Abu Jafar And Ors vs Gias Uddin And Ors

[1] Heard Mr. S. Deb, leaned senior counsel assisted by Mr. B. Debnath learned counsel appearing for the petitioners as well as Mr. A. Sengupta, learned counsel appearing for the respondents No. 1 and 2. Mr. D. Bhattacharjee, learned GA appears for the respondents No. 3, 4 and 5.

[2] By means of this petition filed under Article 226, the petitioners have challenged the order dated 13.04.2018 delivered in case No.34/Appeal/Revenue/Secy/2015 [under Section 93 of the TLR & LR Act, 1960] by the Principal Secretary to the Government of Tripura, Revenue Department, the respondent No. 4 herein. It has been further urged by the petitioners that the land which has been the subject matter in the proceeding under Section 93 of the TLR & LR Act be treated as the property of Altab Ali, Samed Ali and Junab Ali i.e. the petitioners and the respondents No. 1 and 2.

[3] The petitioners have further for issuance of the writ of prohibition for restraining the respondents from acting upon the said order dated 13.04.2018 (Annexure -9 to the writ petition). The petitioners have asserted that their predecessors and the predecessor of the respondent No. 1 and 2 were full blood brothers. The petitioners and the respondents No. 1 and 2 are indisputably the descendants of Altab Ali, Samed Ali and Junab Ali. In para 3 of the writ petition, a family tree has been illustrated and the same is reproduced hereunder to glance descending order from the ancestors.

[4] The petitioners and the respondents No. 1 and 2, according to the petitioners were in joint occupation. The other descendants or the legal heirs had left the state long before and they had not met the parties in the proceedings. There had been no formal partitions of their properties. The respondent No.1 and 2 claimed to have settlement of the land measuring 1.34 acres under Tehsil Boxanagar, Mouja-Kalshimura, RS Plot No. 821 corresponding to the plot No.613/1402 under Khatian No.171/1. Having gathered the knowledge of such illegal allotment in respect of the respondents No. 1 and 2, the petitioner No. 4 namely Motahar Hossain submitted the petition on 02.02.2006 to the District Collector, West Tripura for cancellation of the said allotment.

[5] That apart, it has been urged in the said petition, filed under Section 95 of the TLR & LR Act, 1960 (Annexure-1 to the writ petition) that on cancellation of the existing allotment, the said land be allotted in the name of the persons who are in actual possession. In the said proceeding being revenue case No. 42/06 [under Section 95 of the TLR & LR Act] the District Collector, West Tripura had directed a inquiry by the Sub-Divisional Magistrate, Sonamura in respect of possession of the said land, measuring 1.34 acre under Khatian No. 978 and RS Plot No.821 under Kalshimura Mouja. That land was allotted in favour of the respondents No. 1 and 2. The Sub-Divisional Magistrate, Sonamura and after enquiry submitted his report, which was forwarded by his letter dated 10.08.2006.

[6] From the said communication, the fact that the land under reference was allotted to the respondents No. 1 and 2 get verified as by the allotment order issued under No.627/SGO/SNM/Actt dated 18.11.1998, the said land was allotted to the respondents No. 1 and 2. The physical inquiry was carried out by Deputy Collector and Magistrate, Sonamura and the report that he has submitted under No. S.1(1)/DCM/SNM/06/2017 dated 20.07.2006 is available with the writ petition as Annexure-3. The relevant part of the report is extracted hereunder:

In reference to the subject mentioned above, I am to inform you that I have perused the field enquiry report of Tehasilder, Boxanagar TK and furnishing my views as follows:-

It is clear that the disputed land in Khatian No.978, old plot No.613/1402 hal plot-821 classified as Bagar (Tilla) an area of 1.34 acre land under Kalshimura mouja has under jointly possession of petitioner father and his uncles namely 1) Sri Junab Ali, 2)Sri Chamed Ali, 3) Altab Ali and 4) Gyas Uddin and their survivals during passed the allotment order.

On field verification report it reveals that following persons are in possessor at present over the above disputed land; 1) Sri Sahajahan Miah, 2) Sri Motehar Hossain, 3) Sri Jakir Hossain, 4) Sri Mosaraf Hossain, 5) Sri Kamal Hossain, S/o Lt. Junab Ali, 6) Md. Selim 7) Sri Swapan Miah, 8) Sri Dipak Miah, 9) Sri Abu Jafar, S/o Lt. Chamed Ali, 10) Sri Nanu Miah, 11) Sri Gyas Uddin, 12) Sri Mesak Miah, 13) Sri Pera Miah, S/o Lt. Altab Ali.

