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2014 DIGILAW 210 (TRI)

Niranjan Debnath v. Basanti Nath

2014-06-05

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. D. K. Biswas, learned counsel appearing for the petitioner as well as Mr. A. Lodh, learned counsel appearing for the respondent. 2. By this petition, legality of the order dated 20.07.2007, Annexure-5 to the writ petition, has been questioned. It is apparent on the face of the record that the petitioner was never in possession in the allotted land pertaining to Khatian No. 505 of mouja-South Padmabill, Tahasil-Panisagar corresponding CS Plot No. 173 and under old CS Plot No. 373(P) corresponding to present CS Plot No. 681/2876. However, the report of the Sub-Divisional Magistrate reveals the description of land as under: CS Plot No. Sabek 173/P, Hal 2876 classified as Tilla having area of 1.23 acres. 3. The said land was allotted in favour of the petitioner by the allotment order dated 24.04.1976, Annexure-A/1 to the writ petition. Thereafter, the petitioner's name has been mutated as the raiyat in possession. However, the total land in the Khatian has been shown to be 1.42 acre. The respondent filed a petition to the Collector on 03.02.2005 contending inter alia that she had been possessing the said land for over a period of 40 years by planting bamboo, jackfruit and other variety of trees. But ignoring the possession of the respondent, the collector had allotted the said land measuring 1.23 acre behind her back. She has contended in that petition for cancellation that no field inquiry or verification was carried out before making the allotment in favour of the petitioner. The petitioner was given notice to have his say on the petition that was filed by the respondent. By filing a written objection on 31.07.2007, the petitioner has stated that the petitioner was in the possession through his wife, now deceased, and in acknowledgment of his possession during the survey settlement operation, the plot which was allotted in his favour was recorded in his name in the finally published Khatian. 4. However, the Collector after having the plots surveyed by the SDM has held that the allotment was not properly done as the respondent was in the possession at the time of allotment. 4. However, the Collector after having the plots surveyed by the SDM has held that the allotment was not properly done as the respondent was in the possession at the time of allotment. It can further be gathered from the report of the SDM that "during resettlement operation the disputed plot was allotted in favour of the OP under Khatian No. 505 of mouja-Padmabill." It is to be noted that the petitioner was the opposite party in the proceeding for cancelling the allotment order. 5. After the field verification the impugned order dated 20.07.2007 has been passed by the District Collector, North Tripura, Kailashahar. 6. Mr. Biswas, learned counsel for the petitioner has submitted that the allotment order can only be cancelled for breach of the conditions but the petitioner has not caused any breach of the conditions as recorded in the allotment order and as such ex facie the impugned order is illegal and cannot be sustained. 7. From the other side, Mr. Lodh, learned counsel for the respondent has submitted that the breach looms large on the face of the record. Even though the order of allotment was made on 24.04.1976, the petitioner came never in possession. No such averment has been made in the entire writ petition. On the contrary, the averment as made in para-7 (at page-6) that while passing the order, the District Collector was in serious remiss of the law regarding possession of the allotted land by a person other than the allottee. The allotment of land by the authority is never related to the question of preference on existing possession rather it is related to the eligibility of the applicant. The person in possession of the allotted land is a trespasser and has to be evicted by the Government before handing over the possession to the allottee as provided under Rule 15 of the TLR and LR Rules. That apart, Mr. Lodh, learned counsel has raised the question of maintainability of the writ petition as the Tripura Land Revenue and Land Reforms (TLR & LR) Act, 1960 provides by way of Section 93(1)(c) an avenue to appeal against any order passed by the District Collector. Without taking that recourse, the petitioner has approached this Court and as such this petition should not be entertained. 8. Without taking that recourse, the petitioner has approached this Court and as such this petition should not be entertained. 8. While appreciating the submissions made by the learned counsel for the parties, this Court has noticed that proviso 3 to Rule 12(1) of the Allotment of Land Rules, 1980, pari materia to the provision of the repealed Land Allotment Rules, 1962, provides that the allottee shall bring the whole area under cultivation within the time specified in the allotment order. In the Rules, the Form of the allotment order is available at Appendix-B. The condition of the allotment as provided in Clause-9 of the prescribed form reads as under: (9) The allotment shall be liable to be cancelled if - (a) except in cases falling under clause (4), the land is not used within two years of the date of allotment for the purpose for which it is allotted; 9. The clause (4) as referred in the clause 9(a) provides that: In case of waste land allotted for agricultural purpose the allottee shall bring the whole area under cultivation within five years from the date of allotment. 10. In this case, there cannot be any dispute, particularly in view of the averments made in para-7 and the inquiry report by the SDM that the petitioner was never in possession of the allotted land. Hence, this Court does not find any infirmity in the impugned order. The question of maintainability as raised by Mr. Lodh, learned counsel for the petitioner is discarded by this Court as the order passed under Section 95 of the TLR & LR Act, 1960 it is an order of revision. Against any order of revision no appeal is maintainable vide judgment and order dated 06.03.2007 passed in Writ Appeal No. 52 of 1999 in Rajmohan Chowdhury Vs. Mangchai Mag and others by a division bench of the Gauhati High Court and as such his submission on existence of alternative remedy cannot be tenable. 11. Having held so, this petition stands dismissed. However, there shall be no order as to costs. 12. If the petitioner has got any right, he will be at liberty to approach the civil court or any other forum, if the petitioner is otherwise entitled in law. The operation of this order shall remain in abeyance for 30 days from today to enable the petitioner to take the recourse, if available at law.