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2016 DIGILAW 123 (TRI)

Usha Rani Shil v. State of Tripura

2016-06-06

S.C.DAS

body2016
JUDGMENT : With the consent of learned counsel of the parties the writ petition is taken up for final disposal at the admission stage itself. 2. Heard learned counsel, Mr. I. Chakraborty for the petitioners and learned G.A., Mr. T. Dutta Majumder for respondent Nos.1 and 2 and learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Ms. A. Banik for respondent Nos.3 to 9. 3. Undisputed fact in short is that land measuring 3.52 acres at Mouja Harina was allotted by the Collector by an order of allotment dated 13.08.1975 in the name of Atul Chandra Shil, since deceased, the predecessor of the petitioners. Pursuant to allotment, Khatian No.515 was opened in the name of Atul Chandra Shil. 4. Raimohan Debnath, the predecessorininterest of respondent Nos.3 to 9 made an application before SDM(Collector), Sabroom seeking cancellation of allotment in respect of 0.89 acres of land out of the total allotted land of 3.52 acres claiming that they were in possession of the land all along. The application filed by Raimohan Debnath was registered as Case No.1(Allot)/2003 before the SDM(Collector), Sabroom and by an order dated 18.10.2004 SDM(Collector), Sabroom allowed the petition filed by Raimohan Debnath and cancelled the allotment in respect of 0.89 acres of land out of the total allotted land of 3.52 acres. 5. The petitioners challenged that order before the District Magistrate & Collector by filing an appeal under Section 93 of the TLR & LR Act, 1960 which was registered as Revenue Case No.74 of 2004 and the Collector by order dated 25.06.2007 set aside the order of SDM, Sabroom dated 18.10.2004. The respondents challenged the order of Collector before Secretary, Revenue under Section 93(2) of the TLR & LR Act and the Secretary, Revenue by order dated 17.01.2015 dismissed the appeal but observed that the appellants before him(respondents herein) will be at liberty to file a fresh petition to SDM(Collector), Sabroom for cancellation of allotment order as per the provisions of TLR & LR (Allotment of Land) Rules, 1962. The relevant part of the order passed by the Secretary, Revenue Department reads as follows: “From the examination of case records, relevant allotment rules and aforesaid judgment of Ld. The relevant part of the order passed by the Secretary, Revenue Department reads as follows: “From the examination of case records, relevant allotment rules and aforesaid judgment of Ld. High Court, it is revealed that specific provision available under TLR & LR(Allotment of Land) Rules, 1962 only could have been applied by SDM, Sabroom for cancellation of allotment of land made prior to TLR & LR(Allotment of Land) Rules, 1980 came into force. Thus, the order of ADM & Collector, South Tripura is found to be in order and is upheld. The first party, however, is at liberty to file a fresh petition to SDM, Sabroom for cancellation of allotment order as per provision of TLR & LR(Allotment of Land) Rules, 1962. If it so happens, the SDM, Sabroom is hereby directed to hear the case afresh and dispose within three months from the filing of fresh petition. With this direction, this case is hereby disposed. Inform all concerned.” 6. The respondents, thereafter filed a petition seeking cancellation of allotment before the SDM(Collector), Sabroom and by impugned order dated 22.07.2015 learned SDM(Collector), Sabroom again directed cancelation of allotment to the extent of 0.89 acres out of the total allotted land of 3.52 acres. The relevant part of the order passed by the SDM(Collector), Sabroom reads as follows: “………………….. This Court has received a petition from the petitioners namely Sri Nimai Debnath & others, survivors of Rai Mohan Debnath of harina, in pursuance of the order of the Secretary, Revenue Deptt. On perusal of the order of the Revenue Secretary, petition & case records of the earlier cancellation of allotment order by SDM, Sabroom passed on 18/01/2004 vide Case bearing No.1/Allot/2003, it appears that the allottee namely Atul Ch Shil S/OBasant Kr Shil has failed to bring the land measuring 0.89 acres out of total 3.52 acres pertaining to sabek plot No.684/2202 of khatian No. 717 corresponding to hal khatian No.515 of mouja Harina under use for the purpose for which it was allotted to him vide Allotment order No.16 dated 09/08/1975. This is violation of the terms & conditions of Allotment of land as indicated in rule15 of the TLR & LR(Allotment of land) Rules, 1962. It appears that there is no further need of enquiry since the issue of compliance of terms and conditions of allotment is concerned, has already been decided. This is violation of the terms & conditions of Allotment of land as indicated in rule15 of the TLR & LR(Allotment of land) Rules, 1962. It appears that there is no further need of enquiry since the issue of compliance of terms and conditions of allotment is concerned, has already been decided. There is no dispute on this aspect as far as the orders of the ADM & Collector, South Tripura & Secretary, Revenue Deptt, are concerned. Hence, I, am of the opinion that the allottee has violated the provision of rule15 of the TLR & LR(Allotment of land) Rules, 1962. Therefore, the allotment order in favour Atul Ch Shil for land measuring 0.89 acres out of total 3.52 acres pertaining to sabek plot No.684/2202 of khatian No.717 corresponding to hal khatian No.515 of mouja Harina, is hereby cancelled under the provision of rule15 of the TLR & LR(Allotment of land) Rules, 1962 and the same shall be recorded as govt. khas land. Let a copy of this order be sent to concerned Tehsildar & I/C, CLR Section, Sabroom Revenue Circle for necessary action. The case is hereby disposed off.” 7. Felt aggrieved by the above order the petitioners challenged the entire proceedings before the SDM(Collector), Sabroom and also challenged the order passed by the Secretary, Revenue dated 17.01.2015. 