Revenue and Land Reforms (Allotment Rules) 1980. Hence the allotment of 0.16 acres of land in R.S. Plot No.1739/2231 of Khatian No.505 & 0.46 acres of land in R.S. Plot No.1183 of Khatian No.435, Mouja-MBC Nagar, Tehshil Chittamara is hereby cancelled under Allotment Rules, 1980. 1^st Party member may apply for allotment of the land under their possession after incorporation into Govt. Khas land.”

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[6] Mr. D. Sarkar, learned counsel appearing for the petitioner has reiterated the objections as raised in the written submission made to the SDM, Belonia. He has submitted that since the suits filed before the Civil Judge, Jr. Division, Belonia, South Tripura were pending and the subject matter of the suits was also structured on possession, the SDM ought not have passed the final order in the cancellation proceeding being Case No.08/REV/2015. Mr. Sarkar, learned counsel has referred a decision of this court in Dhaneswar Debbarma vs. State of Tripura and others [judgment and order dated 15.06.2015 delivered in Writ Appeal No.4 of 2015] where this court had occasion to hold as under:

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“At the outset, we may notice that the land was allotted in favour of the writ petitioner in the year 1988. Assuming that there was any error in the allotment, such allotment should have been challenged within a reasonable time. Allotments cannot be set aside after expiry of reasonable period. What is a reasonable period may depend on the facts of a particular case but normally the reasonable period will not exceed 3 years at the most. It is only in cases where fraud is proved that the period of limitation will start from the date of discovery of the fraud. Otherwise within a reasonable period, proceedings to cancel allotment must start. A person who is allotted land develops the land by dint of his hand work. He invests money and time on the land. After he has developed the land the allotment cannot be set aside after two decades on the ground that the objector had a better claim to the land.”

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[11]

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Hence, Mr. Sarkar, learned counsel has asserted that

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the proceeding was clearly time-barred.

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[7] From the other side, Mr. B. Dutta, learned counsel appearing for the respondents No.1,2 & 3 has defended the order of the SDM, Belonia and stated that the petitioner had violated the conditions of allotment laid down in Rule 12 of the Allotment Rules, 1980. He has further submitted that in the very petition filed by the respondent No.4 it has been asserted that the respondent No.4 and others came to know about the allotment only when they had received the notice from the civil court on 14.12.2013. Prior to that, they were unaware of the fact that the land had been allotted to the petitioner and others. Thus, the judgment in Dhaneswar Debbarma (supra) will not help the petitioner on the question of limitation. In Para-10 of the reply, the respondents No.1,2 & 3 have further stated that the petitioner and others are the recorded tenants in Khatian No.435 comprised of R.S. Plot No.1183 measuring 1.64 acres classified as tilla under MBC Nagar and in Khatian No.505 comprised of Plot No.1179, 1739,1739/2231 measuring 1.36 acres classified as tilla under Mouja-MBC Nagar. By the allotment order dated 27.06.1991 the District Collector, South Tripura as he then was, had allotted 1.36 acres of land under R.S. Plot No.1179,1739, 1739/2231 classified as tilla to the petitioner. But according to the respondents No.2 and 3, the said land as allotted was being possessed by (i) Maniklal Paul [for an area measuring 0.16 acres

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[12]

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in R.S. Plot No.1179 recorded in Khatian No.505 under the said Mouja] (ii) Jaharlal Paul [for an area measuring 0.12 acres in R.S. Plot No.1739 recorded in Khatian No.505 of the said Mouja] and (iii) Sri Narayan Ch. Paul [for an area measuring 0.18 acres in R.S. Plot No.1739/2231 recorded in Khatian No.505 of the said Mouja]. Thus, the total land under possession of the said persons is 0.46 acres under Khatian No.505. The respondents No.1,2 & 3 have further submitted that the District Collector has also allotted a tract of land measuring 1.70 acres in R.S. Plot No.1183 classified as tilla to one Sadhan Debnath, his wife Smt. Sefali Debnath and the petitioner. Out of that allotted land under R.S. Plot No.1183, the respondent No.4 was in possession of an area of land measuring 0.20 acres recorded in Khatian No.435 under the said Mouja. The other persons, namely Narayan Ch. Paul & Bishnu Paul are in possession of an area of land measuring 0.36 acres from the said R.S. Plot No.1183, Khatian No.435 under Mouja-MBC Nagar. The said statements are not in conformity with the report dated 08.06.2015, which according to this court is too vague to be relied on.