Under the above circumstances, allotment order issued vide no.627/SI/SNM/Sett dated 18-11-1998 may be cancelled and names of persons as shown point-2 may be inserted and distributed in equal share in khatian No.978 Kalshimuara mouja under Boxanagar TK.

[7] Thus it is apparent that the land under reference was under co-possession of Motehar Hossain and Abu Jafar who are the successor and have been continuing in possession before the date of allotment made in favour of the respondent No. 1 and 2. The allotment was made on 18.11.1998. This court has scrutinized the field note of the Tehasildar which was considered as the basic document for purpose of the said report. The Tehasildar has stated in clear term that the said land measuring 1.34 acre were in occupation of Junab Ali, Sameb Ali, and Altab Ali. Those three brothers were occupying the said land, according to the tehasildar, for the last 200 years. Thereafter, their heirs are in possession jointly. Those three brothers are survived by 13 legal heirs. The Tehasildar in his field note dated 25.03.2006 (Annexure-4 to the writ petition) has stated that Sahajahan Miah, Motehar Hossain, Jakir Hossain, Mosaraf Hossain ana Kamal Hossain are the legal heirs of Junab Ali. Md. Selim, Swapan Miah, Dipak Miah and Abu Jafar are legal heirs of Samed Ali, and Nanu Miah, Gyas Uddin Mesak Miah and Pera Miah are the legal heirs of Altab Ali. The relevant map has been produced.

[8] By the order dated 03.11.2015, the District Collector determined the dispute by observing that the allotment order in respect of the said land measuring 1.34 acre recorded in RS Plot No.821 in Khatia No. 978 of Mouja Kalshimura under Sonamur Sub-Division made in favour of Gias Uddin and Sirin Aktar (the respondents No. 1 and 2 respectively) be cancelled. After cancellation of the said allotment order under No. 627/SNM/Sett dated 18.11.1998, the District Collector directed the parties to approach the Sub-Divisional Magistrate by submitting a fresh petition for allotment of the said land and accordingly, it was ordered. To arrive at the said decision, the Collector discussed the relevant facts. For purpose of reference, the relevant part of the said order dated 03.11.2015 is gainfully reproduced as under:

The petition was submitted to the West Tripura District because of the fact that during the period in question the present District of Sepahijala was in erstwhile West Tripura District. The Sepahijala district was curved out of West Tripura District in the year 2011. Because of this fact, District Collector, West Tripura transferred this case (No370/2005) along with other cases to Sepahijala District U/s. 95 of TLR & LR Act, 1960 for disposal.

Heard the petitioner at length. According to this statement the land allotted in favour of the 2nd party was wrongly done as the land has been under possession by the petitioner and others along with the 2nd party. He further states that he, the 2nd party and others have been possessing jote land jointly, as they are all kith and kins. To strengthen his argument, the petitioner submitted certified copy of Khatian No.171/1 recorded in Mouja Kalshimura, Teshil Boxanagar under Sonamura Revenue Circle, according to which, R.S Plot No. 721, 728, 729, 730, 731, 732, 801 and 820 for land measuring 3.45 acres in plot No.722, 723, and 821 showing the area of 3.45 acres of land in total as recorded jointly in the names of Anu Miah, Nanu Miah, Gyash Uddin, Masek Miah, Pera Miah, all S/o Altab Ali, Safikul Rahaman, Sahanuaj, Selim, Swapan Miah, Dipak Miah, Abu Jafar all S/o Chamed Ali, Ramija Khatun, W/o Chamed Ali, Sahajahan, Saha Alam, Motar Hossain, Jakir Hossain, Mosaraf Hossain, Kamal Hossain all S/o Junab Ali and Sahera Khatun, W/o Junab Ali.

Heard the 2nd party Gyash Uddin, During the course of hearing, he has stated that he has been in possession of the suit land and so he got allotment in his name and in the name of his wife. He also produced a copy of the ROR, vide Khatian No.170/1 recorded in Kalshimura Mouja under Boxanagar TK under Sonamura Revenue Circle in the name of Anu Mia, Nanu Mia, Gyash Uddin, Mashek Mia, Pera Mia all sons of Altab Ali for land measuring 6.22 acres in different plots of land. Thus, the 2nd party along with others do possess a large chunk of jote land.

