Kallol Debbarma & 6 Others vs State Of Tripura And 6 Others
2022 Latest Caselaw 350 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                              WP(C)No.259 of 2022

Kallol Debbarma & 6 Others
                                                                    ..........Petitioner(s)
                                       Versus
State of Tripura and 6 Others
                                                                   ..........Respondent(s)

For Petitioner(s)                  : Mr. P. Roy Barman, Sr. Adv.
                                     Mr. S. Bhattacharjee, Adv.
For Respondent(s)                  : Mr. P.K. Dhar, Sr. G.A.
                                     Mr. A. Bhowmik, Adv.
                                     Mr. A. Dey, Adv.


                    HON'BLE MR. JUSTICE S. TALAPATRA

                                       Order

23/03/2022

Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S.

Bhattacharjee, learned counsel appearing for the petitioners as well as Mr. P.K.

Dhar, learned Sr. G.A. assisted by Mr. A. Dey, learned counsel appearing for the

respondents No.1 to 4 and Mr. A. Bhowmik, learned counsel appearing for the

respondents No.5 to 7.

2. The grievance of the petitioners are that their ejmali path [the

private land] comprised in R.S. Plot No.1136 corresponding to old R.S. Plot

No.5131 has been shown in the record of right being Khatian No.1/57 and 1/58 as

the government road illegally and hence, they had approached the revenue

authority to have the said land to its original status as Jote land. For correction of

the said entry, the petitioner had filed a proceeding before the Collector under

Section 11(3) of the TLR & LR Act. The said application being Revenue Case

no.441/2019 has been dismissed by the order dated 25.03.2021. The said order

has been appealed against under Section 93(1) of the TLR & LR Act being

Revenue Case No.06/2021 which is pending before the Secretary, Revenue

Department for disposal.

3. During pendency of that proceeding, Agartala Municipal Corporation

issued a notice dated 03.03.2022 [Annexure-11 to the writ petition] based on a

complaint filed by one Pranab Kumar Das, a neighbour. It has been stated in the

said notice that one of the petitioners have been creating obstruction over the said

pathway by constructing a gate at the west side and closing the entrance at the

east side of the public street with GCI fencing in an illegal manner. Such activities

of the petitioners have been creating public nuisance. By the said notice, the

petitioners were asked to remove the said purported encroachment/obstruction

from the said road/public street within seven days from the date of receipt of that

notice. The said notice has been challenged in this writ petition.

4. Mr. P. Roy Barman, learned senior counsel appearing for the

petitioners has contended that regarding the status of the land, the proceeding in

the form of appeal is still pending before the appellate authority. Therefore, the

existing structures cannot be directed to be removed by the Assistant Municipal

Commissioner, Central Zone, Agartala Municipal Corporation who issued that

notice dated 03.03.2022.

5. Mr. A. Bhowmik, learned counsel appearing for the Agartala

Municipal Corporation-respondents has stated that as on today, the said pathway

is a public pathway and as such, no part of it can be encroached or obstructed by

the petitioners. Unless, the record is changed, the petitioners cannot illegally

occupy any part of the said pathway or can they create nuisance in the movement

of the people. In this regard, he has referred to a decision of this court, delivered

in WP(C)No.180/2017 [Sri Rudranshu Debbarma and Another versus State of

Tripura and Others] dated 13.11.2017. By the said judgment, the following

observation has been recorded :

"10. Having thoroughly gone through the entire writ petition, it surfaced that this court is not aided by any averments or materials to come to a conclusion that there was damage or there was loss of materials or even there is no suggestion in respect of the quantum of damage that the petitioners have suffered. The respondents, no doubt, cannot encroach the jote land of the petitioners. Since, the respondents have categorically stated that they have not encroached any amount of jote land owned by the petitioners, this has become a highly disputed fact. This court under Article 226 of the Constitution of India is not supported by any mechanism to make enquiry or to record evidence to come to an inference about the encroachment and the damage. But no government or the local body shall encroach the immovable properties such as land without due process of law. Therefore, the respondents are restrained from encroaching or interfering with the land owned by the petitioners as stated earlier. But this court cannot grant any damage for the reasons as aforestated. However, the petitioners shall remain at liberty to take appropriate action at law for realising damage, if any, in the Civil court of the competent jurisdiction, if they are so inclined. But the petitioners are restrained from placing or creating any obstruction in the construction of that road or in respect of the use of that road which is connecting the main thoroughfare and the said water tank namely Satlakhi Pukur. The respondents are permitted to remove obstructions on the said road or the encroachment of the said water tank."

[Emphasis added]

The said judgment was not challenged by the petitioners who filed that writ

petition.

6. Mr. P.K. Dhar, learned Sr. G.A. appearing for the State-respondents

in terms of the order passed by this court on 21.03.2022 produced the records

from the Office of the Secretary, Revenue Department, Government of Tripura

who is in seison of the Appeal Case No.06/Appeal/Revenue/Secy/2021, under

Section 93(1) of the TLR & LR Act [Sri Kallol Debbarma versus State of Tripura

and Others]. From the aforesaid records, it appears that by the order dated

31.01.2022, the appeal has been fixed for hearing on 16.04.2022 at 4:00 PM. In

the substantive ends of justice the Principal Secretary, Revenue Department is

directed to dispose of that appeal on that very day so that the multiplicity of

litigations can be avoided in respect of the land which is the subject matter of the

said appeal. Mr. Dhar, learned Sr. G.A. shall inform of this order for which this

court will supply a copy thereof for onward transmission.

7. Meanwhile, Agartala Municipal Corporation-respondents shall not

take any further action pursuant to the notice dated 03.03.2022 [Annexure-11 to

the writ petition]. The petitioners are as well reminded of the prohibition as

recorded by this court in the judgment dated 13.11.2017. Therefore, they should

act accordingly. The Agartala Municipal Corporation-respondents shall be at liberty

to take further action, if required, subject to the final order that would be passed

in the appeal No. 06/Appeal/Revenue/Secy/2021. For this purpose, the Principal

Secretary, Revenue Department is requested by this court to send a copy of the

order that will be passed in the said appeal to the Assistant Municipal

Commissioner, Central Zone, Agartala Municipal Corporation immediately after the

order is delivered.

In terms of the above, this writ petition stands disposed of.

There shall be no order as to costs.

A copy of this order be supplied to the counsel for the parties.

The records as produced by the Mr. A. Dey, learned counsel

appearing for the State-respondents is returned.

JUDGE

Sabyasachi B