Tripura High Court
Unknown vs ) Tripura Forest Development & ... on 20 February, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.47 OF 2010
1) Shri Rabindra Kr. Tripura
son of Lt. Patrai Tripura
2) Smti. Taranpati Tripura
wife of Rabindra Kr. Tripura
3) Shri Kiran Tripura
son of Rabindra Kr. Tripura
4) Shri Kitab Tripura
son of Kamal Kanti Tripura
5) Shri Surajit Tripura
son of Jnyanendra Tripura
6) Shri Satyajit Tripura
son of Jnyanendra Tripura
7) Shri Aswhini Kr. Tripura
son of Madhrai Tripura
8) Shri Tarani Tripura
son of Rashik Chandra Tripura
9) Smti. Jayanti Tripura
wife of Parbo Kr. Tripura
10) Smti. Suchitra Tripura
wife of Hari Kr. Tripura
11) Smti Niralaxmi Tripura
wife of Sandhyapada Tripura
- all are resident of Village-Chatakchari
P.S. Sabroom, District- South Tripura.
12. Shri Manash Tripura
son of Daya Kr. Tripura,
WP(C) NO.47 OF 10 Page 1 of 31
resident of Village- Lodhoya
P.S. Sabroom
District-South Tripura.
13. Shri Priyabrato Chakma
son of Surabandho Chakma
14. Smti Bhabani Chakma
wife of Tamal Chakma
-both are residents of Village-Amtali
P.S. Sabroom- District-South Tripura.
............... Petitioners
- Vs -
1) Tripura Forest Development & Plantation Corp. Ltd.
Kunjaban, Agartala, West Tripura,
represented by its Managing Director
2) The Managing Director,
Tripura Forest Development & Plantation Corp. Ltd.
Kunjaban, Agartala, West Tripura
3) The Divisional Manager,
Tripura Forest Development & Plantation Corp. Ltd.
Sabroom, South Tripura
4) The State of Tripura,
represented by
The Secretary
Forest Department
Government of Tripura
Agartala, West Tripura
5) The District Magistrate & Collector
South Tripura, Udaipur
6) The Sub-Divisional Magistrate
Sabroom, South Tripura
.......... Respondents.
WP(C) NO.47 OF 10 Page 2 of 31
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the Petitioners : Mr. D.K. Biswas, Advocate.
For the respondents : Mr. S. Chakraborty, Addl. G.A.,
Mr. Nepal Majumder, Advocate.
Date of hearing : 08/06/2017
Date of delivery of Judgment : 20/02/2018
and order
Whether fit for reporting : YES.
.
.Judgment and Order This writ petition has been filed by the petitioners in order to raise their grievance against the action of the respondent namely Tripura Forest Development & Plantation Corp. Ltd.(TFDPC, in short) by refusing to distribute the rubber plantation raised on their lands and distributing those plantations to other beneficiaries of the locality on depriving them.
2) On 16.12.2009, a notice was served on the Managing Director, TFDPC and the Division Manager, TFDPC asking them not to distribute the rubber plantation raised on their land to other beneficiaries of the locality.
In response to the said notice, the respondents No. 2 & 3 by their reply dated 21.12.2009 denied the claim of the petitioners. The writ petition was initially dismissed by the judgment dated 20.09.2013. The petitioners herein filed an intra-court appeal being W.A. 52 of 2013 against the said judgment dated 20.09.2013. The petitioners filed a special application in the said intra-court WP(C) NO.47 OF 10 Page 3 of 31 appeal being C.M. Appl. No.103 of 2013 by placing a series of documents, marked as documents No. 1 to 13. In the wake of submission of those documents, the Division Bench of this Court by their order dated 07.07.2014 had remitted the matter back for re- consideration and to take cognizance of the fresh document filed by the petitioners.
3) In the said order dated 07.07.2014, it has been observed inter alia:
"the appellants are either the original allottees or transferees from original allottees of the forest land which was allotted to in favour of certain tribal persons in the year 1970s. Some of the appellants claim to have original letters of allotment in their favour and some of the appellants claim to have become owners through sale deeds executed in their favour by the original allottees"
4) It has also been observed that in the year 1998, the Forest Department handed over an area of 13.51 acres of reserved forest (R.F.) land to the Tripura Forest Development & Plantation Corporation limited (TFDPC) for developing rubber plantation. During that process, not only the forest land but also the private land of the petitioners were taken in possession by the TFDPC. The petitioners have claimed that when they raised objections, they were assured that after plantation is raised and the rubber plantation is ready to benefit, the same would be given to the petitioners. Relying on the said assurance, they did not resort to further action in good faith. But when the rubber plantations are developed, the respondents, instead of handing the same over to the petitioners, came up with proposal to handover the plantation to WP(C) NO.47 OF 10 Page 4 of 31 some other tribals who had no right or interest on the land which the petitioners claim to be theirs.
5) The writ petition was rejected by the learned Single Judge for the reasons that the writ petitioners could not place on record any documents to show that they are original allottees or transferees of the original allotted land. After filing of the writ appeal, as stated earlier, the writ petitioners have filed a special petition to place on record those documents.
6) By the order dated 07.07.2014 it has also been observed by Division Bench of this Court that:-
"Without going into the correctness of the allegations now made in the supplementary affidavit or in the counter affidavit, we are clearly of the view that it would not be appropriate for us to set aside the judgment of the learned Single Judge on merits without giving the learned Single Judge a chance of perusing the documents on which the appellants are now basing their case, Since these documents have been produced and they prima facie establish that the appellants have some right on the properties we feel that it would be fitness of the things if the learned Single Judge himself reconsiders the entire matter"
No further observations having relevance in the context has been made.
7) The petitioners have no doubt failed to produce any primary record demonstrating the petitioners ownership over the land being the original allottees or subsequently transferees.
