Likmabam Thambal Yaima Devi and Others vs Ph. Munindra Sharma and Others

N.G. Das, J.—The facts giving rise to this application under Articles 226 and 227 of the Constitution of India are that Late Kunja Behari Singh husband of the present Petitioner was in occupation of a plot of land measuring 22 x 10 situated on the eastern bank of the Nambal River, Imphal by erecting a katcha shed thereon and he was also carrying on some business of cane products in that shed for about 30 years. However, after reclamation of the land Kunja Behari Singh applied for its allotment but no order of allotment was passed during his life time. The Petitioner was however continuing the same business on the aforesaid land which was during last survey settlement operation, posted under C.S. Plot No. 3206 of Municipal sheet No. 17. Since selling of bamboo and cane products is the only source of the livelihood of the Petitioner and her family, ''the Petitioner after the death of her husband approached the authority for allotment of the land in her favour. But she got no favourable response until 16.7.1979 when Sub-Divisional Officer, Imphal West recommended her case for allotment of the aforesaid piece of land in her favour (Annexure-4). The Petitioner was, therefore, in expectation of getting the order of allotment. But while she was eagerly waiting for order of allotment she was suddenly served with a summons in connection with an eviction proceeding Case bearing No. 3/1979 and subsequent to that she to her utter surprise came to know that the aforesaid land had already been allotted to Shri Ph. Mumndra Sharma the Respondent No. 1.

On further enquiry the Petitioner came to know that Deputy Commissioner (Central), Manipur by his order No. DC (C)/8/1108/Rev. dated 16.5.1979 passed the order of allotment in respect of the aforesaid land in favour of Respondent No. 1 On coming to know this the Petitioner submitted a representation to the Hon''ble Minister, Finance and Revenue for re-considering the matter and staying the eviction proceeding until finalisation of the allotment matter, On the basis of the said application the Revenue Department vide its letter dated 2.7.1979 called a report from the Deputy Commissioner (Central), Manipur, But no action thereon was taken. So, the Petitioner filed a revision petition against the order of allotment contained in Annexure-A/8 before the Revenue Tribunal, who however, dismissed the revision petition on the ground, inter alia, that he had no jurisdiction to interfere with the matter. Soon after the order of Revenue Tribunal, the Sub-Deputy Collector (Central) Imphal West again passed an order directing the Petitioner to vacate the aforesaid plot of land and also published the order in a local Daily Paper named ''Ching Tam'' for information and necessary action.

The further case of the Petitioner is that the father of Respondent No. 1 being a U.D. Assistant in the Secretariat of the Finance Department, Government of Manipur he got this order of allotment in a clandestine manner without even filing any application for allotment of this land. It was, therefore, alleged that the orders contained in Annexure-A/8 and Annexure-A/10 are malafide and similarly the order contained in Annexure-A/9 is equally bad in law and not sustainable. It was further alleged that both the orders contained in Annexure-A/8 and A/10 are outside the purview of Manipur Land Revenue and Land Reforms Act, 1960.

It is also averred that as per Rule 9 of the Manipur Land Revenue and Land Reforms (Allotment) Rules, 1962 (hereinafter referred to as the Rule) if there are more than two applications for a particular piece of land the allotment has to be made by a lot in favour of the winner. So, the orders contained in Annexure-A/8 and A/10 alloting the aforesaid land in favour of the Respondent No. 1 are violative of the Section 14 of the Manipur Land Revenue and Land Reforms Act and the Statutory Rules.

The Respondent No. 1 denied the material averments of the petition by filing counter affidavit and contended further that the statement that the Petitioner was in occupation of the land in question over 30 years nothing but a myth as at the time of filing this wit petition she was only 40 years of age. It has been averred that Respondent No. 1 being a businessman he applied for allotment of the land bearing C.S. Plot No. 3206 of the Sheet No. 17 of the Municipality for the purpose of running a business and in pursuance of that application the State Govt. allotted the aforesaid land appertaining to CS Plot No. 32016 of Sheet No. 17 by order dated 24.4.1979 (Annexure-B-1). It is denied that R-1 got the allotment order by undue influence. In pursuance of the order of allotment contained in Annexure B-1, the Deputy Commissioner issued order No. DC (C)/8/1105/Rev., dated 16th of May, 1979(Annexure B/2) and as per that order he also paid a premium of Rs. 1,1,83/-on 21.5.79 in respect of the aforesaid land. It is also stated; that, the Deputy Commissioner (Central) executed necessary Deed, of allotment, on 21.5.79 and although the answering Respondent, paid the premium the Deputy Commissioner did not deliver, possession of the land.

The further contention of the Respondent No. 1 is that the Petitioner filed original Suit No. (T)9/1980 in the court of Munsiff, Imphal for declaration of title and confirmation of possession in respect of the aforesaid land against the State Government and Respondent No. 3 challenging the order of allotment. But the suit was dismissed on 5.2.1981 for default. So under no circumstances the Petitioner has any locus to file the petition and hence it should be rejected.

