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2014 DIGILAW 320 (TRI)

Krishna Mohan Das v. Dhaneswar Debbarma

2014-08-06

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. Heard learned counsel Mr. D.K. Biswas for the petitioner and learned counsel Mr. D.C. Roy for the respondent No. 1 and learned counsel Mr. D.C. Nath for the respondent No. 2. 2. By filing this writ petition, under Article 226 of the Constitution of India, the petitioner challenged the order dated 24.03.2007 passed by the D.M. & Collector, Kailashahar, North Tripura in case No. Rev/Revision/79/2005 under Section 95 of the Tripura Land Revenue and Land Reforms Act, 1960 (for short, TLR & LR Act). 3. The petitioner’s case, in short, is that he got allotment of 0.85 acres of land for the purpose of dwelling and agriculture at Mouja Ganganagar under Kameswari Tehsil Kachari and on such allotment the land was recorded in Khatian No. 692, C.S. Plot No. 3983/4829 in the name of the petitioner. Respondent No. 1 since was disturbing the possession of the petitioner in the allotted land, the petitioner instituted Title Suit No. 02 of 2005 in the Court of Civil Judge, Jr. Division, Dharmanagar seeking perpetual injunction etc. against respondent No. 1 and the suit was decreed in favour of the petitioner by judgment dated 30.06.2005 and thereby the respondent No. 1 was restrained permanently from entering into and/or disturbing the possession of the petitioner in the suit land. A copy of this judgment is annexed as Annexure-2 to the writ petition. It is the case of the petitioner that after the Civil Court passed the decree, respondent No. 1 filed an application under Section 95 of TLR and LR Act before the D.M. & Collector, North Tripura, Kailashahar and the D.M. & Collector by impugned order dated 24.03.2007 allowed the prayer of respondent No. 1 and directed that the allotment in the name of the petitioner should be cancelled and that the land should be allotted in favour of the respondent No. 1 and Khatian should be prepared in the name of respondent No. 1. Copy of order dated 24.03.2007 is annexed as Annexure-3 to the writ petition. The petitioner produced copy of the judgment passed by the Civil Court before the Collector and the Collector thereafter passed an order that in respect of the record of rights Collector’s order shall prevail. A copy of that order (no date of the order) passed by the Collector is annexed as Annexure-4 to the writ petition. The petitioner produced copy of the judgment passed by the Civil Court before the Collector and the Collector thereafter passed an order that in respect of the record of rights Collector’s order shall prevail. A copy of that order (no date of the order) passed by the Collector is annexed as Annexure-4 to the writ petition. The petitioner, therefore, prayed for setting aside the order passed by the Collector. 4. Respondent No. 1 by filing counter affidavit contended that the respondent was all along in possession of the land allotted in the name of the petitioner and it was wrongly allotted in the name of the petitioner and therefore, the respondent contended that the order passed by the District Magistrate shall sustain. 5. Respondent No. 2 also submitted a counter affidavit stating that the land was wrongly allotted in the name of the petitioner and that Dhaneswar Debbarma, the respondent No. 1 since was in possession of the land, the Collector passed the order cancelling the order of allotment and directing allotment of the land in favour of respondent No. 1. 6. Learned counsel Mr. Biswas has submitted that the Civil Court while already decided the dispute in favour of the petitioner, the Revenue Court should not have entertained a petition under Section 95 on the same issue which has already been decided by a competent Civil Court. 7. Learned counsel Mr. Roy & Mr. Nath, on the other hand, has submitted that the Collector is empowered to cancel the order of allotment and while the Collector has cancelled the order of allotment, this Court in exercise of the power under Article 226 is not required to interfere in the order. 8. I have meticulously gone through the judgment passed by the Civil Court and the order dated 24.03.2007 (Annexure-3 to the writ petition) passed by the Collector. The impugned order passed by the Collector reads as follows:- 24.03.2007 Sri Dhaneswar Debbarma the 1st party was present along with his Ld. Advocate Sri Surendra Sutradhar. Sri Krishna Mohan Das the OP was absent without any step. During hearing the petitioner and his Ld. Advocate have stated that 0.85 acres of land under plot No. 3983/4829 in khatian No. 692 in revenue mouja Ganganagar under Kameswar TK is a khas land and the said is possessed by the petitioner Sri Dhaneswar Debbarma. Advocate Sri Surendra Sutradhar. Sri Krishna Mohan Das the OP was absent without any step. During hearing the petitioner and his Ld. Advocate have stated that 0.85 acres of land under plot No. 3983/4829 in khatian No. 692 in revenue mouja Ganganagar under Kameswar TK is a khas land and the said is possessed by the petitioner Sri Dhaneswar Debbarma. But in spite of the fact that Land is possessed by the petitioner, the said has been recorded in the name of Sri Krishna Mohan Das as allottee for the purpose of dwelling and agriculture. The land falls under ADC area and hence before any allotment of land, the priority should be given to the tribal landless persons residing in the area. But while making the allotment this has not been looked into. Moreover, the OP is having land in Padmabill area as allottee also. Therefore, the allotment given to Sri Krishna Mohan Das needs to be cancelled and land should be allotted in favour of the petitioner, the actual possessor of land. The issue was also enquired into by the Deputy Collector, Dharmanagar. In his report he stated that u/s. 14 of TLR & LR Act preference will have to be given SC/ST/Jhumia while allotting any khas land. Over and above to that the said land was allotted in favour of the OP by suppressing the actual possession by the petitioner. Hence the allotment order needs to be modified. Therefore, in view of the above, it is ordered that the allotment issued in favour of the OP in khatian No. 692, CS plot No. 3983/4829 corresponding sabek plot No. 4524 (P) classified as tilla measuring 0.85 acres should be cancelled and the said should be cancelled and the said should be re-allotted in favour of Sri Dhaneswar Debbarma. The SDM, Dharmanagar may take action accordingly. Sd/- (Santanu Das) District Collector, Kailasahar. 9. The above order does not show that any proceeding was initiated for cancellation of the allotment but it was simply a proceeding under Section 95 of the TLR & LR Act ignoring the judgment passed by the competent Civil Court. This Court, therefore, in my considered opinion has jurisdiction to entertain the writ petition in the given facts and circumstances of the case. Admittedly, the land in question was allotted in favour of the petitioner and khatian was prepared in his name. This Court, therefore, in my considered opinion has jurisdiction to entertain the writ petition in the given facts and circumstances of the case. Admittedly, the land in question was allotted in favour of the petitioner and khatian was prepared in his name. The petitioner instituted Title Suit No. 2/2005 against the respondent No. 1 seeking perpetual injunction and the suit was decreed in his favour on 30.06.2005. While the respondent No. 1 was already restrained by the Civil Court, how he can claim that he was in possession of the land allotted in the name of the petitioner. From the above order of the Collector, it is crystal clear that without recording any evidence the Collector summarily passed the order cancelling the order of allotment and directing re-allotment of the land in favour of respondent No. 1 totally ignoring the judgment and decree passed by the Civil Court. 10. The impugned order of the Collector dated 24.03.2007 is, therefore, liable to be interfered and accordingly it is set aside and quashed. 11. The writ petition is accordingly allowed. 12. Parties to bear their own costs.