Shri Bimal Nath vs The Sate Of Tripura
2021 Latest Caselaw 363 Tri

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                     HIGH COURT OF TRIPURA
                       _A_G_A_R_T_A_L_A_
                              WP(C) No.835 of 2017
1. Shri Bimal Nath, son of late Binode Debnath;
2. Shri Bikash Nath, son of late Binode Debnath;
3. Shri Birendra Nath, son of late Binode Debnath;
4. Shri Ajit Nath, son of late Binode Debnath;
5. Smti. Sabita Nath, wife of Shri Bijoy Nath.
All residents of Village & P.O Bagbassa, Ward No.3, P.S. & Sub-Division-
Dharmanagar, District- North Tripura.
6. Smt. Manju Nath, wife of Shri Sujit Nath, resident of Sanichhera, (Near
market), P.S- Churaibari, P.O. Sanichhera, Sub-Division- Dharmanagar,
District- North Tripura.
                                                       ......Petitioner(s)
                                  VERSUS
1. The Sate of Tripura, represented by the Secretary, Revenue Department,
Government of Tripura, New Capital Complex, P.O. Kunjaban, P.S. New
Capital Complex, Agartala, District- West Tripura.
2. The District Collector, North Tripura District, P.O & PS & Sub-
Division- Dharmanagar, Pin-799250.
3. The Revenue Inspector, Kadamtala, P.O. & P.S. Kadamtala, Sub-
Division- Dharmanagar, District- North Tripura.
4. Shri Chayan Kanti Nath, son of late Chapal Kanti Nath, resident of
Village & P.O Bagbassa, Ward No.3, P.S. & Sub-Division- Dharmanagar,
District- North Tripura.
                                                  ......Respondent(s)

For Petitioner(s)        :   Mr. S. Lodh, Advocate.
For Respondent(s)         :       Mr. D. Sharma, Addl. G.A.,
                                  Mr. D. Sarkar, Advocate.
Date of Judgment          :       18th March, 2021.
& Order
Whether fit for reporting :        NO.




      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
                      JUDGMENT & ORDER (ORAL)

Petitioner has challenged an order dated 07.06.2017 passed by

the Collector, North Tripura, Dharmanagar which arose in following

factual background.

[2] Predecessors-in-title of the petitioner were allotted land

admeasuring 1.12 acres of land of Mouja-Bagbasa, Tehsil-Sanichhera

Revenue Circle-Dharmanagar in the year 1976. According to the petitioner,

sometime in January, 2012 the respondent No.4 tried to encroach upon 0.30

acres out of the said land. The petitioner thereupon filed Civil Suit No. T.S.

05 of 2012 on or around 08.01.2012. Pending such suit the petitioner had

claimed interim injunction against dispossession.

[3] On 27.02.2012 the respondent No.4 herein filed an application

under Section 95 of the Tripura Land Revenue and Land Reforms Act,

1960 (TLR & LR Act, 1960 for short) and requested for correction of the

record of rights in Khatian No.284 concerning his Plot No.630 by

incorporating land admeasuring 0.30 acres as part of his land. In this

application he had contended that his grandfather under a registered sale

deed dated 20.02.1951 had purchased the entire land from the erstwhile

owner for a sale consideration of Rs.2,000/-. Thereafter, 0.30 acres out of

his land forming northern side was declared as khas land, however,

continuously and presently also the petitioner and his family members were

in possession of the entire plot including the said land admeasuring 0.30

acres. They are owners and in actual possession of the land.

[4] The petitioner was served with a notice of the said proceedings

instituted by the respondent No.4. The petitioner applied for adjournments

on the ground that his civil suit was pending and pending such suit revenue

authority should not proceed further. After granting few adjournments, the

Collector rejected further prayer for adjournment and proceeded to decide

the application of the respondent No.4 by an order dated 07.06.2017. Prior

to issuance of notice to the petitioner, the Collector had called for report of

the field survey officer which was submitted on 06.07.2012. As per this

report, the disputed land of 0.30 acres was surrounded by road on northern

side on south and west side. It was adjoining to the land of the respondent

No.4 and his family and the eastern side it touched remaining portion of

0.82 acres of land allotted to the petitioner by the Government. This report

also suggested that on the disputed land the respondent No.4 was in

possession and the land occupied contained some bamboo bushes, one agar

plant and one chymal tree. The possession of the respondent No.4 was

shown to be more than 50 years old.

[5] The Collector heavily relied on this report in his order dated

07.06.2017. He first noted that several adjournments were granted to the

petitioner. On the basis of the report, he came to the conclusion that the

petitioner was in possession only of 0.80 acres of land out of originally

allotted 1.12 acres to him. The remaining area of 0.30 acres was in

possession of respondent No.4. He, therefore, provided as under :

"Now being satisfied that the allotttee (in this case O.P) is not in possession over 0.30 acres of land and since the conditions for allotment under clause 4 and clause 9(a) has been violated. It is hereby ordered that a land area not exceeding 0.30 acres of land in plot no.630/p which was allotted to the O.P is hereby cancelled. The land area measuring 0.30 acres in hal plot no.630/p will be restored as khas land and the applicant will apply afresh for allotment as per provision of Land Allotment of Land Rules 1980."

