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2007 DIGILAW 384 (GAU)

K. Lalzidingliana v. State of Mizoram

2007-05-30

HRISHIKESH ROY

body2007
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. M. Guite learned Counsel for the petitioner. Also heard Ms. Helen Dawngliani learned Assistant Government Advocate for the State respondents. Although notice was issued to private respondent No. 7, none appears to represent her in the present case. 2. The present dispute is over a plot of land measuring 11.66 Bighas located near Air Field, Pengthlang, Zemabawk of Mizoram State. 3. The claim of the petitioner is that on an application made by him, the Asstt. Settlement Officer-II had issued a Periodic Patta on 27.04.05(Annexure-I) in respect of the land in question, in favour of the writ petitioner for a period of 5 years beginning from 2005 to 2009. Following the allotment, the petitioner paid the requisite Periodic Patta fee to the Revenue Department on 27.4.05 itself for which a receipt was issued which is marked as Annexure-II to the writ petition. However, the respondent No. 7 had made an application for allotment for the very same land and it appears that the respondent No. 7 had made her application for allotment some time in the month of November, 2001. But, although measurement of the land in question, was undertaken on 23.11.01 at the instance of the respondent No. 7, the petitioner was first favoured with Periodic Patta on 27.4.2005. Notwithstanding the issuance of Periodic Patta in favour of the petitioner, the respondent authorities had also considered the application of the respondent No. 7 and vide order dated 25.7.05 had also issued a Periodic Patta of the land in question, in favour to the respondent No. 7. 4. Confronted with the allotment of the same land to both the petitioner as well as respondent No. 7, a show cause notice dated 25.10.05 was issued to the petitioner by the Director, Land Revenue & Settlement, Mizoram whereby, the petitioner was asked to show cause as to why the Periodic Patta issued to him should not be cancelled. The petitioner in his reply dated 9.2.06 indicated that following the allotment of the land in question, he has been looking after the said land and he has no information that the very same land was also measured at the instance of Respondent No. 7. Accordingly, he requested not to cancel the Periodic Patta granted to him. 5. The petitioner in his reply dated 9.2.06 indicated that following the allotment of the land in question, he has been looking after the said land and he has no information that the very same land was also measured at the instance of Respondent No. 7. Accordingly, he requested not to cancel the Periodic Patta granted to him. 5. By the impugned order dated 30.5.06 issued by the Director, Land Revenue & Settlement, the Periodic Patta granted to the petitioner for the subject land was cancelled on the basis of a decision taken by the Government in the matter. It appears from the impugned order dated 30.5.06 that the said cancellation was ordered as the Government record revealed that the said land, although allotted to the petitioner at an earlier point of time then respondent No. 7, the land had been verified and measured for the respondent No. 7 before it was verified and measured for the petitioner. On the basis of aforesaid reasoning, the impugned cancellation order was issued. 6. Mr. M. Guite learned Counsel for the petitioner submits that even prior to consideration of the show cause reply furnished by the petitioner on 13.3.06, the respondent authorities not only failed to consider the said show cause reply and even before cancellation of the Periodic Patta granted in favour of the petitioner on 30.5.06, issued a certificate dated 23.3.05 whereby Permanent Settlement of the land in question, in favour of the respondent No. 7 was made by the authorities. 7. It is contended on behalf of the petitioner that allotment of land in the State is governed by the provisions of The Mizo District (Agricultural Land) Act, 1963 (hereinafter referred to as the Act) and the provisions of The Mizo District (Agricultural Land) Rules, 1971. Under the provision of Section 4 of the Act, allotment can be made of vacant land by issuance of Patta and a person is prohibited by Section 5 of the Act, to occupy and possess any land without obtaining allotment and Patta in accordance of the provisions of the Act. It is further under Section 7(2) of the Act that no person shall acquire by length of possession or otherwise any right over the land unless Patta is obtained in respect of such occupied land. The provisions of Sections 4, 5 and 7(2) of the Act are extracted for ready reference: Section 4 Allotment: 1. It is further under Section 7(2) of the Act that no person shall acquire by length of possession or otherwise any right over the land unless Patta is obtained in respect of such occupied land. The provisions of Sections 4, 5 and 7(2) of the Act are extracted for ready reference: Section 4 Allotment: 1. The Administrator or the Officers authorized by it, in writing shall have the power to allot any vacant land for the purpose of any farm. 2. All such allotments