8) By filing an additional affidavit on 17.03.2015, the petitioner No-1 namely Rabindra Kumar Tripura has averred that the case of the petitioners is that suddenly the TFDPC had taken over their land, grown the plantation and on resiling from the assurance, WP(C) NO.47 OF 10 Page 5 of 31 they have denied the petitioners to have their land back when the plantation were raised thereon. According to the said additional affidavit it is clear that the TFDPC Ltd. has purportedly carried out the said plantation activities under a mistaken perception, without knowing that the land is actually a forest land and is in possession of the petitioners. In their words, "It is anomalous survey and wrong marking of the land actually transferred to the TFDPC which has resulted in the chaotic situation."
9) The petitioners' contentions can be encapsulated in the following manner:-
(a) 4(four) moujas were named from where the land was transferred. "Ludua" is a mouja in Sabroom and no land from Ludua mouja had been transferred to TFDPC Ltd. by the Government, and as such land from that mouja could not be legally taken over by TFDPC Ltd.
It has been further averred by the petitioners that it is due to the anomalous survey and wrong marking, the land was transferred to the TFDPC Ltd. total land of 17.69 acres of 'Ludua' mouja was purchased by Niralaxmi, as evident from her documents and that had been wrongly taken over by the TFDPC Ltd.
(b) Now the documents at Annexure-A and the documents 1 to 9 (pages 8 to 62) of the C.M. Appl. 103 of 2013 would clearly show that the petitioners are all bonafide owners of their respective lands. The documents clearly show that the land is located in Chatakchari Mouja. The Petitioners are either original allottees or purchasers from allottees. Allotments were made in 1970s. Whereas the transfers were made in 1990s. All these lands of Chatakchari mouja appertain to the Plot No.143, as may be evident from the Khatian No.168 of Chatakchari Mouja in the name of the Forest Deptt. This WP(C) NO.47 OF 10 Page 6 of 31 Khatian is of 1966 recording 209.72 acres of land in the plot No.143. As evident from the documents the land originally was 209.72 acres. The Forest Department had transferred a tract of land to the TFDPC Ltd. measuring 151.24 acres and the residual land covered by the allotments made in 70s. Out of 209.72 acres, the allotments were made for 58.00 acres and the residual land being 151.24 acres which had been transferred to the TFDPC Ltd. According to the petitioners, there is no anomaly in the transfer, but in demarcating the land by survey, the said 151.24 acres from the plot No. 143 has been shown wrongly with the allotted land. The total allotted land to the petitioners may come to only 23 acres out of 58 acres. Further, due to wrong demarcation of the land transferred to the TFDPC Ltd., the petitioners 'jote' land as earlier allotted had been taken over and the SDM wrongly had subsequently cancelled the mutation, those land the appellants had lawfully enjoyed for long.
10) The respondents by filing the reply has categorically stated that the petitioners have relied on the records of rights (ROR) opened in the name of the individual writ petitioners. If the records of rights (Annexure-1 series, to the writ petition) is examined meticulously it would clearly transpire that the possession of the land lies with the Forest Department. It has been further contended by the respondents in their reply that the TFDPC had alone raised the rubber plantation. The petitioners do not have rights against the plantation or the land over which the said plantation has been raised by the TFDPC Ltd.
In para-2 of the reply the respondents have categorically stated as under:
"The facts are that the lands appertaining to (i) Mouja- North Hichacherra, Khatian No.2/A of Plot WP(C) NO.47 OF 10 Page 7 of 31 No.1575 (P), Hal Plot No.3677 (P) classified as tilla measuring 30.68 acres; (ii) Mouja - Chatakchari of Khatian No.3/2, Plot No.145 now Plot No.600, classified as tilla, measuring 151.24 acres; (iii) Mouja- Kathalchari, Khatian No.2/1, Khatian No.557(P0 now Plot No.1410(P), classified as tilla measuring 355.96 acres; and (iv) Mouja- South Bijoypur, Khatian No.2/1, Dag No.8 now Dag No.44, classified as tilla, measuring 359.88 acres and Khatian No.2/1, Dag No.10(P) now Dag No.182, classified as tilla, measuring 453.60 acres. Total 1351.26 acres were transferred from the Forest Department to the respondent No.1 in acknowledgement whereof the Divisional Forest Officer, Southern Division, Bagafa and the Divisional Manager, South Forest Corporation Division-I, Santirbazar/Division-II, Manu Bazar recorded their handing over and taking over of forest land for the purpose of raising of rubber plantation for resettlement of tribal jumiya by TFDPC Ltd., the respondents no.1 herein. The said handing over and taking over of the possession took place on 18.06.1998. Pursuant to the approval of the Principal Chief Conservator of Forests, Tripura, Agartala vide his No.F.6-92/Land/For-89/11, 446-48 dated 16.05.1998."
11) According to the respondents, for resettlement of the tribal Jumiyas (shifting cultivators) the said land was segmented out and handed over to the TFDPC for raising rubber plantation. In sequel the land was handed over to the TFDPC Ltd. When the plantation was somewhat mature a slew of applications were received by the respondents raising claims over the said land as the allotees. But on the aspects of the oral assurance in respect of handing over of the land to the individual jotedars, the said claim has been categorically denied by the respondents. They have also stated that the petitioners have themselves admitted the right, title and interest of the respondent No.1 over the rubber plantation and cannot therefore urge the reliefs as made in the writ petition. The respondents have further averred that the claim of being allottee-possessor over the land is totally WP(C) NO.47 OF 10 Page 8 of 31 absurd in as much as the land stands still in the record of rights under the possession of the Forest Department.