[6] This order the petitioner has challenged. Mr. S. Lodh, learned

counsel for the petitioner submitted that the application of the respondent

No.4 was only for making correction in the record of rights. The Collector

could not have cancelled the allotment made in favour of the petitioner. No

opportunity of hearing was granted to the petitioner before allotment was

cancelled. In any case, the Collector should have waited for disposal of the

civil suit. Pending civil proceedings the revenue authority could not have

proceeded to decide the application of the respondent No.4. He relied on

certain decisions.

[7] On the other hand, Mr. D. Sarkar, learned counsel for the

respondent No.4 opposed the petition contending that against the order

passed by the Collector statutory remedy before the Secretary Revenue is

available. The petitioner is not availed of this remedy. Even otherwise

issues are of disputed questions which High Court would not decide in a

writ petition. Mr. D. Sharma, learned Additional Government Advocate

also opposed the petition.

[8] Before proceeding to decide the correctness of the order

passed by the Collector, it may be recorded that the civil suit filed by the

petitioner was ultimately decided against him. The suit has been dismissed.

There is no further progress against the judgment of the trial Court. It may

also be noted that against the order passed by the trial Court refusing to

grant interim injunction pending the suit, the petitioner had first filed

appeal from order before the District Court and thereafter a revision

petition before this Court which was dismissed on 09.01.2014.

[9] Despite these reversals before the civil court, I do not think

that the order passed by the Collector can be sustained in law. Whatever the

nature of allotment to the petitioner and whatever the dispute about a part

of the land purchased by the respondent No.4 forming part of khas land

which in turn was allotted to the petitioner, the question is could such

allotment have been cancelled in the manner it was done. The reason why I

must answer the question in the negative is that the Collector did not follow

proper procedure before cancelling the allotment in favour of the petitioner.

[10] To elaborate this point, one may recall, the respondent No.4

had filed an application for correction of a Khatian which would entail

merely correcting a revenue entry. He did contend that the allotment of

0.30 acres of land in favour of the predecessors-in-title of the petitioner

should be cancelled, however, his ground was very different from one on

which the Collector eventually cancelled the grant. According to

respondent No.4 who was the applicant before the Collector, 0.30 acres of

his land got wrongly declared as a khas land and therefore formed part of

the allotment order. The Collector did not carry out any inquiry with

respect to this aspect of the matter. It is not the finding of the Collector that

the disputed land was the one actually purchased by respondent No.4. It is

not his finding that the said land was wrongly treated as a khas land. His

finding however is based on the field survey report suggesting that the

respondent No.4 was in possession of the land and there were a few straight

trees standing on such land. He thereupon invoked Clauses 4 and 9(a) of

Tripura Land Revenue and Land Reforms (Allotment of Land) Rules,

1980. Rule 4 empowers the Collector to cancel land if within stipulated

time land allotted for the purpose of agricultural is not used for such

purpose. Rule 9(a) would empower the Collector to cancel the allotment if

the land is allotted for any other purpose and not utilized for such purpose

within two years. The Collector without putting the petitioner to notice on

his inability to utilize the allotted land for agricultural proceeded to cancel

the allotment which was in breach of principles of natural justice. That

being the position, the availability of alternative remedy would not

persuade me to relegate the petitioner to such alternative remedy. However,

I cannot accept the contention of the counsel for the petitioner that since at

the relevant time civil suit was pending the Collector was powerless to

proceed to the application of the respondent No.4. The application of the

respondent No.4 was for the purpose of declaration that land purchased by

his predecessor was wrongly declared as a khas land, and therefore

wrongly allotted to the predecessors-in-title of the petitioner and to correct

the revenue entries after cancellation of allotment to the extent of such

land. This had nothing to do with the petitioner's suit for protecting his

possession which in any case initially at the interim stage and eventually

while the suit was disposed of, he failed in doing.

[11] In the result, impugned order dated 07.06.2017 passed by the

Collector, North Tripura is set aside. The proceedings arising out of the

application of the respondent No.4 dated 27.02.2012 is revived and placed

back to the Collector for passing fresh order in accordance with law. If the

Collector is of the prima facie opinion that for any of the breach of

conditions of the allotment the allotment is liable to be cancelled, it would

also be open for him to institute suo motu proceedings for such purpose.

[12] Petition is disposed of accordingly. Pending application(s), if

any, also stands disposed of.

(AKIL KURESHI), CJ

Dipesh