shall be made by issue of Patta in a prescribed form. 3. The Administrator or Mizoram may, by rules, impose such conditions as it may deem reasonable on all allotments of lands made under Sub-section (1) of this section in the interest to General Public or of Scheduled Tribe. Section 5 No persons shall occupy and take possession of any land unless allotted and Patta obtained in accordance with the provisions of this Act. Sectiion-7(2): No person shall acquire by length of possession or otherwise any right over land disposed of, allotted or occupied, unless registered and Patta obtained in accordance with provision of this Act. 8. Rule 3 of the Rules permit disposal of vacant land by issuance of Patta or Periodic Patta as prescribed by the Rules. Rule 6 indicates that Temporary allotment are made by issuing Periodic Patta and Permanent Allotment or Settlement are made by issuing Patta. Applications for allotment are to be made under Rule 7 and on receipt of such application for Temporary Allotment, the authorities are required to verify the land applied for, unless the application is summarily rejected. Under Rule-9, before settlement is made and Patta is issued, it is necessary to verify and ascertain whether the land in question, is available for settlement and is also free from all encumbrances. Rule 10 prescribes that after verification report and after making such further investigation and ascertaining whether the land is free from all encumbrances for allotment, may either grant or refuse allotment. Sub-Rule (2) of Rule 10 prescribes a similar exercise as above for Permanent allotment of land. Rule 10 prescribes that after verification report and after making such further investigation and ascertaining whether the land is free from all encumbrances for allotment, may either grant or refuse allotment. Sub-Rule (2) of Rule 10 prescribes a similar exercise as above for Permanent allotment of land. Rule-24 provides that upon allotment of land necessary information would be entered in the Register maintained for the purpose and on completion of the registration under Rule-25, a Periodic Patta or any other Patta as the case may be shall be issued to the Patta holder on payment of the requisite fee. 9. By referring to the aforesaid provision of the Act and the Rules, the learned Counsel for the petitioner submits that as the petitioner was allotted a Periodic Patta on 27.4.05 and the said allotment has also been registered on payment of requisite fee in the appropriate register, the authorities could not have considered the said allotted land, to be available and vacant and free from all encumbrances, as the petitioner was in lawful occupation of the land in question, at least since allotment of the Periodic Patta dated 27.4.05. Accordingly, it is contended that three months after issuance of Periodic Patta to the petitioner, the respondent authorities could not have issued Periodic Patta on 25.7.05 in favour of the respondent No. 7 by disregarding the provisions of the Rules referred to hereinabove. It is further contended that on the basis of the aforesaid provisions of the Act and Rules, the authorities could not have also issued Permanent Settlement order in favour of Respondent No. 7 as was ordered on 23.3.05, as by that time, the petitioner was already put in lawful possession of the land by issuance of Periodic Patta in his favour on 27.4.05. 10. The learned Counsel for the petitioner has also referred to the decision of this Court rendered on 18.6.03 in R.S.A. No. 3/2002, which pertains to settlement of land for dwelling purpose. In that case, the subject land was allotted twice to different persons and this Court held that subsequent allottee will have no right over the land and directed restoration of possession to the first allottee. 11. Ms. Helan Dawngliani, the Asstt. Govt. In that case, the subject land was allotted twice to different persons and this Court held that subsequent allottee will have no right over the land and directed restoration of possession to the first allottee. 11. Ms. Helan Dawngliani, the Asstt. Govt. Advocate on the other hand, has submitted that as the respondent No. 7 had applied for the land in question, as early as in the year 2001 and as the petitioner's application for allotment was of a later date, the respondent authorities took the decision to cancel the allotment made in favour of the writ petitioner and accordingly, issued the impugned cancellation order dated 30.5.06. It is further contended by the learned Counsel that as the land in question, is being claimed by both the petitioner and respondent No. 7, an effort for equal bifurcation of the land between the two claimants were made by the settling authorities. But the said efforts did not fructify since it was not acceptable to the petitioner as well as respondent No. 7. The learned Govt. counsel also referred to the provision of Rule 11 of the Rules which indicates that when more than one person applies for the same land, the authority shall have the discretion to give priority to any of the applicants as may be considered appropriate. 