According to the respondents, this claim is 'mischievous' and as such is bereft of any substance. After the C.M. Application No. 103 of 2013 in W.A No.52 of 2013 was entertained by the Division Bench of this Court, the respondents scrutinized all the documents (1 to 13) in the name of Taranpati Tripura, Kiran Tripura, Kitab Tripura, Surajit Tripura, Satyajit Tripura, Aswhini Kr. Tripura, Tarani Tripura, Jayanti Tripura, Suchitra Tripura, Niralaximi Tripura, Manash Tripura, Priyabrato Chakma and Bhanbani Chakma. The respondents have filed one additional counter affidavit on 30.05.2017. In the said counter affidavit, the respondents have submitted that for settlement of the jumiyas, the said tract of land was handed over to the TFDPC and no land exceeding the land of the Forest Department was transferred to them. On the said land, the TFDPC Ltd has raised the rubber plantation. When the rubber trees were in the stage of lactation, the petitioners issued notice to the respondent No.1 for distribution of the plantation according to their land. The respondents have categorically stated that the land in question as mentioned in the writ petition belongs to the forest department being recorded in Khatain No.168, Dag No.145, classified as tilla measuring 209.73 acres protected/reserved forest of Mouja- Chatakchari. The said khatian was finally published on 26.06.1967.
12) The respondents have categorically stated in para-11 of the reply that a tract of land measuring 151.24 acre of WP(C) NO.47 OF 10 Page 9 of 31 protected forest (P.F.) under Chatakchari Mouja comprised in C.S. Plot No.145(P) (Old) corresponding to Hal Plot No.600 (Hal), classified as tilla in Khatian No.3/2 was handed over to the TFDPC Ltd. by the Forest Department as per approval of the P.C.C.F., Tripura. For the purpose of handing over the possession, due process was followed. With the said land and other land pertaining to North Hichachara, Kathalchari, and South Bijoypur Moujas totally measuring 1351.26 acres was handed over to the respondent No.1 for the said purpose. Thus, it is abundantly clear from the records of right that the said land belongs to the Forest Department from anterior to 1968.
13) The respondents have retiarated that the forest department has the ownership and title over that land and the TFDPC Ltd was permitted to possess the said land for purpose of raising the plantation since 1988.
14) In paras 19 to 29, the respondents have laid their response in respect of those documents filed in writ appellate proceeding by the writ petitioners. Since 26.06.1967 the said land was declared as the protected forest and hence the land, attracted by their documents No.1 to 13 in question, belongs to the Forest Department (vide old khatian No.168 and new Khatain No.3/2, sabek plot No.145, corresponding to the hal plot No.600) The respondents have stated that the documents No.1 to 13 had been created without following the proper procedure of law. Even the original plot No.600 as stated earlier, belonged to the Forest Department since 1967. Any part thereof, cannot be transfered , allotted or given right to use. It is apparently clear these WP(C) NO.47 OF 10 Page 10 of 31 documents were procured by tweaking the records of right. That apart, the documents No.1 was executed in favour of the wife of the petitioner No.1, Rabindra Kumar Tripura. In para 23 & 24 the respondents have stated as under:
"23. That, the alleged Documents No-13 of the C.M Application was executed on 14-05-2008, Deed No-1- 250 by one Sri Rabindra Kumar Tripura is Writ petitioner No-1, shown to be the Attorney of Indra Kumar Chakma in favour of one Bhabani Chakma. Said writ petitioner no-1 obtained attorneyship on 05-05-2008 and sold out the land on 14.05.2008 i.e. only after 8 days. But how the right of Indra Kumar Chakma accrued was not produced. Aforesaid deed mentioned by the petitioner appellant No-14 along with the petitioner appellant No-1 are vague documents. The petitioner appellant No-1 managed to show the power of Attorney and obtained only few days back obtaining Attorney.
Those documents are not valid inthe eye of law. The petitioner appellant No-14 did not mentioned the source of title of his vendee, Indra Kumar Chakma.
24. That, the alleged Documents No-3 managed to execute in the name of minor namely Kitab Tripura S/O Sri Kamal Kanti Tripua only on 03-06-2006 and the mutation was allowed on 21-07-2006 by Sri K.K. Chakma, Revenue Inspector. The aforesaid deed and the khatain No.519 have no value in the eye of law and the aforesaid mutation was illegally allowed since the TFDPC Ltd are in possession of those land"
15) The respondents have categorically stated that the document Nos. 1, 2, 3, 4, 5, 8, 9 and 10 were illegally created by the revenue inspector Shri K.K. Chakma as the land in question was under possession of the TFDPC Ltd. Further, the respondents have raised an issue that the disputed documents cannot be pressed in a writ petition as this Court lacks in the required mechanism of finding the truth by inquiry. According to the respondents, the documents No.1 to 13 will go to show that WP(C) NO.47 OF 10 Page 11 of 31 one K.K. Chakma, Inspector of Revenue, Sabroom circle, South Tripura allowed the mutation illegally as at the relevant time the land was/is under possession of the TFDPC Ltd. Shri K.K. Chakma is himself an interested person in this land.
According to respondents-
"the entire mutation was allowed illegally and created revenue records in connivance with revenue section of the Sub Divisional Magistrate, Office Sabroom."
16) As consequence of such grievance, for dereliction of duty, a departmental proceeding has been drawn up against Sri Chakma vide Disciplinary Proceeding No.248/INQ/DM(G) 2012 for the said illegal act. The respondents have reiterated that the protected forest land cannot be transferred even by the Collector as there is a legal restriction over transfer of those parcels of the land.
17) According to the respondents, these documents were created illegally with connivance with the said revenue inspector and as such the writ petition be shot down without any further consideration.
The respondents have further submitted that in para 49 of their additional counter affidavit, they have made a specific statement repeating that 151.24 acres of protected forest (P.F) under the Chatakchari Mouja comprised in C.S. plot No. 600(Hal) and 145(P), (OLD) in khatian No.3/2 was handed over to the TFDPC Ltd. Those respondents have also produced the khatian being 168 of mouja Chatakbari and other official WP(C) NO.47 OF 10 Page 12 of 31 records over the said land, they have raised the plantation for giving settlement to the tribal jumiyas.