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[8] The respondent No.4 has also filed a separate reply and in defence of the impugned order has submitted that the land described in the schedule of the writ petition is entirely in his physical possession for more than 50-60 years and in that land he has the domestic electric connection. That apart, the respondent No.4 has raised the question of maintainability of the writ petition

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[13]

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in view of the provisions made under Sections 93 and 95 of the TLR and LR Act, 1960 and finally, Mr. P.K. Pal, learned counsel appearing for the respondent No.4 has submitted that there is no infirmity and illegality in the impugned order. Mr. Pal, learned counsel has fairly admitted that the suits filed by the petitioner in the court of the Civil Judge, Jr. Division, Belonia are for recovery of the possession from the respondent No.4 and those suits were filed on the basis of concoction of facts.

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[9] By way of rejoinder, the petitioner has filed the plaint of T.S.60 of 2013 and the written statement. That apart, by filing the rejoinder on 27.07.2016, the petitioner has asserted that on the face of the institution of the suit, the said petition for cancellation of the allotment was filed by the respondent No.4 and others. It has been also asserted that the respondent NO.4 and others also filed a counter claim in the same civil court on 03.02.2015 even before filing the said petition for cancellation of the allotment. From the reading of the plaint and the counter claim, it has surfaced that the suit was filed for declaration and recovery of the suit land measuring 1.36 acres, which is the land allotted by the allotment order dated 27.06.1991 whereas the counter claim is for declaration of right by adverse possession in respect of Schedules-A & B land in Plot No.1183, Khatian No.435 measuring 1.20 acres [Schedule-A]. It is therefore, obvious that Schedule-A land according to the reply filed by the respondents No.1,2 & 3 is part of the land allotted by the order dated

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[14]

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24.07.1986, Annexure-P/4 to the writ petition. In terms of the said allotment order dated 24.07.1986, the total land as allotted is measured at 1.70 acres. Therefore, even the petitioner and others are not claiming the possession over the entire allotted land measuring 1.70 acres. However, by the separate schedule [Schedule-B] the respondent No.4 and another, the counter claimants in T.S.(Counter Claim) 01 of 2015 have claimed possession of another 0.40 acres from the Plot No.1183 of Khatian No.435 of the said Mouja though by filing the written statement they had denied the dispossession caused by them.

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[10] Having appreciated the submissions made by the learned counsel for the parties and scrutinized the records so produced, the following pertinent questions surfaced for consideration:

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(i) Whether the writ petition is maintainable when there is existence of efficacious remedy under Section 93 of the TLR & LR Act and whether the SDM, Belonia had the jurisdiction to take up a proceeding for cancellation of the allotment order issued by the District Collector?

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(ii) Whether the pendency of the civil suits has any relevance in determining the prayer for cancellation of the allotment orders?

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(iii) Whether the findings as returned by the SDM are on the face sustainable and

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(iv) Whether the proceeding was barred by limitation in view of the decision of this court in Dhaneswar Debbarma (supra)?

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(i) Whether the writ petition is maintainable when there is existence of efficacious remedy under Section 93 of the TLR & LR Act and whether the SDM, Belonia had the jurisdiction to take up a proceeding for cancellation of the allotment order issued by the District Collector?

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[11] At the threshold, a revisit to the provision of Section 93 of the TLR & LR Act which provides for appeals from the original order passed under the TLR & LR Act, 1960 is felt essential for reference. Sub Section 1 of Section 93 of the said Act provides that an appeal shall lie from every original order passed under the said act. There cannot be any amount of dispute that the proceeding as drawn was under sub Rule (6) of Rule 12 of the Allotment Rules, 1980. It is common knowledge that Section 14 of the TLR & LR Act, 1960 is the source of power for allotment of land which provides as under:

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“14. Allotment of land.

