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1995 DIGILAW 101 (GAU)

Lukram Chura Singh v. State of Manipur

1995-05-24

H.K.SEMA

body1995
In this writ petition, the impugned order dated 22.11.1993 passed by the 2nd respondent purportedly in exercise of power conferred under Rule 15 (vii) of the Manipur Land Revenue and Land Reform (Allotment of Land) Rules, 1962, (hereafter MLR-LR Rules). By the aforesaid impugned order, the order dated 6.4.1979 allotting the land in favour of the petitioner has been cancelled with immediate effect and the allottee was directed to remove any construction he made on the land within 15 (fifteen) days from the receipt of the order. 2. Facts leading to the filing of the present petition may be briefly recited. Homestead land (Ingkhol) measuring 0.10 acre covered by CS Dag No.472 of Village No.83 Lamjaotongba, Imphal West Tahsil, was allotted in favour of the petitioner vide allotment order DC(C)/8/144/Rev./79 dated 6.4.1979. Sometime in June, 1979 the Jamabandi was prepared in the name of the petitioner being Patta No.83/606 (New under CS Dag No.472/818 measuring 0.10 acres. Subsequently, the land covered by order No.83/606 was amalgamated with another patta land covered by order No.83/509 vide order dated 10.1.1989 passed by the Sub-Deputy Collector (SDC). Consequently the land measuring altogether .37 acres covered by order No.83/297/509 under CSDagNo.736,472/818 stands in the name of the petitioner. However, sometime in the month of June, 1993 by a show cause notice dated 10.6.93 the petitioner was asked to show cause as to why the allotment of land made in favour of the petitioner measuring 0.10 acres of land should not be cancelled as void ab-initio. Petitioner submitted his show cause reply on 24.6.93, stating, inter alia, that the allotment of land was made in favour of the petitioner under section 14 (i) of the Manipur Land Revenue and Land Reforms Act, 1960, hereinafter the Act, and the petitioner did not violate any provision of the allotment Rules and therefore the notice was incompetent being without jurisdiction. The 2nd respondent after examining the show cause reply submitted by the petitioner, has passed the impugned order dated 22.11.1993 cancelling the allotment order dated 6.4.1979, hence the petition. 3. The 2nd respondent after examining the show cause reply submitted by the petitioner, has passed the impugned order dated 22.11.1993 cancelling the allotment order dated 6.4.1979, hence the petition. 3. The impunged order has been assailed on the following grounds : (a) the 2nd respondent was incompetent to pass the impunged order in exercise of power under Rule 15 (vii) inasmuch as under the Rule the same can be exercised only by the Deputy Commissioner; (b) even if assuming that such power can be exercised by the 2nd respondent, the condition precedent for exercising the power under the Rule was absent and therefore, there was no occasion for the 2nd respondent to have exercised the power under Rule 15 (vii). 4. Counter on behalf of the respondents has been filed. In paragraph 3 of the counter, it is averred that the Deputy Commissioner has no jurisdiction to allot the land in question without inviting objections as the said land forms part of the road-side reserved. Further, the status of the land being (Sarkari Pukhri), the area is not fit to be thrown for settlement under the Act. It is, further, averred that the allotment order was in violation of section 13 of the Act and Rule 13 of the Rules and it is void ab-initio. The further case of the respondents is that under section 99 (2) (i) of the Act no right could have been accrued to an individual in respect of public tank. 5. Rule 15 of the Rules provides the condition to be fulfilled for allotment of the land under sub-section 1 of section 14. The further case of the respondents is that under section 99 (2) (i) of the Act no right could have been accrued to an individual in respect of public tank. 5. Rule 15 of the Rules provides the condition to be fulfilled for allotment of the land under sub-section 1 of section 14. Rule 14 (vii) is relevant for the purpose deciding the case in hand reads as under : “(vii) The allotment shall be liable to be cancelled if, except in cases failing under clause (iv), the land is not used within 2 years of the date of allotment for the purpose of which it was allotted or if the allottee commits a breach of any of the conditions of allotment or the provisions of these Rules and the Deputy Commissioner may re-enter the land.” A reading of the Rule 15 (vii), it clearly appears that allotment of the land under sub-section (i) of the Act can be cancelled by the Deputy Commissioner in exercise of power under Rule 15 (vii) of the Rules, if the following conditions precedent are present: (i) if the land allotted is not used within 2 years of the date of allotment, for the purpose of which it has been allotted; (ii) if the allottee commits a breach of any of the conditions of allotment or the provisions of the Rules; (iii) after fulfilling the conditions precedent as contained in (i) and (ii) above, the learned Deputy Commissioner can pass an order cancelling the allotment order. 