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Judgment
[1] Petitioner has challenged an order dated 07.06.2017 passed by the Collector, North Tripura, Dharmanagar which arose in following factual background.
[2] Predecessors-in-title of the petitioner were allotted land admeasuring 1.12 acres of land of Mouja-Bagbasa, Tehsil-Sanichhera Revenue Circle-Dharmanagar in the year 1976. According to the petitioner, sometime in January, 2012 the respondent No.4 tried to encroach upon 0.30 acres out of the said land. The petitioner thereupon filed Civil Suit No. T.S. 05 of 2012 on or around 08.01.2012. Pending such suit the petitioner had claimed interim injunction against dispossession.
[3] On 27.02.2012 the respondent No.4 herein filed an application under Section 95 of the Tripura Land Revenue and Land Reforms Act, 1960 (TLR & LR Act, 1960 for short) and requested for correction of the record of rights in Khatian No.284 concerning his Plot No.630 by incorporating land admeasuring 0.30 acres as part of his land. In this application he had contended that his grandfather under a registered sale deed dated 20.02.1951 had purchased the entire land from the erstwhile owner for a sale consideration of Rs.2,000/-. Thereafter, 0.30 acres out of his land forming northern side was declared as khas land, however, continuously and presently also the petitioner and his family members were in possession of the entire plot including the said land admeasuring 0.30 acres. They are owners and in actual possession of the land.
[4] The petitioner was served with a notice of the said proceedings instituted by the respondent No.4. The petitioner applied for adjournments on the ground that his civil suit was pending and pending such suit revenue authority should not proceed further. After granting few adjournments, the Collector rejected further prayer for adjournment and proceeded to decide the application of the respondent No.4 by an order dated 07.06.2017. Prior to issuance of notice to the petitioner, the Collector had called for report of the field survey officer which was submitted on 06.07.2012. As per this report, the disputed land of 0.30 acres was surrounded by road on northern side on south and west side. It was adjoining to the land of the respondent No.4 and his family and the eastern side it touched remaining portion of 0.82 acres of land allotted to the petitioner by the Government. This report also suggested that on the disputed land the respondent No.4 was in possession and the land occupied contained some bamboo bushes, one agar plant and one chymal tree. The possession of the respondent No.4 was shown to be more than 50 years old.
[5] The Collector heavily relied on this report in his order dated 07.06.2017. He first noted that several adjournments were granted to the petitioner. On the basis of the report, he came to the conclusion that the petitioner was in possession only of 0.80 acres of land out of originally allotted 1.12 acres to him. The remaining area of 0.30 acres was in possession of respondent No.4. He, therefore, provided as under :
"Now being satisfied that the allotttee (in this case O.P) is not in possession over 0.30 acres of land and since the conditions for allotment under clause 4 and clause 9(a) has been violated.
It is hereby ordered that a land area not exceeding 0.30 acres of land in plot no.630/p which was allotted to the O.P is hereby cancelled. The land area measuring 0.30 acres in hal plot no.630/p will be restored as khas land and the applicant will apply afresh for allotment as per provision of Land Allotment of Land Rules 1980."
[6] This order the petitioner has challenged. Mr. S. Lodh, learned counsel for the petitioner submitted that the application of the respondent No.4 was only for making correction in the record of rights. The Collector could not have cancelled the allotment made in favour of the petitioner. No opportunity of hearing was granted to the petitioner before allotment was cancelled. In any case, the Collector should have waited for disposal of the civil suit. Pending civil proceedings the revenue authority could not have proceeded to decide the application of the respondent No.4. He relied on certain decisions.
[7] On the other hand, Mr. D. Sarkar, learned counsel for the respondent No.4 opposed the petition contending that against the order passed by the Collector statutory remedy before the Secretary Revenue is available. The petitioner is not availed of this remedy. Even otherwise issues are of disputed questions which High Court would not decide in a writ petition. Mr. D. Sharma, learned Additional Government Advocate also opposed the petition.
[8] Before proceeding to decide the correctness of the order passed by the Collector, it may be recorded that the civil suit filed by the petitioner was ultimately decided against him. The suit has been dismissed. There is no further progress against the judgment of the trial Court. It may also be noted that against the order passed by the trial Court refusing to grant interim injunction pending the suit, the petitioner had first filed appeal from order before the District Court and thereafter a revision petition before this Court which was dismissed on 09.01.2014.
[9] Despite these reversals before the civil court, I do not think that the order passed by the Collector can be sustained in law. Whatever the nature of allotment to the petitioner and whatever the dispute about a part of the land purchased by the respondent No.4 forming part of khas land which in turn was allotted to the petitioner, the question is could such allotment have been cancelled in the manner it was done. The reason why I must answer the question in the negative is that the Collector did not follow proper procedure before cancelling the allotment in favour of the petitioner.
[10] To elaborate this point, one may recall, the respondent No.4 had filed an application for correction of a Khatian which would entail merely correcting a revenue entry. He did contend that the allotment of 0.30 acres of land in favour of the predecessors-in-title of the petitioner should be cancelled, however, his ground was very different from one on which the Collector eventually cancelled the grant. According to respondent No.4 who was the applicant before the Collector, 0.30 acres of his land got wrongly declared as a khas land and therefore formed part of the allotment order. The Collector did not carry out any inquiry with respect to this aspect of the matter. It is not the finding of the Collector that the disputed land was the one actually purchased by respondent No.4. It is not his finding that the said land was wrongly treated as a khas land. His finding however is based on the field survey report suggesting that the respondent No.4 was in possession of the land and there were a few straight trees standing on such land. He thereupon invoked Clauses 4 and 9(a) of Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1980. Rule 4 empowers the Collector to cancel land if within stipulated time land allotted for the purpose of agricultural is not used for such purpose. Rule 9(a) would empower the Collector to cancel the allotment if the land is allotted for any other purpose and not utilized for such purpose within two years. The Collector without putting the petitioner to notice on his inability to utilize the allotted land for agricultural proceeded to cancel the allotment which was in breach of principles of natural justice. That being the position, the availability of alternative remedy would not persuade me to relegate the petitioner to such alternative remedy. However, I cannot accept the contention of the counsel for the petitioner that since at the relevant time civil suit was pending the Collector was powerless to proceed to the application of the respondent No.4. The application of the respondent No.4 was for the purpose of declaration that land purchased by his predecessor was wrongly declared as a khas land, and therefore wrongly allotted to the predecessors-in-title of the petitioner and to correct the revenue entries after cancellation of allotment to the extent of such land. This had nothing to do with the petitioner's suit for protecting his possession which in any case initially at the interim stage and eventually while the suit was disposed of, he failed in doing.
[11] In the result, impugned order dated 07.06.2017 passed by the Collector, North Tripura is set aside. The proceedings arising out of the application of the respondent No.4 dated 27.02.2012 is revived and placed back to the Collector for passing fresh order in accordance with law. If the Collector is of the prima facie opinion that for any of the breach of conditions of the allotment the allotment is liable to be cancelled, it would also be open for him to institute suo motu proceedings for such purpose.
[12] Petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.