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(1) The Collector may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rules as may be made in this behalf under this Act; and such rules may provide for allotment of land to persons evicted under section 15.

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(2) The Administrator shall have power-

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(a) to allot any such land for the purpose of an industry or for any purpose of public utility on such conditions as may be prescribed, or

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(b) to entrust the management of any such land or any rights therein to the gram panchayat of the village established under any law for the time being in force.”

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The rules made thereunder are for regulating such allotment and as such, the order passed in the cancelation proceeding is an order passed under the TLR & LR Act, 1960 and hence, such order is no doubt appealable. In ordinary course it is

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[16]

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incumbent upon the person who is aggrieved by any order passed in the cancellation proceeding to approach the appellate authority under Section 93(1) or under Section 93(2) within the period of limitation. But existence of alternative remedy shall not universally render a writ petition unsustainable when the order is passed without jurisdiction and when it is found that there is a complex question of jurisdiction or there was failure of justice. In this writ petition, the issue of complex question of jurisdiction has been raised by the petitioner vis-a-vis the pendency of the civil suit over the same subject matter and hence, the in given context this court is not inclined to discard the writ petition for not availing the alternative remedy as was available to the petitioner. So far the question of the jurisdiction of the SDM is concerned, this court does not find any substance in such objection inasmuch as the SDM has been exercising the power of the District Collector by virtue of delegation and as such, the District Collector cannot be the appellate forum against any order passed by the SDM. The said order passed by the SDM shall have to be deemed to have passed by the District Collector. Even the District Collector during pendency may take up the proceeding for decision on his own motion or having been approached by the parties.

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(ii) Whether the pendency of the civil suits has any relevance in determining the prayer for cancellation of the allotment orders?

¶115

There are two aspects in this question viz. (a)

¶116

whether mere pendency of a civil suit in respect of the same land

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W.P.(C) No.34 of 2016 Page 16 of 21

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[17]

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would create a bar to carry out the proceeding for cancellation of the allotment order and (b) whether in the present context the SDM was correct in taking the proceeding to its end. So far the first aspect is concerned, the answer must be in the negative inasmuch as whether a proceeding should be carried or stayed would depend on the nature of the controversy projected in the suit. If it is found that there is no issue relating to the conditions of the allotment such as the possession, there cannot be any bar to continue with the proceeding. For example, between the petitioner and Smt. Sefali Debnath another suit being T.S.(P)59 of 2013 in the same civil court was pending [see page 45 of the writ petition]. Pendency of such suit could not be the ground for staying the proceeding in respect of cancellation of the allotment. So far the second aspect is concerned, the SDM would have demonstrated her prudence if she stayed the proceeding inasmuch as the controversy in the suit and the counter claim is fundamentally on the aspect of possession or dispossession from the proceeding land as well as on the claim of adverse possession. The possession being the fulcrum of the entire controversy, the SDM should have waited for its conclusion and hence, the petitioner was right to raise some objection in the context. In this regard, it would be apposite to declare that the title based on the allotment order is always a contingent title even if the civil court declares any right based on the said title. The contingent title does not transform to a regular title. The

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[18]

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jurisdiction of the competent authority under the Allotment Rules, 1980 cannot be deemed to have eclipsed therefor. It shall remain open to be decided by the competent authority on the grounds of breach of conditions as provided under Rule 12 of the Allotment Rules, 1980. Therefore, the persons who were seeking cancellation would not be prejudiced if the proceeding till disposal of the civil suit and the counter claims is stayed subject to what has been observed above. This court is therefore, of the view that when the petitioner has pointed out that the suit in respect of the same land was pending in the civil court of the competent jurisdiction, the SDM should have asked the petitioner to submit the copies of the plaint of those suits or if necessary, of the counter claims for purpose of prima facie deciding whether she would proceed or stay the said proceeding. In this regard, the SDM has failed in her duty and hence, the final order is interfered with and set aside inasmuch as unless the aspect of dispossession is determined by the competent civil court for the same being in seison, it would not be proper for the revenue court to return a decision in this regard as the revenue court does not have the general powers to record evidence as the civil court does have. The SDM should have stayed the proceeding till finalisation of the suit/counter claim.