18) It may not be out of place to mention that a representation was submitted on 29.08.2009 to the Sub- Divisional Managar TFDPC Sabroom stating that TFDPC raised rubber plantation over the 'jote' land of the petitioners. On the basis of verbal assurance that the TFDPC Ltd. would distribute the rubber plantation among them at the yielding stage. The said representation was followed by a notice dated 16.12.2009.
The respondents have further stated as under:
" It is strange to not that the Tehsildar of Chatakchari Mouja under Sabroom Tehsil and the same Tehsildar of Baishnabpur has not been mentioned the presence of the rubber plantation in that area in their inquiry report about so many plots. After seeing the purported field enquiry report, mutation was allowed by the Mutation Officer in most high handed manner, illegally and in contravention or in violation of the procedure which is required to be reviewed after making necessary correction in the record of rights of the petitioners as per procedure with regard to the physical possession of the land by the T.F.D.P.C. Ltd. The petitioners in whose names the lands have illegally been mutated have no possession till the filing of the writ petition.
19) For purpose of reference, the area of land and the details of the khatians and plots are shown in the table below, under the different Moujas.
Mouja: Chatakchari
SL. Mutation case Mutation done Khatian No. RS Plot No Area in
no. in favour of acres
1. MR.06/06 Petitioner 519 600/2221 4.00
WP(C) NO.47 OF 10 Page 13 of 31
dt.05.10.07 No.1
2. MR.07/08 Petitioner 249 600/2064 2.20
No.2
3. MR 07/06 Petitioner 520 600/2220 3.20
dt.5.10.07 No.3
4. MR 05/06 Petitioner 517 319/2407, 1.88
dt.5.10.07 No.4 319/223 3.80
324 0.18
325 0.14
5. MR. 03/06 Petitioner 521 600/2222 2.00
No.5
6. MR 332 Petitioner 332 600/2063 3.00
dt.520.07 No.6
7. MR Petitioner 221 600/2068 4.88
No.7
8. MR 19/08 Petitioner 330 600/2066 5.70
dt.9.1.09 No.8 565,566
9. MR/07 Petitioner 527 600/2228 4.00
No.9
10. MR 19/07 Petitioner 536 319/2048, 6.00
dt.6.10.08 No.10 321,322,
323
Mouja: Paschim Lodhua
11. MR 14/07 Petitioner 288 4.82
dt. No.12
12. MR 22/07 Petitioner 201 15,39 4.50
dt No.13
13. MR 21/07 Petitioner 259 38 5.84
No.13
14. MR 8/04 Petitioner 330 600/2066 5.70
dt.17.12.08 No.14 565,566
15. MR 16/07 Petitioner 173 5,34,29 5.29
dt.12.10.07 No.11
WP(C) NO.47 OF 10 Page 14 of 31
16. MR 15/07 Petitioner 168 9,30,21 6.20
No.11
17. MR 17/07 Petitioner 173 5,34,29 5.29
dt.12.10.07 No.17
20) According to the respondents, against the purported
mutation orders passed in 3 mutations cases being mutation cases No. 15/07, 16/07 and 17/07 in respect of the petitioner No.11, the petitions under section 96 of the TLR & LR Act 1960 were filed being Review Cases No. 01/11, 02/11 & 03/11 in the Revenue Court of the Deputy Collector & Magistrate, Silachari Revenue Circle, Sabroom South Tripura and whereupon the Revenue Court have cancelled those Mutation orders holding inter alia as under:
"i) Under the said MR.No.15 for an area measuring 6.20 acres of land of plot Nos. 6, 30 & 21 of Khatain No.168 of the Mouja- West Ludhua under the Baishanabpur Tehasil Kachari is under the possession of T.F.D.P.C. Ltd. before the date of allowing mutation order dated 12.10.2007. The Petitioner No.11 had never possessed the land. The rubber plantation on the land measuring 6.20 acres of plot Being 9, 10, 30 & 21 of khatian No.168 of Mouja-West Ludhua has been raised by the T.F.D.P.C.
ii) The mutation order as passed vide Mutation Case NO.
15/2007 on 12/10/2007 was reviewed under Section 96 of the TLR & LR Act, 1960 and canceled. Other review petitions being 02/11 and 03/11 as issued by the mutation inspector were also cancelled by order dated 24.03.2011."
21) The petitioners No. 13, 14, 12, 4 & 11 had earlier filed a writ petition being WP(C) No.481 of 2011 ( Annexere-10, to the writ petition) against the order dated dated 24.01.2011. The said writ petition was dismissed by the order dated WP(C) NO.47 OF 10 Page 15 of 31 29.11.2011. The writ petitioner No.12 namely Manash Tripura also similarly filed a writ petition being WP(C) No.308 of 2012 which was also disposed of by the judgment and order dated 30.06.2012 by directing the District Collector, South Tripura, Belonia to dispose the petition filed by the petitioner on 09.02.2012 under Section 95 of the TLR & LR Act within 90 days from the date of passing of that judgment and order. In terms of the said order dated 30.06.2012 delivered in WP(C) No.308 of 2012 a proceeding was drawn up under Section 95 of the TLR & LR Act 1960 for ascertaining certain facts. Sub Divisional Magistrate, Sabroom, South Tripura was requested to cause enquiry. Thus, an enquiry was conducted by the said Deputy Collector and Magistrate , Sabroom, South Tripura and the report was submitted on 24.03.2011. In the report, it had been categorically stated that the writ petitioners had never possessed the said land. The rubber plantation was raised and grown by the TFDPC Ltd. Consequently, the mutation orders in favour of the petitioners had been cancelled. The respondent- Corporation on taking aid and advice of the Gram Panchayats and the Village Committees or the concerned Block Advisory Committees has prepared the list of beneficiaries. The petitioners were not included in the said list.