Perused the inquiry report submitted by the DCM, Sonamura Revenue Circle dated 30.09.2015 forwarded by the SDM, Sonamura on 08.10.2015, according to which both the 1st part i.e. Abu Jafar and the 2nd party i.e. Gyash Uddin and his wife jointly possessed the R.S. Plot No. 821 of land measuring 1.34 acres. On scrutiny of the report submitted by Sri R. Debnath, Kanungo, Sonamura Revenue Circle, it appears that the suit land in R.S Plot No.821 of Mouja Kalshimura for land measuring 1.34 acres is full of fruit bearing trees and other valuable trees and there is no other sign of physical possession of land in question. According to him, the suit land is in the joint possession of both the 1st party and 2nd party members.

Further perused the inquiry report submitted by Sri S. Sarkar, Dy. Collector & Magistrate, Sonamura against the petition submitted by Motaher Hossain, S/o. Lt. Jonab Ali of Nagar under Boxanagar TK. The said enquiry report clearly states the following points.

(1) It is clear that the disputed land in Khatian No. 978, old Plot no.613/14 Hal Plot No.821 classified as Bagan (Tilla) an area of 1.34 acres land under Kalshimura Mouja has been jointly in possession of petitioner's father and uncles, namely, (a) Junab Ali (b) Chamed Ali, (c) Altab Ali and

(d) Gyash Uddin and their survivals during issuance of the allotment order.

(2) On field verification report it reveals that following persons are in possession at present over the above disputed land (a) Sahajahan Miah, (b) Motehar Hossain, (c) Jakir Hossain, (d) Mosaraf Hossain, (e) K. Hossain all S/o Late. Junab Ali (f) Md. Selim, (g) Swapan Miah, (h) I. Miah (i) Abu Jafar all S/o Late Chamed Ali, (j) Nanu Miah, (k) Gyash Uddin, (l) Mesak Miah, (m) Pera Mian all S/o Late Altab Ali.

In view of the above, the DCM, Sonamura suggested for cancellation of allotment order and opined for issuing allotment in favour of all the co-possessors of land. The report of the SDM, Sonamura dated 11.08.2006 vide no.F.44(3)/SDM/SNM/REV/Vol-VI/1934 reveals that the land in question is under co-possession of the petitioner Moteher Hossain and Abu Jafar as successors and thereby the allotment order issued in favour of the Gyash Uddin and others is not correct and thereby he has suggested for correcting the allotment order vide No.627/SDM/SNM/Sett dated 11.8.1998 by incorporating the names of all co-possessors as allottees or cancellation of the entire allotment order.

[9] The said order dated 03.11.2015 had been challenged by the respondents No. 1 and 2 under Section 93 of the TLR & LR Act being case No.34/Appeal/Revenue/Secy/2015. By the order dated 13.04.2018, the said appellate authority has observed as follows:

From the records and submissions, I find that the filed report dated 13.04.2017 states that the suit land of RS plot No.821, land measuring 1.34 acres recorded in Khatian no.978 is lying vacant with no constructive possession by both petitioner and the respondents by means of housing plantation or otherwise. The said land was allotted in favour of the Giasuddin & his wife Shirna Aktar vide allotment case no.627/SDO/SNM/Sett/98, dated 18/11/1998. The respondents failed to appear and produce any evident of the joint possession before allotment. On the contrary, allotment was done through due process after field verification in favour of appellants. The record has also been corrected after the said allotment. The Judgment of Hon'ble High Court in Writ Appeal No.4 of 2015 Dhaneswar Debbarma vs State makes the review of allotment time barred. There was no complaint by the respondents for such a long time after allotment. It can be presumed that the allottee may have made investments on the allotted land after allotment. Moreover, the order dated 03.11.2015 of the Ld. Collector, Sepahijala District in revenue case No.370/2005, U/s 95 of the TLR & LR Act, 1960 is found not in order as because an allotment order cannot be set aside though the provision U/s 95 of the TLR & LR Act, 1960. If at all, it should have been done U/s 14(1) of the TLR & LR Act, 1960 and TLR & LR (Allotment of Land) Rules, 1980.

[10] Having observed thus, the order dated 03.11.2015 delivered in revenue case NO. 370/315 under Section 95 of the TLR & LR Act was set aside.

The said order dated 13.04.2018 of the appellate authority (under Section 93 of the TLR & LR Act) has been challenged in this writ petition.

