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2018 DIGILAW 110 (CAL)

Anil Kumar Mridha v. Chief Secretary

2018-01-16

SAMBUDDHA CHAKRABARTI

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JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. This writ petition is directed against an order passed by the Principal Secretary (Revenue) i.e. the respondent no. 2 rejecting the petitioner's appeal against an order passed by the Deputy Commissioner i.e. respondent no. 3. The petitioner has prayed for a writ of mandamus commanding the respondents to take necessary steps for allotting five acres of land at Krishna Nagar village in Havelock. 2. The case of the petitioner is that he made an application before the respondent no. 3 to the effect that his father, late Ranjit Mridha was allotted five acres of agricultural land at Kalapathar in Havelock. He requested them to issue a patta pass book in respect of the said land. 3. The respondent no. 3 called for a report from the Tehsildar which disclosed that as per the records no land was allotted to the father of the petitioner in Havelock. The petitioner's father was residing in village Krishna Nagar in Havelock without any allotment. As per the local enquiry, the persons were asked to occupy the lands at Kalapathar but they refused during the allotment. So they asked for allotment at Krishna Nagar village where they were presently residing. The respondent no. 3 observed from report of the Tehsildar that the grandfather of the petitioner was allotted a plot of land measuring 4.05 hectares at village Krishna Nagar. Out of that property, 1.18 hectares of land is recorded in favour of the petitioner and 11 others. The respondent no. 3 observed that the petitioner was a dependent member of the settler family and like others belonging to his category land as admissible under the scheme was provided to him. 4. The petitioner was not a landless person and, therefore, he could not fulfill the criteria for allotment of land under the provisions of the relevant regulation or under any scheme which had long been closed. He rejected the application. 5. The petitioner filed an appeal before the respondent no. 2 and the respondent no. 2 by a speaking order dismissed the appeal. He also observed that as per the report of the Tehsildar, no land was allotted to the father of the petitioner in either of the circles in Havelock. The father of the petitioner was residing in Krishna Nagar without any allotment. 2 and the respondent no. 2 by a speaking order dismissed the appeal. He also observed that as per the report of the Tehsildar, no land was allotted to the father of the petitioner in either of the circles in Havelock. The father of the petitioner was residing in Krishna Nagar without any allotment. As per the local enquiry, the persons were asked to occupy the lands at Kalapathar but they refused during the allotment and asked for allotment in Krishna Nagar. The reason for dismissal of the appeal is the same as for the rejection of the application by the respondent no. 3. 6. Mr. Jayapal, the learned advocate for the petitioner, submits that 75 persons were allotted agricultural land in Kalapathar in Havelock District and all of them, except four, have been given possession by issuing the patta pass book. By not considering the case of the petitioner, the Administration has discriminated against him as about 71 original allottees who have been put into possession stood on the same footing as that of the petitioner. He has relied on the record of rights in respect of the allegedly favoured allottees and alleged that a land in Krishna Nagar measuring five acres had been allotted in lieu of the land in Kalapather. 7. Mr. Mandal, the learned Government Pleader, has strongly opposed this case and submitted that no allotment was made in favour of any one of the 75 persons as sought to be argued by the petitioner. The father of the petitioner was never allotted any plot of land either in Krishna Nagar or in Kalapathar. He had been residing at Krishna Nagar without any formal allotment of the authority. In the year 1970 land measuring five acres was allotted in favour of 75 persons in Kalapathar but none of them had taken possession or wanted to occupy the same. No formal licence was issued in favour of any of the 75 allottees. Therefore, the allotment was an incomplete one. 8. I have perused the writ petition and heard the learned advocates. No formal licence was issued in favour of any of the 75 allottees. Therefore, the allotment was an incomplete one. 8. I have perused the writ petition and heard the learned advocates. The sheet anchor of the petitioner's case appears to be an order dated August 27, 1970 issued by the Sub-Divisional Officer (SDM) which has been annexed to the writ petition as Annexure P-I. It provides a list of 75 persons and says that they were allotted five acres of land in Kalapathar for agricultural purposes subject to the general provisions of the relevant Regulations and Rules and also subject to the terms and conditions as were specified in the said order. The order contained several stipulations and a very important one was the last stipulation that formal licence would be issued in due course. 9. The case of the respondents is that in favour of none of the allottees any licence was ever issued. Therefore, the stand of Mr. Jayapal that only four persons have been discriminated against is not a depiction of the correct picture. 10. It is clear that formal licences were not issued in favour of four persons. Merely because four persons joined in making a representation does not prove that only they were the deprived persons. The record of right does not show that the lands in Krishna Nagar were allotted to others in lieu of the lands allotted in Kalapathar. 11. Therefore, the submission of the petitioner, claimed to have been based on the Records of Right, is a misconceived one. At most this is the petitioner's interpretation of allotment of any land in favour of some persons in Krishna Nagar, Havelock. In course of submission, Mr. Jayapal raised an issue about why otherwise the land should be allotted in favour of the others. Such submission on the face of it is unsustainable as allotment of lands in Krishna Nagar was not made only where the earlier allotment in Kalapathar was cancelled. 12. On the contrary, there was no question of allotting any land in favour of anybody in lieu of the allotment in Kalapathar as the allotment was never completed by issuing formal licence. A mere order of allotment without followed by a valid licence never makes any allotment complete. Licence is required to be issued by the Administration in accordance with the relevant Rules. A mere order of allotment without followed by a valid licence never makes any allotment complete. Licence is required to be issued by the Administration in accordance with the relevant Rules. Until and unless that is done, the allotment could not be said to have been completed in all respects. And if there was no complete allotment in Kalapathar in Havelock, there was no question of allotting any land in Krishna Nagar in lieu of any such incomplete allotment. Therefore, if any allotment in favour of any person was made in Krishna Nagar, it must be an independent allotment having no nexus, proximate or distant, with the order, dated August 27, 1970. The said order has not been operationalised in the legal sense of it and, therefore, the petitioner cannot rely on it once his father had declined to take possession. 13. In a case where the petitioner seeks to rely on an order of allotment, onus is entirely on him to prove that the order of allotment was complete in all respects i.e. that such order was followed by issue of formal licence. The petitioner has failed to discharge essential burden of proof. He has failed to discharge his burden which here, as in all other cases, never shifts. The petitioner has never been able to prove how his father came to occupy the plot of land in Krishna Nagar. He has no piece of documents justifying his father's possession there. On the other hand, it appears from the report filed the Tehsildar that the father of the petitioner encroached upon a plot of land measuring five acres in Krishna Nagar, developed the said land and made representation to the authorities to allot the encroached land in lieu of the land allotted to him in Kalapathar in Havelock. 14. In view of what had been stated above, it is clear that land in Kalapathar was never formally allotted in favour of the petitioner or none of the so called allottees as mentioned in the order, dated August 27, 1970. As such there was no question of allotting any plot of land in favour of the petitioner in lieu of the allotted land in Kalapathar. 15. As such there was no question of allotting any plot of land in favour of the petitioner in lieu of the allotted land in Kalapathar. 15. A person may not like to occupy a certain plot of land, but that is no reason why the Administration should be directed to regularize his encroachments on a different plot of land merely because he is in possession of the land as an intruder. That will be giving too high a premium to an unauthorized occupier of a plot of land. To allow such a prayer would amount to preside over the liquidation of the settled provisions of law and the procedures to be adopted by the Administration in the matter of allotment of lands. 16. For the reasons above, I find no merit in the writ petition. The writ petition is dismissed. 17. There shall be not order as to costs. 18. Urgent certified copy of this order be supplied, if applied for, to the learned advocates for the respective parties upon compliance of usual formalities.