Tripura High Court
Sri Gopal Krishna Das vs The State Of Tripura on 5 June, 2018
Equivalent citations: AIRONLINE 2018 TRI 32, AIRONLINE 2018 TRI 271
Author: Ajay Rastogi
Bench: Ajay Rastogi
Page - 1 of 13
HIGH COURT OF TRIPURA
AGARTALA
(1) WP(C) NO.182/2017
1. Sri Gopal Krishna Das,
S/O. Late Satish Ch. Das.
2. Smti. Kanan Bala Das,
W/O Sri Gopal Krishna Das,
Both are resident of
Vill & P.O. South Bharat Chandra Nagar,
P.S. Belonia, District-South Tripura.
----Petitioners
Versus
1. The State of Tripura,
Represented by the
Secretary-cum-Commissioner,
Revenue Department,
Government of Tripura,
Secretariat Building,
New Capital Complex,
P.O. Kunjaban, Agartala,
District-West Tripura.
2. The Sub-Divisional Magistrate,
Government of Tripura,
Belonia,
District-South Tripura.
3. Deputy Collector,
Belonia Revenue Circle,
Belonia,
District-South Tripura.
4. Revenue Inspector,
Belonia Revenue Circle,
Belonia,
District-South Tripura.
5. Binode Bihari Debnath,
S/O Late Gopal Krishna Debnath
of Vill-Sukanta Nagar,
P.O. South Bharat Chandra Nagar,
P.S. Belonia,
District-South Tripura.
----Respondent(s)
Page - 2 of 13
(2) WP(C) NO.183/2017
1. Sri Gopal Krishna Das,
S/O. Late Satish Ch. Das.
2. Smti. Kanan Bala Das,
W/O Sri Gopal Krishna Das,
Both are resident of
Vill & P.O. South Bharat Chandra Nagar,
P.S. Belonia, District-South Tripura.
----Petitioners
Versus
1. The State of Tripura,
Represented by the
Secretary-cum-Commissioner,
Revenue Department,
Government of Tripura,
Secretariat Building,
New Capital Complex,
P.O. Kunjaban, Agartala,
District-West Tripura.
2. The Sub-Divisional Magistrate,
Government of Tripura,
Belonia,
District-South Tripura.
3. Deputy Collector,
Belonia Revenue Circle,
Belonia,
District-South Tripura.
4. Revenue Inspector,
Belonia Revenue Circle,
Belonia,
District-South Tripura.
5. Sri Dinabandhu Das,
S/O Late Nabadwip Das,
of Vill-Sukanta Nagar,
P.O. South Bharat Chandra Nagar,
P.S. Belonia,
District-South Tripura.
----Respondent(s)
Page - 3 of 13
(3) WP(C) NO.184/2017
1. Sri Gopal Krishna Das,
S/O. Late Satish Ch. Das.
2. Smti. Kanan Bala Das,
W/O Sri Gopal Krishna Das,
Both are resident of
Vill & P.O. South Bharat Chandra Nagar,
P.S. Belonia, District-South Tripura.
----Petitioners
Versus
1. The State of Tripura,
Represented by the
Secretary-cum-Commissioner,
Revenue Department,
Government of Tripura,
Secretariat Building,
New Capital Complex,
P.O. Kunjaban, Agartala,
District-West Tripura.
2. The Sub-Divisional Magistrate,
Government of Tripura,
Belonia,
District-South Tripura.
3. Deputy Collector,
Belonia Revenue Circle,
Belonia,
District-South Tripura.
4. Revenue Inspector,
Belonia Revenue Circle,
Belonia, District-South Tripura.
5. Sri Umesh Chandra Das,
S/O Payari Mohan Das
of Vill-Sukanta Nagar,
P.O. South Bharat Chandra Nagar,
P.S. Belonia,
District-South Tripura.
----Respondent(s)
Page - 4 of 13
For petitioners(s) : Mr. Ratan Datta, Adv.
Ms. S. Chakraborty, Adv.
For Respondent(s) : Mr. M. Debbarma, Addl. GA.
Mr. H. Laskar, Adv.
Mr. S. Datta, Adv.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
Judgment Reserved on : 30.05.2018
Judgment Pronounced on : 05.06.2018
JUDGMENT
Since the batch of writ petitions are on the self-same facts and question of law, with the consent of the parties, are being disposed of by the present order. As consented, the facts are being noticed from WP(C) No.182/2017.