[11] Mr. Deb, learned senior counsel has at the outset submitted that the appellate authority under Section 93 of the TLR & LR Act had no jurisdiction to entertain an appeal under Section 93 of the TLR & LR Act against an order passed in the proceeding under Section 95 of the TLR & LR Act. But the impugned order dated 13.04.2018 has been passed by an authority not competent to examine the legality and propriety of such order. Mr. Deb, learned senior counsel has submitted that when the purported appellate authority relied on a decision in Dhaneswar Tripura vs. State of Tripura delivered in Writ Appeal 04 of 2015, the said authority did not question whether the fundamental question of the jurisdiction is required to be decided first.

[12] Mr. Deb, learned senior counsel has further submitted that an order passed under Section 95 of the TLR & LR Act is not amenable to appeal under section 93 of the TLR & LR Act and hence the impugned order dated 13.04.2018 has to be construed to have been passed without jurisdiction and the said order therefore is void ab initio. The respondents No.1 and 2 and the respondents No. 3, 4 and 5 have filed separate replies. Mr. D. Bhattacharjee learned GA appearing for the respondents No. 3, 4 & 5 has produced the proceeding records for inspection of the court. The respondents No. 1 and 2 have denied the knowledge that an inquiry was carried out by the Tehsilder under supervision of Deputy Collector and Magistrate.

[13] Mr. Sengupta, learned counsel appearing for the respondent No. 1 and 2 have contended that the respondent No. 4 did not commit any mistake holding that the review of the allotment was time barred. That apart, the revisional authority (the District Collector) had no jurisdiction to cancel the allotment in exercise of power under Section 95 of the TLR & LR Act. In this regard the appellate authority is absolutely correct.

[14] To support his contention, Mr. Sengupta, learned counsel has relied on a few decisions of the apex court. In State of Karnataka vs. Muniyalla reported in AIR 1985 SC 470, it has been observed that merely because an order is purported to be made under wrong provision of law, it does not become invalid so long as there is some other provisions of law under which the order could validly be made. Mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the authority of making it.

[15] Similar interpretation has been made by the apex court in Collector of Central Excise, Calcutta vs. Pradyumna Steel Limited reported in 2003 (9) SCC 234 where it has been held as under:

"It is settled that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalid the exercise of that power."

[16] In the other decision as relied on by Mr. Sengupta, learned counsel for the respondents No. 1 and 2 in Pruthvirajsinh Nodhubha Jadeja (D) by Lrs. Vs. Jayeshkumar Chhakaddas Shah & Ors. (judgment dated 04.10.2019 delivered in Civil Appeal No. 10521 of 2013) the apex court has restated the law as under:

"It is well settled law that mere on mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court."

[17] Mr. D. Bhattacharjee, learned GA appearing for the respondents No. 3, 4 and 5 has to lay the perspective facts and to defend the judgment dated 13.04.2018 referred to a part of the paragraph 7 of the reply filed by the respondents No. 3, 4 and 5, that part reads as under:

"It is revealed from the petition that one Abu Jafar an application under Section 95 of the TLR & LR Act, 1960 before the DM & Collector, Sepahijala District for cancellation of allotment order dated 18.11.1998 issued in favour of Gias uddin & Sirina Aktar for 1.34 acres of land under Mouja Kalshimura, CS Plot No.613/1402 corresponding to RS plot No.821 and recorded in Khatian No.978. Finally, the Learned Collector passed an order dated 03.11.2015 and cancelled the allotment order vide No.627//SDO/SNM/Sett/98, dated 18.11.1998.

After proper investigation, Ld. Secretary, Revenue dated 13.04.2018 set aside the order dated 03.11.2015 of the Learned Collector, Sepahijala due to found not in order as because an allotment order cannot be set aside through the provision of U/S 95 of the TLR & LR Act, 1960, it should have been done U/S 14(1) of the TLR & LR Act, 1960 and TLR & LR (allotment of land) Rules, 1980."

[18] The pertinent questions that arise in this writ petition are that:

(1) whether the appeal from the order under Section 95 of TLR & LR Act is maintainable under Section 93 of TLR & LR Act?

(2) whether the order cancelling the allotment can be passed under Section 95 of the TLR & LR Act.

(3) whether the respondents No. 1 and 2 had any remedy against the order dated 03.11.2015 (Annexure-6 to the writ petition).

[19] Let us consider all the questions cumulatively. Sections 95 of TLR & LR Act provides for revision. The State Government or the Collector may at any time, either on his own motion or on the application of any party, call for the records of any proceedings presided by any revenue officer, subordinate to him, for the purpose of satisfying himself as to the legality or the propriety of any order passed by such revenue officer, and may pass such order in reference thereto as he thinks fit. Provided that he shall not vary or reverse any order affecting any right between private persons without having given to the parties interested, notice to appear and be heard.