12. Responding to the arguments advanced on behalf of the respondent State, Mr. M. Quite learned Counsel for the petitioner submits that only when the land is vacant and is available for settlement free from all encumbrances, authorities could take a decision to give settlement of such vacant and unencumbered land in favour of an applicant. But when allotment of the land was already made by issuing Periodic Patta on 27.4.05 in favour of the petitioner, the respondent authorities could not have considered the said land to be available and vacant for allotment to any other person including the respondent No. 7. Accordingly, it is contended that the allotment orders made in favour of the respondent No. 7 as well as impugned Patta cancellation order dated 30.5.06 are liable to be interfered by this Court. 13. I have considered the submissions made by the learned Counsels representing the petitioner and the State. Accordingly, it is contended that the allotment orders made in favour of the respondent No. 7 as well as impugned Patta cancellation order dated 30.5.06 are liable to be interfered by this Court. 13. I have considered the submissions made by the learned Counsels representing the petitioner and the State. From a reading of the provisions of the Act and more particularly, the provision of Section-4, it is clear that the allotment of only vacant land is envisaged by the Act. Similarly the Rule-6 also envisages allotment of vacant land only. Provisions of Rules 8, 9 and 10 of the Rules clearly require that on an application for allotment of land, the survey, measurement, verification and demarcation is to be made for giving settlement of land. Such verification and investigation should clearly indicate that the concerned land is available for settlement and the said land is free from all encumbrances. Rule 24 and Rule 25 provide for entering the information of allotment/settlement in a register meant for the purpose and the requisite information pertaining to settlement given to the petitioner on 27.4.05 are required to be entered to the register meant for the purpose as the petitioner has paid the requisite fee for registration of his allotment as envisaged by Rule 25 of the Rules. 14. Having regard to the provisions of the Act and Rules as noticed above, I am of the view that the power of settlement of the land could be exercised under the provisions of the Act and Rules by the authorities only in respect of a vacant land and not in respect any land which is already under the allotment to another. For making allotment of any particular land, the authorities must verify and be fully satisfied after making such investigation as may be considered necessary that the land in question, is free from all encumbrances. The authorities are also required to ascertain from the register maintained under the provisions of Rules 24 and 25 as to whether a particular plot of land is already registered in the name of another allotment holder. Only after the authorities are satisfied on all the three counts as indicated above, allotment of land in favour of an applicant could be made. Unless the said 3 requirements are fulfilled, there could be no allotment of land in favour of any applicant. 15. Only after the authorities are satisfied on all the three counts as indicated above, allotment of land in favour of an applicant could be made. Unless the said 3 requirements are fulfilled, there could be no allotment of land in favour of any applicant. 15. In the instant case, it is found that the land in question, has already been allotted on 27.4.05 to the petitioner and immediately thereafter, the said land was occupied by the petitioner and he remains in possession of the land by making cultivation over the said land. 16. Under the circumstances, it could not be said that on or after 27.4.05, the land in question, was either vacant or was free from encumbrance and accordingly, the same could not have been allotted to anyone else. After 27.4.05, the occupation of the petitioner on the land in question, was on the basis of a legitimate allotment order which is valid and effective till the year 2009. Even thereafter, the petitioner has a right to seek extension of his Periodic Patta or seek Permanent Patta. 17. In the present case, the allotment of the very same land was made on 25.7.05 in favour of respondent No. 7 by issuing Periodic Patta which was followed by a Permanent Settlement order on 23.3.06. On both dates i.e. 25.7.05 and 23.3.06, the allotment order made in favour of the petitioner on 27.4.05 was subsisting. Therefore the respondent authorities could not have made allotment of the said land to respondent No. 7 as it was already allotted to the writ petitioner. 18. In view of the aforesaid discussions, the contention advanced on behalf of the petitioner are found to have sufficient legal force. Accordingly, the said contentions are accepted. 19. As a consequence, this writ petition is allowed and the impugned cancellation order dated 30.5.06 as well as the Periodic Patta No. 384 of 2005 dated 25.7.05 and also the Garden LSC No. 94 of 2006 granting the land in question in favour of the respondent No. 7 are hereby quashed. 20. The petition is allowed in terms of the above order No cost. Petition allowed.