8. Learned G.A. produced the relevant records of Revenue 9. It is an admitted position that learned SDM(Collector), Case No.1/Allot/2015 pending before the SDM(Collector), Sabroom. Perused the same. Sabroom entertained the petition seeking cancelation of allotment under TLR & LR(Allotment of Land) Rules, 1962. The State respondents placed on record a copy of the Rules of 1962 as AnnexureR/2. Rule 15 of the Rules of 1962 reads as follows: “15. An allotment of land under subsection (1) of section 14 shall be subject to the following conditions, namely- (i) the land shall not be transferred by the allottee within ten years from the date of allotment, without the written consent of the Collector; Provided that the land may be mortgaged to a cooperative society, a cooperative bank or land mortgage bank or the Government without such consent; (ii) an allottee on giving three months’ notice before the end of an agricultural year and on payment of all Government dues in respect of the allotted land upto the end of the said agricultural year may surrender the land allotted to him. On such surrender being made, the land shall revert to the Government; (iii) in case the allottee is a cooperative farming society and the registration of such society is cancelled within ten years from the date of allotment the land allotted to such society shall thereupon be deemed to have been resumed by the Government and the Government shall not be liable to pay any compensation; Any person holding or retaining possession of such land thereafter shall be deemed to be a trespasser. (iv) in case of waste land allotted for agricultural purposes, the allottee shall bring the whole area under cultivation within three years from the date of allotment; (v) the allottee shall be liable to pay such amount as land revenue as may assessed under the Act and the Rules made thereunder; (vi) the allottee shall within the time fixed in the allotment order pay to the Government an amount equal to the market value of the trees and structures, if any, standing on the land; (vii) the allotment shall be liable to be cancelled if, except in cases falling under clause (iv), the land is not used within 2 years of the date of allotment for the purpose for 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 Collector may reenter on the land: Provided that no such cancellation or reentry shall be made unless the allottee is given a reasonable opportunity of being heard; (viii) no compensation shall be payable by the Government on account of cancellation of any allotment or reentry by the Collector under these rules, but if the allottee has built any constructions on the land he shall be allowed a reasonable opportunity to remove the same.” 10. It appears, learned SDM(Collector), Sabroom passed impugned order dated 22.07.2015 invoking provision of Rule 15 of TLR & LR(Allotment of Land) Rules, 1962 observing that the allottee, i.e. the petitioners/their predecessor failed to utilize the land for the purpose for which it was allotted. 11. A bare reading of the order itself, as well as the record placed by learned G.A. makes it abundantly clear that no evidence was collected and considered by learned SDM(Collector), Sabroom at the time of passing the order. The allotment was made in the year 1975. 11. A bare reading of the order itself, as well as the record placed by learned G.A. makes it abundantly clear that no evidence was collected and considered by learned SDM(Collector), Sabroom at the time of passing the order. The allotment was made in the year 1975. Khatian was prepared in the name of the predecessor of the petitioners, i.e. the allottee thereafter in due process. Learned SDM by a stroke of pen cancelled the allotment in respect of 0.89 acres out of allotted land whereas on the basis of what material he arrived at a decision to cancel it has not been stated. 12. Chapter VIII of the TLR & LR Act, 1960, Sections 81 to 98 deal with the provisions relating to procedure of revenue officers dealing with a revenue proceeding. Section 81 prescribes that a revenue officer, while exercising power under the Act or any other law for the time being in force to inquire into or to decide any question arising for determination between the Government and any person or between parties to the proceedings, shall be a revenue court. Section 85 of the Act prescribes that every revenue officer not lower in rank than a circle officer acting as a revenue court shall have power to take evidence and to summon any person whose attendance he considers necessary either as a party or as a witness or to produce any document for the purpose of any inquiry which such officer is legally empowered to make; and all persons so summoned shall be bound to attend either in person or by an authorized agent as such officer may direct, and to produce such documents as may be required. In view of the above provision a revenue officer while dealing with a revenue proceeding is well empowered to exercise the powers as of a court and has the power to record evidence for deciding an issue either between the Government and any person or between the parties to any revenue proceeding. 13. Tripura Land Revenue and Land Reforms Rules, 1961, similarly in Chapter VIII, prescribed the procedure of revenue officers. Rules 124 and 125 are very relevant which read as follows: “124.