22) This Court passed the judgment on 20.09.2013. As stated earlier, being aggrieved by that order the present petitioners had carried out an intra-court appeal. In that appeal, they filed so many documents. This Court accepted those documents for scrutiny, but the respondents had strongly WP(C) NO.47 OF 10 Page 16 of 31 denied the claim of the writ petitioners based on those documents and according to them the documents were all tweaked and out come of conclusiveness.
23) On 24.03.2017, this Court passed the following order after hearing the parties:
" In the midst of the submission as advanced by Mr. Majumder, learned counsel appearing for the respondents No. 1 -3, some salient features of this controversy have surfaced involving the following questions:
(i) Whether the land in question in this writ petition on which TFDPC Ltd has raised the rubber plantation belongs to the writ petitioners or some other persons?
(ii) Whether there was an assurance from the TFDPC Ltd. that since the plantation was being raised on the private land of the petitioners and some other persons, the petitioners and those persons will be given right to derive the benefits of the rubber plantation within their jote land?
(iii) Whether the allotment orders passed in favour of the petitioners or their predecessors were canceled by the competent authority?
For resolution of the controvery, this Court is of the view that the respondent No.1 shall file an additional affidavit primarily providing the following fact/information:
(i) The status of the land relevant for the writ petition whether those are still in the limited ownership of the petitioners, in view of the allotment or whether any of the allotment orders has been canceled or substituted by any other order.
(ii) The map of the land relevant in the writ petition, be made available with the additional affidavit.
The respondents, however , shall not make the affidavit elaborate one. It shall be to the point." WP(C) NO.47 OF 10 Page 17 of 31
24) The respondents to give their response has also filed the said additional counter affidavit.
In para 86, 87, 88, 89, 90 & 91 they have asserted as follows:
" 86. That, on 24-03-2017 the Hon'ble High Court during hearing sought out the following questions involving the salient feature of controversy and directed to submitted the additional Counter Affidavit.
i) Whether the land in question in this writ petition on which TFDPC Ltd has raised the rubber plantation belongs to the writ petitioners or some other person?
ii) Whether there was an assurance from the TFDPC Ltd that since the plantation was being raised on the private land of the petitioners and some other persons the petitioners and those persons will be given right to derive the benefits of the rubber plantations within their jote land?
Iii) Whether the allotment orders passed in favour of the petitioners or their predecessors were cancelled by the competent authority?
For resolution of controversy, further
directed to file an additional affidavit ont he
following facts/information.
i) The status of land relevant for the writ petition whether those are still in the limited ownership of the petitioner's, in view of the allotment or whether any of the allotment order has been cancelled or substituted by any other order.
ii) The map of the land relevant in the writ petition.
87) That, the answering respondents submits as follows on the point No. i) whether the land in question in this writ petition on which TFDPC Ltd has raised the rubber plantation belongs to the writ petitioners or some other persons?
The land is question in this writ petition on which TFDPC Ltd has raised the rubber plantation do not belongs to the writ petitioners or some other persons.
WP(C) NO.47 OF 10 Page 18 of 31 That, the land in question belongs to the Forest Department, prior to 1966, and from the first settlement i.e. 1967 ( finally published Khatian on 26-06-1967) and the forest Department is holding the ownership and title of the those documents No- 1 to 13, and the land in question related with the Sabek Khatian No.168 and Hal Khatain No-3/2 Sabek Plot No.145 corresponding hal plot No-600, belongs to the Forest Department. The Forest Department is holding the ownership and title of the those land and the Tripura Forest Development & plantation Corporation limited was in existence and raised and possessed by TFDPC Ltd by raising rubber plantation since 1988 over the aforesaid land. That, the land in question where the TFDPC Ltd raised the rubber plantation in 2001,2002 and in the year 2004 A.D. over 56 hac ( approx 138.40 acres) was erstwhile Protected Forest (P.F.) land of Forest Department, Government of Tripura in OLD C.S. Plot No.145, Khatian No-168, Mouja Chatakchhari (Hal Khatian No-3/2 C.S. Plot No-600) as handed over by the Forest Department through the Surveyours of Working Plan Division on 18.06.1998 based on old records and maps as available with Forest Department (working Plan Division). At that time neither the petitioners nor any other persons were in the picture. Nobody raised any objection while demarcating the land by the Forest Department Surveyours in 1998 and no objection received while raising rubber plantation by the TFDPC Ltd. Field official (Corporation ranger, now retired).So the land in question in the writ petitioner presumed belong to the Forest Department Protected Forest (P.F.) land as per provision of Indian Forest Act, 1927 from 18.06.1998 to 10.10.2013 F.N the land in question was under continuous possession of TFDPC Ltd and thereafter from 10.10.2013 and the land in question had gone under the possession of the Tribal Jhumias beneficiaries as selected by the local Village Committee (VC) / Block Advisory Committee ( BAC) (PRI Body) on 08-10-2013 for harvesting usufructs for their livelihood. Later on it has been learned that some portion of Forest land protected Forest of adjoining West Ludhua mouja Old Khatian NO-169, old C.S. Plot NO-2 were included int he TFDPC rubber plantation in good faith as such C.S. Plot No. 145 (old) of Chatakchhari mouja and C.S. Plot No-2 (old) of West Ludhua mouja are adjacent and having common boundary line.
88) That, the answering respondents submits as follows on the point No-2. Whether there was an assurance from the TFDPC Ltd that since the WP(C) NO.47 OF 10 Page 19 of 31 plantation was being raised on the private land of the petitioners and some other persons the petitioners and those persons will be given right to derive the benefits of the rubber plantations within their jote land?