2. The seminal facts which emerged from the record relevant for the purpose are that a joint allotment was made to the petitioners for land measuring 1.25 acres, Mouja South Bharat Chandra Nagar, R.S. Plot No.2228, 2259, 2257, 2257/6099, 2231, classified as tilla, bastu(tilla) chankhala class of land vide allotment order dt. 15.02.1986 u/Sec.14(1) of the Tripura Land Revenue & Land Reforms Act, 1960(hereinafter called the Act 1960).
3. It is not disputed that after the order of allotment possession was handed over to the petitioners over the entire 1.25 acres of land and after due verification it was mutated in their name as the allottee Khatian vide No.2805 of Mouja South Bharat Chandra Nagar, Revenue Circle, Belonia vide R.S. Plot No.2228, 2259, 2257, 2257/6099, 2231(Annexure- B), and accordingly on 26.05.2008 the competent authority issued a Page - 5 of 13 certified copy of finally published Khatian in favour of the petitioners vide No.1129 for the entire land measuring 1.25 acres(Annexure-C).
4. It has been alleged by the petitioners that at later stage some of the adjacent neighbourers started interfering in the peaceful, possession of the petitioner and started to encroach upon the land of the petitioner by crossing their respective boundaries. To safeguard his interest a request was made to the Tehshilder, Belonia, District-South Tripura on 06.06.2009 for making a proper demarcation of their land the Tehshilder, Belonia submitted a report that 0.06 acres of land in Plot No.2228 and 0.05 acres of land in Plot No.2259 and 0.11 acres of land in Hal Plot No.2259 Part in Khatian No.1129 went in possession of Umesh Chandra Das, Dinabandhu Das and Binode Behari Debnath(Annexure-D).
5. To safeguard the interest of the petitioner, a civil suit came to be filed in March, 2015 for declaration of right title and interest and also the recovery of possession impleading Dinabandhu Das, Anal Bandhu Das, Umesh Chandra Das, Binode Behari Debnath and Pulin Debnath as defendants in the Court of ld. Civil Judge, Junior Division, Belonia, South Tripura in Title Suit No.14/2015(Annexure-E) and the said civil suit as informed to this Court is still pending in the Court of the ld. Civil Judge.
6. The private respondents taking benefit of the report, after institution of the suit at the instance of the petitioner, made a complaint to the ld. SDM, Belonia, South Tripura for cancellation of the order of allotment of the petitioners on the premise that the allottee is not in possession of the subject land. In defence, the petitioners pointed out that the land was initially allotted and possession was also handed over and all other formalities were complied with including mutation was opened in their name but in the year 2009 the private respondents forcefully entered into the peaceful possession of the petitioner and he being a poor and Page - 6 of 13 helpless person except filing a complaint no physical action could have been taken by him and the present complaint made for cancellation of allotment is just to deprive the petitioner of their legitimate right to hold the allotment which was made after due compliance of the provisions of law dt. 15.02.1986.
7. After the notice of the complaint from the office of the ld. SDM, Belonia, South Tripura served upon the petitioner a reply was furnished in which it was specifically stated that the petitioners are being forcefully dispossessed from part of the subject land which was allotted to them and for restoration/recovery of possession a civil suit has been filed of which notices have been served upon the complainants/respondents which is still pending before the ld. Civil Judge.
8. At this stage, behind back of the petitioner, the Dy. Collector, Belonia, South Tripura, respondent No.3 called for an enquiry report which was submitted on 26.06.2015 and based on the report of inquiry which was prepared behind the back of the petitioner, an order came to be passed by the SDM, Belonia holding that since the petitioner is not in possession of the subject land in question, accordingly cancelled the allotment of the petitioner u/R.12(vi) of the Tripura Land Revenue & Land Reforms(Allotment of Land) Rules, 1980 under its order impugned dt. 16.12.2015 is the subject matter of challenge in the present batch of writ petitions.
9. Reply has been filed by the respondent-State authorities and also by the private respondents who are also in tune with the defence of the State Government. The defence of the respondent State in their counter affidavit is that on an field inquiry it revealed that the petitioners being not in possession of the part of the subject land in question which was originally allotted to the petitioners on 15.02.1986 and accordingly Page - 7 of 13 based on the report of enquiry the conditions of the allotment being breached no error was committed by the authority in passing the order of cancellation under order impugned dt. 16.12.2015. The private respondents also filed short counter affidavit which is in tune to the justification tendered by the respondent-State.