[20] The revision, no doubt, envisages general power of revising or revisiting in respect of any order passed in "any proceeding" before any revenue officer, subordinate to the revisional authority, who would exercise the power under Section 95 of the TLR and LR Act.

[21] Section 14 of the TLR & LR Act provides the power to the Collector of allotment of land belonging to the government for agricultural purpose or for purpose of constructing of dwelling houses in accordance with Law. From the records as produced by Mr. D. Bhattacharjee, learned GA, it appears that the order of allotment dated 18.11.1998 was issued by the Sub-Divisional Officer, (now the Sub-Divisional Magistrate) Sonamura, Tripura and as such the District Collector can invoke the revisional jurisdiction to examine legality or material irregularity of the said order under Section 95 of the TLR & LR Act and hence there was no defect of jurisdiction when the District Collector passed the order dated 03.11.2015 in the revenue case No.370/2005. If the respondents No. 1 and 2 felt aggrieved, they had remedy for judicial review as provided by the Constitution of India under Article 227. But the appeal under Section 93 shall not lie for the simple reason that the appeal will lie from original order passed under the TLR & LR Act.

[22] The order passed under Section 95 of the TLR & LR Act is not an original order within the meaning as provided under Section 93 of the TLR & LR Act, and as such the respondent No.4 while passing the impugned order dated 13.04.2018 did not have any authority to entertain the appeal from the order passed under Section 95 of the TLR & LR Act. Hence, the said order dated 13.04.2018 is interfered with and set aside.

[23] What this court has held in Dhaneswar Debbarma can be encapsulated as under:

"Allotment order cannot be set aside after expiry of reasonable period. What is reasonable period may depend on the facts of a particular case but normally reasonable period will not exceed three years at most."

[24] The said observation is to be read with Section 95 in a harmonious manner so that the provisions of Sections 95 do not turn inoperative. TLR & LR Act being an Act listed under the 9th Schedule of the Constitution of India (vide entry No. 64 of the said Schedule). Thus, the said restriction cannot, as envisaged, brought and accommodated generally within the ambit of Section 95 of TLR & LR Act and as such the State Government or the Collector may "at any time" call for records and satisfying himself as to legality or propriety of any order passed by such revenue officer and may pass such order in reference thereto he thinks fit, subject to representation of the parties particularly the party who might be effected by such order.

[25] Article 31(b) of the Constitution of India provides that without prejudice to the generality of the provisions contained in the Article 31 (a) none of the Acts and Regulations specified in the 9th Schedule nor any of the provisions thereof shall be deemed to be void or even to have become void on the ground without such Act, Regulations or Provisions being inconsistent with or taking away or abridging any of the rights conferred by an provision of that Part (Part-III) and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

[26] In view of this, the decision rendered in Dhaneshwar Debbarma (supra) has not imposed a strict or blanket restriction. Hence, on that ground, the order passed under Section 95 of the TLR & LR Act cannot be held without jurisdiction or hit by the restrictions as imposed by the said judgment. Moreover, this court has observed that the decisions as relied by Mr. Sengupta, learned counsel appearing for the respondents No. 1 and 2 do not create such space for debate. Such law is well entrenched. But there is no mechanical application when it deals with the question of jurisdiction. First of all, the court must have the jurisdiction to exercise such power. Any order passed by such court or forum cannot be declared valid for mentioning the wrong provision of law. If the power exercised is available to it under the different provisions and mere mentioning of an incorrect provision is not fatal to the exercise of power, if the power to pass such an order is available with the court. In simple words, if the court had the jurisdiction and power to pass such order, merely for mentioning such incorrect provision, the order will not be rendered invalid. But what this court has noticed is that the respondent No.4 had no jurisdiction or power to exercise against the order dated 03.11.2015 (Annexure-6 to the writ petition) and hence the impugned order cannot sustain the test of validity for the reason that has been passed by an authority which has not been conferred with the jurisdiction to deal with such order and as such the said order dated 13.04.2018 (Annexure-9 to the writ petition) stands quashed and set aside having been passed by an authority denuded of jurisdiction. Notwithstanding the effect of the order, the respondents No. 1 and 2 may approach for judicial review, if they are so advised.

In the result, the writ petition stands allowed.

There shall be no order as to costs.

The records as produced under File No.S(13)DM/SPJ/Rev/Vol-II/2013-14 be returned to Mr. Bhattacharjee, learned GA under a sealed cover.