TFDPC Ltd raised rubber plantation in Forest land as handed over by the Forest Department, Government of Tripura for economic Rehabilitation of Tribal Jhumias as per guidelines of Project Report. But local PRI bodies viz. Village Advisory Committee or the (BAC) is entitled for selection of beneficiaries.
So, neither TFDPC Ltd nor the Forest Department Government of Tripura has given any assurance to the petitioners for providing right to derive benefits of the the rubber plantations. Moreover the petitioners do not have the prerequisite (e.g. poor Tribal Jhumias off the locality etc. For selection as beneficiary. (The socio economic status of the petitioners already stated in the C.M. Appl. No.298 of 2013 in WP(C) 47 OF 2010 and C.M Appl 103 of 2013 in Writ Appeal No.52 of 2013. Some are rich and land lord, some are high ranking employees of State Government and some are the wives and sons of the them (high Officials of the Government. So a landlord or high ranking State Government employees cannot be considered as Tribal Jhumias beneficiary by the PRI body. It may be mentioned here that there is no jote land having rayoti status within the rubber plantation areas.
89) That, the answering respondnets submits as follows on the point No- iii) Whether the allotment orders passed in favour of the petitioners or their predecessors were cancelled by the competent authority?
Forest land always belongs to Forest Department Govenement of Tripura. So if , there is nay wrongful allotment made violating the provision of Indian Forest Act, 1927 or Forest Conservation Act, 1980, Forest working Plan Division used to take up the matter for cancellation off those allotment at appropriate levvel and under process.
TFDPC Ltd does not have any information regarding cancellation of allotment Orders. However 6(six) fake mutations case ( M.R No16/2007; M.R. No 15/2007, M.R. No.17/ 2007, M.R. No.21/2007, M.R. No.14/2007 and M.R. No. 17/12/08 ( Review case No. 04/2011) relating to West Ludhua Mouja have been cancelled by the D.M. & Collector, South Tripura on 28.09.2012 WP(C) NO.47 OF 10 Page 20 of 31 relating to Old C.s Plot No-2 Old Khatian No-169 of west Ludhua Mouja and the fake mutations relating to Chatalchhari Mouja ( M.R. No-06/2006, M.R. No- 05/2006, M.R. No-07/2007, M.R. No.08/2007, M.R. No. 07/2006, 05/2006, 03/2006, 07/2006,01/2006, 19/2007 etc are laso liable to be cancelled in due course; TFDPC Ltd raised rubber plantation in 2001, 2002 and 2004 whereas mutations made in 2006 to 2008 A.D. illegally.
The Khatian No-519 in reference of MR 06/2006, Khatian No-520 in reference of MR 07/2006, Khatian No-249 in reference of MR 20070007, MR 20070008, is illegally created the mutation without any basis and without any notice to the Forest Department. The said illegal mutation is/are under process of cancellation. The land of those Khatians along with other lands belongs/are the land of the Forest Department under the Old plot 145 and hal plot No-
600. The Protected Forest cannot be made allotted/allotment or transferred illegally to any other person. Neither allotee nor the present petitioner are in possession of the land where the TFDPC Ltd raised rubber plantation.
90. That, the Writ petitioner No-01 to 10 in WP(C) 47 OF 2010 are claiming the land in question by virtue of some fake mutations without delivery of possession, i.e ownership of fake papers only. But the rest petitioner No.11 to 14 does not have any ownership or right over the land in question as such all mutations relating to the petitioner No11 to 14 have been canceled by the competent authority on 28.09.2012. At present the entire land where rubber plantation riased by TFDPC Ltd over 56 hac are in the possession of the Tribal Jhumia beneficiaries total 82+8=90 numbers of Families) for deriving usufrut for their lively hood.
91. That, for resolution of controversy, the respondent No-1 directed to file the Additional Counter Affidavit providng the following fact/information.
i) The status of land relevant for the writ petition whether those are still in the limited ownership of the petitioner's in view of the allotment or whether any of the allotment order has been canceled or substituted by any other order.
ii) The may of the land relevant in the writ petition. That, the land in question belongs to the Forest Department, Government of Tripura are the protected Forest Land Since 1967 i.e. from the inception of the first settlement of the State of WP(C) NO.47 OF 10 Page 21 of 31 Tripura and finally published on 26.06.1967 being Khatian No.168 and the status of land belongs to the Forest Department illegal allotment and the mutations are liable to be canceled.
In the Revenue proceeding the Deputy Collector & Magistrate by order dated 24-03-2011 canceled the some of the mutations. The District Collector, South Tripura passed order on 28.09.2012 and upheld the order of D.C. & M Subroom to the effect of cancellation of the Mutation of the respective Khatians.
As per direction of the Hon'ble High Court the matter was referred to Sub-Divionsal Magistrate, Sabroom, South Tripura for a detail enquiry on the status of possession of land by the petitioner- respondents. Accordingly the Sub-Divisional Magistrate, Sabroom submitted a report on the basis of enquiry made by the Deputy Collector, posted in the Office of S.D.M, Sabroom. The Collector, South Tripura; Belonia passed Order on 28.09.2012 to the effect that, for cancellation of mutation is found justified. The Collector, South Tripura, Belonia by order dated 28.09.2012 the so called fake mutation cancelled on proper enquiry and after providing the opportunity to the respective petitioners in the matter mentioned in the Order. The Collector South Tripura District on the basis of enquiry report and hearing the parties cancelled the mutations on 28.09.2012.
The Collector, Belonia South Tripura District on the basis of enquiry report and hearing of the parties cancelled the mutations on 28.09.2012 over the land measuring 33.89 Acres of Mouja West Ludhua of petitioner NO-11 to 14. The balance area land measuring 33.07 Acres of land of Mouja Chatakchari etc. Is awaited under process of cancellation. In reference to the land of Forest Department the allotment order and the mutations is/are awaited under process of cancellation. In reference to the land of Forest Department under the Forest Act cannot be allotted to any person and allotment made under de-horse of Rules are liable to be cancelled.