(1) The procedure for revenue courts and of proceeding before revenue officer shall be governed by Schedule III. 13. Tripura Land Revenue and Land Reforms Rules, 1961, similarly in Chapter VIII, prescribed the procedure of revenue officers. Rules 124 and 125 are very relevant which read as follows: “124.(1) The procedure for revenue courts and of proceeding before revenue officer shall be governed by Schedule III. (2) Subject to the other provisions of these rules, any enquiry by a revenue court, not specifically required to be held in the manner provided for summary enquiry in Schedule III. 125. Subject to the provisions of the Act and these rules the Code of Civil Procedure 1908 shall, as far may be, apply to all or any of the proceeding taken by any revenue Court under the Act.” 14. Schedule III to the Rules prescribes detailed procedure in respect of a revenue proceeding as to how it is to be dealt by a revenue court. A revenue court is bound to follow the procedure prescribed therein, while deciding a revenue proceeding. 15. Unfortunately, in the present case, learned SDM(Collector), Sabroom while exercising power of a revenue Court has totally failed to follow the prescribed provisions in the Act and Rules and therefore the order itself is vitiated. 16. Reason is the sole of every order by any judicial or quasijudicial authority. Not a single line of reason has been assigned by the learned SDM(Collector), Sabroom while passing the impugned order dated 22.07.2015. He was supposed to make a detailed inquiry in respect of the claim and resistance of the contesting parties, record evidence which the parties like to produce and thereafter considering the evidence was supposed to take a decision according to law. 17. The Supreme Court in the case of Maya Devi v. Raj Kumari Batra reported in (2010) 9 SCC 486 has observed that reasons should be assigned by the authorities in support of the order. We may gainfully refer here para 22 and 28 of the judgment which read as follows: “22. The juristic basis underlying the requirement that courts and indeed all such authorities, as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in a long line of decisions rendered by this Court. The juristic basis underlying the requirement that courts and indeed all such authorities, as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in a long line of decisions rendered by this Court. In Hindustan Times Ltd. v. Union of India : 1998 (2) SCC 242 the need to give reasons has been held to arise out of the need to minimise chances of arbitrariness and induce clarity. …………………………………………………………………………………………. 28. It is in the light of the above pronouncements unnecessary to say anything beyond what has been so eloquently said in support of the need to give reasons for orders made by courts and statutory or other authorities exercising quasijudicial functions. All that we may mention is that in a system governed by the rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repository of such power. There is nothing like a power without any limits or constraints. That is so even when a court or other authority may be vested with wide discretionary power, for even discretion has to be exercised only along wellrecognised and sound juristic principles with a view to promoting fairness, inducing transparency and aiding equity.” On the same principle the Supreme Court in the case of Kranti Associates Private Limited v. Masood Ahmed Khan reported in (2010) 9 SCC 496 has observed- “12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasijudicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak v. Union of India, (1969) 2 SCC 262 : AIR 1970 SC 150 . ………………………………………………………………………………………… 14. The expression “speaking order” was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of writ of certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See pp. 187897, Vol. 4, Appeal Cases 30 at 40 of the Report) 15. The Lord Chancellor, while explaining the ambit of writ of certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See pp. 187897, Vol. 4, Appeal Cases 30 at 40 of the Report) 15. This Court always opined that the face of an order passed by a quasijudicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the “inscrutable face of a sphinx”.” 18. This is a settled position of law that any order passed by a judicial or quasijudicial authority or even an administrative authority must be supported by reasons. It is the settled principle that reason is the sole of the decision by any judicial or quasi judicial authority. For taking decision there must be facts placed before the Court in accordance with the provision prescribed by law. It may not be necessary for a revenue Court to follow the strict procedure prescribed under the Evidence Act and the Code of Civil Procedure but as prescribed under the TLR & LR Act, subject to the provisions contained in the TLR & LR Act and Rules the provisions of CPC also may be applied mutadis mutandis. Schedule III of TLR & LR Rules, 1961 has elaborately prescribed the procedure to be followed by the revenue Courts. Unfortunately, learned SDM(Collector), Sabroom has given goodbye to the procedure and arrived at a finding which is shocking to the judicial conscience. Since the order has been passed without following the procedure and without recording any evidence it is liable to be quashed. 19. Accordingly, order dated 22.07.2015 passed by learned SDM(Collector), Sabroom in Revenue Case No.01/Allot/2003 is set aside and quashed. 20. Parties are not debarred to make any fresh approach seeking any relief to the revenue authority according to law.