10. It is not the case of the respondents as reflected from the field inquiry report that the petitioner was not in possession from the date of initial allotment and the field inquiry report could only reflect about the status of the subject land in question on the date on which the physical inspection has taken place to substantiate as who is in possession of the subject land in question and nothing has been placed on record as to whether if someone has been dispossessed from the subject land in question either forcefully or otherwise, what kind of breach of conditions of allotment has been committed by the allottee for which action has to be initiated against him.
11. Counsel for the petitioners submits that the field inquiry report of which reference has been made by the ld. SDM, Belonia in its order impugned dt. 16.12.2015 was never made available to the petitioner. It was neither prepared in their presence nor copy was supplied to them. The very foundation on which the authority has proceeded further in recording a finding that the petitioner was never in possession of the subject land allotted to them has been recorded behind their back and is in violation of principles of natural justice and in consequence thereof, the cancellation of the order of allotment of February, 1986 by the learned authority under the order impugned dt. 16.12.2015 is not sustainable in law.
12. Counsel further submits that since he was forcefully dispossessed and being helpless having no other means for sustainability and a law abiding person, filed a civil suit impleading the Page - 8 of 13 complainants/respondents who were claiming possession over the subject land in the Court of the ld. Civil Judge impleading all the four as defendants, which is still pending before the ld. Civil Judge. In the given circumstance, if someone has been forcefully dispossessed from the subject land in question and if a finding has been recorded that he is not in possession and that became a basis for cancellation of allotment, without taking cognizance of the pending civil suit filed at the instance of the petitioner, the action was manifestly bad in law and no other remedy was left with him and order of cancellation of allotment is certainly a gross injustice to the person/allottee who tried to hold his possession and use the land for the purpose it was allotted.
13. Counsel further submits that it is not the case of the respondents that the land has not been utilized by the petitioner for the purpose it was allotted under the Act 1960 or he has part with possession on lease or otherwise to another person which may be in contravention of the conditions of allotment. In the given circumstances, passing an order of cancellation because of forceful dispossession by the private respondent/complainants on whose instance proceedings were initiated is wholly arbitrary & abuse of power by the authority and in violation of Art.14 & 21 of the Constitution needs to be interfered by this Court.
14. Counsel for the respondents, apart from merits submits that the petitioner has an alternative remedy of appeal u/Sec.93 of Act, 1960 and all such factual aspects is open to be looked into by the appellate authority and in view of availability of alternative remedy this Court may not be inclined to interfere and invoke writ jurisdiction u/Art.226 of the Constitution of India. As regards merits, counsel submits that once this fact stands established based on the report of inquiry submitted by the authorized responsible officer of the Government holding that the petitioner is not in possession of the subject land in question which is Page - 9 of 13 indeed a violation of the terms & conditions of allotment and that has been noticed by the authority in passing the order of cancellation under order impugned, needs no further interference by this Court.
15. Counsel for the private respondent, who is the complainant on whose behalf proceedings for cancellation was initiated, join hands with the State counsel and submits that as he being in possession of the subject land in question, the order of allotment for the subject land has rightly been cancelled by the authority under its order impugned.
16. I have heard the counsel for the parties and with their assistance perused the material available on record. It is true that ordinarily when there is a provision of appeal provided under the statute, this Court should always be reluctant to exercise its writ jurisdiction u/Art.226 of the Constitution but there are well established exceptions observed by the Apex Court in its judgment reported in AIR 1999 SC 22[Whirlpool Corporation v. Registrar of Trade Marks, Mumbai] laying down three basic principles and if the case falls within the three exceptions culled out by the Apex Court, the availability of alternative remedy may not come as a bar for the person aggrieved invoking writ jurisdiction of this Court u/Art.226 of the Constitution of India.
Self imposed restrictions in exercise of writ jurisdiction:
(i) If the writ petition has been filed for the enforcement of any of the fundamental right
(ii) If there has been a violation of principles of natural justice
(iii) If the orders of proceedings are wholly without jurisdiction or the vires of the Act is challenged
17. It is not disputed that the order of cancellation passed by the District Collector dt. 16.12.2015 is appealable u/Sec.93 of Act 1960 but in the instant case, the petitioner has come with a specific case before this Page - 10 of 13 Court that the reference has been made by the learned authority under its order impugned dt. 16.12.2015 based on the field inquiry conducted by Tehsilder, Bharat Chandra Nagar and a copy of the field inquiry report was never made available to the petitioner, and that apart he was not permitted to submit his evidence in support of his defence and the authority has proceeded without affording fair opportunity to hearing to the petitioner and the field inquiry report obviously have adversarily affected the rights of the petitioner for the reason that much prior thereto a civil suit was filed by him impleading the private respondent-complainant as defendants which was pending on the date when the matter being taken up by the ld. authority on a complaint filed at the instance of the private respondents and in the given circumstances holding of proceedings for cancellation of allotment more so when the relevant material was not supplied to the petitioner and reasonable opportunity to defend not being provided to him was indeed in violation of the principles of natural justice which is certainly one of the exception covered by the Apex Court's judgment as referred to, in the given circumstances availability of alternative remedy may not come as a bar for the petitioner invoking inherent jurisdiction of this Court u/Art.226 of the Constitution of India.