The Divisional Manager, Southern Forest Corporation, Divisiion No-II, Sabroom made communication on 27.08.2013 to the SDM, Sabroom, regarding the present status regarding cancellation of the balance illegal mutation cases. WP(C) NO.47 OF 10 Page 22 of 31 A copy of communcation datd 27.08.2013 & copy of C.S. Map, khatian is annexed as annexure R/23/24 & R/25 respectively"
25) In view of these facts, the respondents have clearly claimed that the petitioners cannot claim any right over the land where the TFDPC i.e. the respondent No.1 has raised their plantation. In support of their said statement, they have also produced the records and this Court has scrutinized those records. The petitioners did not file any formal rejoinder to the Addl. counter affidavit but Mr. D.K Biswas, learned counsel appearing for the petitioners has submitted that the petitioners' grievance is only that the TFDPC has taken over their land, which was not permitted by the communication dated 17.06.1998 and that the wrong land has been taken over. As such, the petitioners have been wronged and they, therefore, demand their lands back.
26) In reply to the questions projected by the order dated 24/03/2017, Mr. Biswas, learned counsel has submitted that by the document dated 17.06.1998, the government handed over a total land of 1351.26 acres from 4 Moujas to the TFDPC Ltd . Thus the TFDPC became the limited owner of the transferred land measuring 1351.26 acres. Four Moujas are: (1) North Hichacherra (2) Chatakchari (3) Kathalchari & (4) South Bijoypur. The land of the petitioners No.11, 12, 13 & 14 do not belong to any of those 4 moujas, yet their lands have been taken over by the TFDPC Ltd. without any authority.
The TFDPC Ltd has thus taken over 17.69 acres of land of the WP(C) NO.47 OF 10 Page 23 of 31 petitioners No.11, 4.82 acres from the petitioner No.12, 10.34 acres from petitioner No.13 and 5.58 acres from the petitioner No.14. Thus a total land of 38.42 acres which appertains to West Ludhua Mouja had never taken over by the TFDPC Illegally. In terms of the transfer document dated 17.06.1998, it is apparent that the TFDPC has wrongly taken over 'jote' land of the petitioners without any authority or by any procedure as established by law.
27) So far the land belonging to Chatakcheri Mouja is concerned, according to Mr. Biswas, learned counsel appearing for the appellant, it is undisputed that the petitioners were allotted Forest land in 1971-74. Those allotments were not cancelled before the lands were transfered to the TFDPC Ltd., cancellation if at all done, has been done only after the writ petition is filed.
Mr. Biswas, learned counsel has attached adequate importance to the fact that from Chatakchari Mouja 151 acres of land has been transferred to the TFDPC Ltd. from Plot No.145 and that plot no.145 is comprised of 209 acres in 1967, out of which the following amount of land was allotted in 1977:
SL. Name Area of land status Date of transfer No. or allotment 1 Rabindra Tripura 15.60 acre Allotee 20.06.2007 2 Taranpati Tripura 6.20 acre purchaser 30-6-2006 3 Kiran Tripura 3.20 acre purchaser 03-06-2006 4 Kitab Tripura 6.00 acre purchaser 03-6-2006 5 Surojit Tripura 2.00 acre purchaser 05-1-2006 6 Satyajit Tripura 3.00 acre purchaser 30-6-2006 WP(C) NO.47 OF 10 Page 24 of 31 7 Aswini K. Tripura 4.88 acre Allotee -------1974* 8 Rasik Ch. Tripura 5.70 acre Allotee 17.7.1975 9 Jayanti Tripura 4.00 acre purchaser 20-06-2007 10 Suchitra Tripura 6.00 acre purchased 10.11.2005 * The date is not cited
28) Thus, it is apparent from the said table that a amount of land measuring 55.98 acres out of 209 acres was allotted to 10 persons from the plot No.145. The residual land measuring 209-56=153 acres has only been only transferred to the TFDP. So, it is apparent that the TFDPC had taken over the wrong land. Whether any assurance was made to the petitioners? In reply to the said query it has been strongly laid that there is no written documents but according to the petitioners that a presumption can be made that the land of the petitioner has been included in the plantation area without any protest from the petitioners, but they actually raised the protest particularly when after raising the plantation, they were not distributed the plantation area in accordance to their 'jote' land. Whether the allotment order are cancelled or not there is no direct reply by the petitioners. But they have asserted that the allotment order which subsisted for more that 20 years were not cancelled prior to the filing of the writ petition. Hence, fresh transfer cannot be made legally and the land attracted by this allotment orders could not/cannot be handed over to the TFDPC.
29) Mr. Biswas, learned counsel appearing for the petitioners has contended in this perspective that if at all the WP(C) NO.47 OF 10 Page 25 of 31 land was already alloted to the petitioners in 1970s, those could not be handed over to the TFDPC without cancelling the allotment following the due process. But that was never done. Mr. Biswas, learned counsel for the petitioners has fairly submitted that the cancellation exercise was taken long after the writ petition was filed.
30) Form the other side Mr. N. Majumder, learned counsel has submitted that from the memorandum under No. F.10(66)/FOR/PLAN dated 13.06.1969 issued by the Chief Secretary, Government of Tripura it would clearly transpire that no forest land could be allotted or otherwise utilized without obtaining proper approval of the Central Government, following the process as indicated in the said memorandum.