6. In the case at hand, admittedly, the impunged order has not been passed by the learned Deputy Commissioner in exercise of power under Rule 15 (vii) and therefore it cannot be said that the 2nd respondent has properly exercised the power under Rule 15 (vii). However, in the instant case provision of Rule 15 (vii) has to be read along with the provisions of Rule 13 of the Rules and section 99 (2) (i) of the Act. Therefore, the case falls for consideration is that whether in the face of provision of section 99 (2) (i) of the Act and Rule 13 of the Rules, the Deputy Commissioner was competent to pass allotment order. 7. Section 99 (2) (i) provides the rights of the land-owner at the commencement of the Act. Sub-section 2 (i) of section 99 is an exclusionary provision. 7. Section 99 (2) (i) provides the rights of the land-owner at the commencement of the Act. Sub-section 2 (i) of section 99 is an exclusionary provision. Sub-section (2) (i) of the section 99 reads : “No rights shall accrue under sub-section (i) in respect of land which : (i) are apart of the bed of a river, a nallah, a stream or a public tank.”(emphasis supplied). Therefore, it clearly appears that by virtue of sub-section (2) (i) of the section 99, the land which are part of bed a river, nallah, a stream or a public tank, no right can be accrued to the individual even after the allotment is made in respect of the land covered be sub-section (2) (i) of section 99. 8. In the instant case Dak Chitha of the land in question prepared in 1959 has been annexed herein as Annexure D/l(i) of the counter of the respondents. In colum No. 15 of the Dak Chitha the description of the land is 'tank'. Therefore, by virtue of provision of sub-section (2)(i) of section 99, no right could have been accrued to the petitioner in respect of a public tank. Further, Rule 13 of the Rules prohibits allotment of land within certain distance of road and town land without prior sanction of the Administrator (now the State Govt). Rule 13 (i) reads as under : “13. (i) Notwithstanding anything contained in the foregoing rules, no land lying within fifteen metres of the centre line of any public road in a town or within twenty metres of the centre line of any main road or within five metres of the centre line of any village road and no town land shall be allotted without the prior sanction of the Administrator.” It is averred in paragraph 3 of the counter that the land in question allotted in favour of the petitioner was not only a public tank, but also lying within twenty metres from the centre of Imphal - Jiribam main road, and the same has been allotted without the sanction of the competent Government as enjoined under Rule 13 (i). Imphal Jiribam road (New Motorable Cachar Road) has been shown in the schedule as main road (State Highway). Admittedly, the allotment in favour of the petitioner has been made without prior sanction of the Govt. as enjoined under Rule 13 of the Rule. Imphal Jiribam road (New Motorable Cachar Road) has been shown in the schedule as main road (State Highway). Admittedly, the allotment in favour of the petitioner has been made without prior sanction of the Govt. as enjoined under Rule 13 of the Rule. Therefore, the allotment by the Deputy Commissioner on 6.4.79 in favour of the petitioner was without jurisdiction and void ab-initio and none-est. In such a situation, no right can be said to have been accrued to the petitioner. In this connection Mr. Shyamkishore Singh has referred to a decision of the Apex Court in Chiranjilal Shrilal Goeka vs. Jasjit Singh & others, (1993) 2 SCC 507 where the Apex Court has held that decree passed without jurisdiction is a nullity and is none-est, and its validity can be raised even at the execution stage. The Apex Court further held that when the statutes does not confirm the jurisdiction, no Court can confirm jurisdiction on it even on basis of the consent of the parties. 9. For the aforestated reason the allotment of land dated 6.4.79 was without jurisdiction and void ab-initio, has been rightly cancelled by the impunged order. There is no merit in this writ petition and same is accordingly dismissed. 10. Despite of the dismissal of the writ petition I shall constrain to note that averment has been made in paragraph 13 of the petition that the petitioner has been using and possessing the land by constructing dwelling houses. This averment was, of course, denied by the respondents in para 8 of the counter that the petitioner did not use the allotted area for homestead purpose and tank is still found using by the inhabitants of the nearby localities. However, considering the averment made in paragraph 13 of the petition, the learned Deputy Commissioner, Imphal shall inspect the land in question and if any construction is to be demolished during the eviction process, the petitioner shall be paid compensation on the basis of assessment made by the Deputy Commissioner before the petitioner is evicted. If, however, the learned Deputy Commissioner found that any portion of land occupied by the petitioner does not fall within public tank and within 20 metres from the centre of Imphal-Jiribam Road (New Motorable Cachar Road), he shall not be evicted from that portion. Subject to the aforesaid observation, this petition stands dismissed, no costs.