18. So far the merit of the case is concerned, the allotment was made to the petitioners jointly vide order of allotment dt. 15.02.1986 u/Sec.14(1) of the Act, 1960 and it is not the case of the respondents that the petitioners have either misrepresented or committed any fraud at the time when the allotment was made or failed to fulfil the conditions for allotment as enumerated under the order of allotment dt. 15.02.1986. On the contrary, the proceedings were initiated for cancellation of allotment made to the petitioner dt. 15.02.1986 at the instance of the complainant- respondent who are their adjacent neighbourers and has claimed that they are in possession of the subject land in question and being a breach of the Page - 11 of 13 terms & conditions of allotment, the order of allotment to the petitioner dt. 15.02.1986 be cancelled and only on their complaint the proceeding for cancellation was initiated by the learned authority.
19. The petitioner came with a very specific case before this Court that after the petitioner was forcefully dispossessed from the part of the subject land in question by the complainant-respondents he made a complaint to the authorities and being a law abiding citizen having no option left but to file a suit impleading the private respondent- complainants for right, title and interest for recovery of possession and after the notices being served to the private respondent-complainant it was a counterblast on their behalf and at their instance complaint was made against the petitioner initiating proceeding for cancellation of the order of allotment.
20. In the given circumstances, it is expected from the authority to initiate the proceedings in the presence of the parties and the enquiry report which was submitted by the Tehshilder under the direction of the authority was to be provided to the petitioner, which ought to have been supplied to him and that has been made to be a basis for passing the impugned decision for cancellation under order impugned dt.16.12.2015, at the same time it was expected from the authority to provide him a reasonable opportunity of defence too but that has been denied without any reasonable justification.
21. That apart, when there was a dispute of forceful dispossession and not of parting with possession for which legal remedy was availed by the petitioner how far it was justified to hold that there has still a violation of the terms & condition of allotment made u/Sec.14(1) of the Act, 1960.
22. That order of cancellation impugned dt. 16.12.2015 indicates about the field enquiry report conducted by DCM, Belonia holding that the Page - 12 of 13 private complainant respondents are in possession of the subject land in question but the defence of the petitioner was not taken note of as to whether it is a case of forceful dispossession or encroachment by the complainant-respondent and not of part with possession and what would be the effect of the pending civil suit filed at the instance of the petitioner impleading the complainant/respondents as defendants which is still pending before the ld. Civil Judge, still based on the field inquiry report taking decision for cancellation of allotment of the petitioner holding that he is not in possession of the subject land in question, in the opinion of this Court in no manner be considered to be a violation or breach being committed by the petitioner of the terms of allotment, if any, made in February, 1986.
23. The defence of the respondents that the petitioner never being in possession from the date of allotment is something gathered from vacuum. There is no foundation for the defence with which the respondents have come before this Court in their counter affidavit. The subject land was allotted to the petitioners on 15.02.1986 with all other formalities were complied with including mutation was not open to the authorities to examine about the initial physical possession of the subject land after 30 years of allotment and the present status of the subject land in question was immaterial and of no significance in taking a decision of any violation/breach being committed by the petitioner of the terms of allotment, if any, invoking Rule 12(vi) of the Rules, 1980. In the considered opinion of this Court, the order of cancellation impugned dt. 16.12.2015 in the given facts and circumstances is not sustainable and deserves to be quashed and set aside.
24. Consequently, the writ petitions succeed and are allowed. The orders dt. 18.10.2014 & 16.12.2015 passed by the learned authority for cancellation of allotment dt. 15.02.1986 in exercise of Rule 12(vi) of the Page - 13 of 13 Tripura Land Revenue & Land Reforms Rules, 1980 are hereby quashed and set aside. No cost.
CHIEF JUSTICE Certificate :- All corrections made in the judgment have been incorporated in the judgment Nihar