Mr. Majumder learned counsel has submitted that since 1969, the land was under possession of the Forest Department and as such unless the exemption is obtained from the Forest Department, no part of the protected forest can be utilized in any other manner nor can be allotted to individuals. From the order dated 16.08.2012 delivered in WP(C) No.398 of 2012, it appears that this Court has given the liberty to the petitioners of that case to approach the appropriate forum in accordance with the law in as much as in that case, the notice for proceeding in respect of cancellation of the allotment order was challenged. It appears that the mutation orders issued in favour of some of the writ petitioners are already cancelled the order dated 28.09.2012. According to Mr. Majumder, learned counsel appearing for the respondents the process of WP(C) NO.47 OF 10 Page 26 of 31 selecting the beneficiary has been completed. More over it is apparent that the petitioners are not in the possession of the land under reference since long and they have admitted that the TFDPC Ltd. have raised the plantation from 1988.
31) Having appreciated the submission and scrutinized the records produced by the petitioners and the respondents, this Court is of the view that the nature of the dispute is as such that it would not fall within the jurisdictional frame to carry out to the required enquiry.
32) Mr. Biswas, learned counsel though has submitted that during pendency of the writ petition, the proceedings for cancellation of the allotment have commenced against the petitioners who acquired the title in the land in question by virtue of allotment or the subsequent transfers. But there is no challenge against the said proceeding for cancelling the allotment orders, even not against the setting aside of the orders of mutation. No reference has been made as such in the averments in the writ petitions. It cannot also be denied that since 1968, enforcement mechanism to protect the reserved forest and the protected forest has visibly made its appearance in the form of Memo No. F.18-4/For-68/957-87 dated 11.07.1968 ( Annexure R/22 of the additional counter affidavit filed by the respondents). In the said memorandum it has been directed that the land belonging to the forest areas including the reserve forest and the protected forest cannot be allotted without prior concurrence of the Forest Department. Annoyance has been expressed in the perspective of the WP(C) NO.47 OF 10 Page 27 of 31 reported violations as it gave rise to various complications. The Government has therefore decided that no allotment shall be made in future without the prior concurrence of the Government in the Revenue and the Forest department. The said memo was issued by the Chief Secretary of the Government of Tripura and it has been stated that it was well circulated for bring the notice of the all concerned.
33) But Mr. Biswas, learned counsel for the petitioners has referred to the documents filed by petitioners in C.M. Application No. 103 of 2013 and this Court comes across the copies of khatians where the petitioners or their predecessors are recorded as the allottee. But strangely enough, those khatians were opened in the year 22.02.2005, 22.07.2007, 19.05.2007, 20.07.2007, 03.01.1995, 30.06.2004, 30.03.1992, 12.09.2007, 12.11.2008, 01.06.2009, 05.05.2009, 13.05.2009, 20.09.2008, 19.07.2007 and 12.09.2013. Whereas the allotment order were made in the early seventies according to the petitioners. In the meanwhile revision of records by way of survey operation has taken place. This leads to an adverse presumption against the petitioners so far their possession over the land is concerned. It has appeared that sale of those land has been transacted. Though no specific reference has been made, but the respondents have categorically stated that some of the mutation orders passed in favour of the petitioners have already been set aside by the competent authority. No where the petitioners have stated that those WP(C) NO.47 OF 10 Page 28 of 31 order are under challenge or they have resorted to any action against those order before the superior forum or authority.
In such circumstances, this Court cannot decide the issue in vacuam as this dispute is comprised of multiple components. But this Court would direct the Secretary to the Government of Tripura, Revenue Department to form a committee of the experienced settlement officers to evaluate the claims and the counter claims and submit a report to him. On such report, the Secretary Revenue shall pass an appropriate order under the direction of this Court in respect of allotment, cancellation thereof and on the allotment to the TFDPC Ltd. It shall be dilated in the order whether the petitioners or their predecessors were given allotment, whether by virtue of the allotment the petitioners or their predecessors had come in the possession over those land or those were left un-utilized causing breach of condition of allotment conditions as per the TLR & LR (Allotment) Rules, 1962 or the relevant rules, whether at the time of demarcating the land for handing over the same to the TFDPC Ltd, there was any physical survey or not and on the basis of the survey, the land was handed over to the TFDPC or not, whether the TFDPC Ltd. has raised the plantation in the land allotted to them or they have raised the plantation over the allotted land of the petitioners or their predecessors.
If it is found that the alloted lands of the petitioners or their predecessor have been included in the plantation without authority, the TFDPC shall vacate the land WP(C) NO.47 OF 10 Page 29 of 31 to the State. In the event, the Secretary Revenue Department shall determine whether the petitioners are still eligible to get the allotment of those land which is admittedly not in their possession, but in possession of TFDPC Ltd. The said order be passed independent of the order cancelling the allotment. If the petitioners are aggrieved by the order of the Secretary, Revenue Department, they would be at liberty to challenge the same afresh.
34) No further relief can be granted in favour of the petitioners as it is admitted that the petitioners are defending the allotment order which they have claimed to have issued in their favour in respect of the land under reference. The statutory remedy is available to the petitioners if any adverse order is/has been passed in the said proceeding for cancellation of allotment. It would be inappropriate to observe more or direct further action in the circumstance as noticed.
May it be reiterated and made clear that if it is found that the petitioners are still eligible to get the allotment, the Secretary to the Government of Tripura, Revenue Department may take necessary action to allot or re-allot or restore the possession of the eligible petitioners for possession of the land including the plantation only. If it is found that the TFDPC has raised the plantation beyond the land they had been permitted to raise such plantation and over the land initially allotted to the petitioners or their predecessor. The Secretary to the Government of Tripura, Revenue Department shall inform the petitioners, Tripura Forest Development & WP(C) NO.47 OF 10 Page 30 of 31 Plantation Corporation Limited (TFDPC) about the enquiry that would be conducted by the said committee so that they may get an opportunity to place their respective claims over the land.
35) In terms of the above, this writ petition stands disposed of. There shall be no order as to costs.
JUDGE suhanjit WP(C) NO.47 OF 10 Page 31 of 31