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(iii) Whether the findings as returned by the SDM are on the face sustainable?

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Though it is not necessary in view of the finding as

¶125

returned above to delve in the merit of the impugned order, but

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W.P.(C) No.34 of 2016 Page 18 of 21

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[19]

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this court finds that there are serious conflicting views reflected in the inquiry reports of the Revenue Inspector dated 28.07.2014 [see pages 57 to 58] and the re-enquiry report of the Deputy Collector dated 08.06.2015, Annexure-P/9 to the writ petition. Even what the respondents No.1,2 & 3 have stated in their reply is in conflict to the finding of the SDM. According to this court, the report dated 08.06.2015 is vague and cannot be relied for determining the possession. Even in the impugned order there is no finding in respect of the plots where the possession of the respondent No.4 and others are confirmed or denied. Even there is no reference to the allotment orders.

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In the result, this court is persuaded to set aside the impugned order dated 14.11.2015. However, the proceeding shall start afresh on finalisation of the suit/counter claim with engagement of an expert in surveying the plots for determining the possession. Moreover, such recommencement, needless to say, shall be subject to the outcome of those suit/counter claim. The parties shall produce the judgment of the civil court before the SDM, Belonia on conclusion of the suit/counter claim when the SDM shall examine those judgments and decide whether the proceeding is required to be continued or not having due regard to the finding of the civil court in respect of possession. During the period the parties shall maintain the status quo but the civil court shall remain with jurisdiction to pass the appropriate interim

¶130

or temporary orders, if required.

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[20]

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(iv) Whether the proceeding was barred by limitation in view of the decision of this court in Dhaneswar Debbarma (supra)?

¶134

In Dhaneswar Debbarma (supra) while setting up

¶135

the period of limitation, this court curved out that only in cases where the fraud is proved, the period of limitation will start from discovery of the fraud. In this case, the respondent No.4 has stated in his petition that without inquiring into their possession, the allotment was made and they only came to know that such order of allotment was issued when they received the notice from the civil courts. Even the inquiry report has clearly stated that at the time of giving allotment there was no field survey. Whether those assertions are true or not can be enquired into by the SDM by calling the records etc. The burden for this purpose would lie with the person who raised such objection of limitation. In this case, the SDM was correct in holding that the reason given by the respondent No.4 makes out a prima facie case of lack of knowledge which indicates to fraud upon the respondent No.4 and others who have claimed possession over the proceeding land. Therefore, on that count the proceeding cannot be held not maintainable at the threshold, meaning if it is proved that such plea was not true, obscene of survey and to be in the possession anterior to the allotment the necessary consequence shall follow.

¶136

[12] In short, impugned order dated 24.11.2015, AnnexureP/1 [at page 69] is set aside and quashed and the proceeding shall recommence on finalisation of the suit/counter claim by

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[21]

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engaging one expert in surveying the plots. Before that, the SDM shall appreciate the judgments of the civil court for deciding whether the proceeding shall continue or not in view of the findings returned by the civil court. Till then, the status quo in respect of the possession over the proceeding land shall be maintained by the parties. However, the civil court shall be at liberty to pass the appropriate interim order till disposal of the suit, if the emerged circumstances so demand.

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[13] Subject to what has been observed above, this petition stands allowed. There shall be no order as to costs.

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JUDGE

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Sujay

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W.P.(C) No.34 of 2016 Page 21 of 21

Mohan Lal Debnath v. the State of Tripura and Ors.

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Mohan Lal Debnath v. the State of Tripura and Ors.

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