The Respondents No. 2, 3 and 5 also filed a joint counter affidavit Wherein it was denied that Petitioner was in occupation of the land in question for over 30 years and she was carrying on some business thereon. It is however admitted that S.D.O. Imphal vide his letter No. 62/SDO/IW/Sett-NYS/79/l139, dated 16.7.79 initiated a proposal recommending for allotment of the land in favour of the Petitioner, But before receipt of this recommendation from S.D.O, the land was allotted in favour of the Respondent No. 1 in consideration of his prayer which was received on 1978 and that the application of the Petitioner for allotment of the land was received before this recommendation. It has however been admitted that during enquiry it was found that the Petitioner was in occupation of the land in question for over 15 years, But as her such occupation was unauthorised she was rightly evicted therefrom. The land in question being allotted in favour of Respondent No. 1, the Deputy Commissioner had to exceute the Deed of allotment and he is also required to deliver possession of the land in favour of Respondent No. 1 by evicting the Petitioner. The Petitioner was accordingly served with the summons at Annexure-A/5.

It is further averred that the proposal for allotment of the land in question in favour of Respondent was received from the S.D.O. Imphal West as early as in the year 1978 under letter No. 92/SDO/IW/Sett. TOMDRO/78/1259 dtd. 18.12.1978 and thereafter the Government accorded sanction for allotment of this land in favour of Respondent No. 1 under order No. 23.6.78 dtd. 24.4.79. Accordingly, Deputy Commissioner vide his order dtd. 16.5.79 contained in Annexure-8 aliened to the land in favour of Respondent No. 1. So there is nothing wrong or malafide in the matter of allotment in favour of the Respondent No. 1 as alleged by the Petitioner. It is also contended that Rule 13(1) of Manipur Land Revenue etc. (Allotment of Land) Rules, 1962 (for short Rules) provides that no town land shall be allotted without the prior sanction of the Government. So, the order contained in Annexure A/8 was issued after obtaining prior sanction of the Government and as such the order of allotment is a valid one. It is further contended that Rule 9 of the Rules does not apply to the allotment of the land in question. This Rule is only applicable for allot merit of the Agricultural land. It is therefore stated that the land in question was allotted in favour of the Respondent No. 1 as per Rules. So, the petition is devoid of any merit.

So the question which arises for consideration is whether the Deputy Commissioner can allot any land in favour of any person u/s 14 (2) of the Manipur Land Revenue and Land Reforms Act, 1960 (hereinafter referred to as the Act) for the purpose of business where the Governor has been pleased to accord sanction for such allotment.

Mr. Priyananda, the learned Counsel for the Petitioner has submitted that the Deputy Commissioner has transgressed his powers by allotting the land in question u/s 14(2) of the Act. According to him a bare perusal of the Section 14 of the Act will make it abundantly clear that the Deputy Commissioner is empowered to allot land for Agricultural purpose or for construction of dwelling house u/s 14(1) of the Act.

To appreciate the legal position it is desireable to reproduce the section 14 of the Act which reads as under:

14, Allotment of land (1) The Collector may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rule as may be made in this behalf under this Act, and such rules may provide for allotment of land to persons evicted u/s 15.

(2) The Administrator shall have power for purpose of public utility on such conditions as may be prescribed, or

(b) to entrust the management of any such land of any rights therein to the Gram Panchayat of the Village established under any law for the time being in force.

On a plain reading of the section quoted above, it will be seen that the powers of the Deputy Commissioner in the matter of allotment are very much limited and circumscribed. It is clear from the above quoted provisions that section 14(1) of the Act has empowered the Deputy Commissioner to allot lands belonging to the Government for agricultural purposes or for construction of dwelling house in accordance with such rules as may be made in this behalf under this Act and: such rules may provide for allotment of land to persons evicted u/s 15. But Section 14(2) of the Act envisages that State Government can allot land belonging to the Govt. for any industry or for any purpose of public utility. It would, therefore, be quite apparent, from provision quoted above, that section 14 has authorised 2 authorities to make allotment of land belonging to the Government. According to Section 14(1) of the Act it is the Deputy Commissioner who is authorised to allot land and according to Sub-section 2 it is the Government who is authorised to allot land.

Admittedly, the land in question is situated within the town of Imphal. Rule 13 of the Manipur Land Revenue etc. (Allotment of Land) Rules, 1962 (hereinafter referred to as the Rules) envisages that no town land shall be allotted without the prior sanction of the Administrator.

It is clear from the above Rule that in case of allotment of town land the Deputy Commissioner is required to take prior sanction of the Government for allotment of land in favour of any one, Rule 7 of rules envisages as under:

Order of preference for allotment of land for construction of dwelling house. In allotting land for construction of a dwelling house, the Deputy Commissioner shall follow the following order of preference, namely.

(i) a landless agricultural worker or an artisan, not owning any house or site for a house; and

(ii) any other person not owning any house or site for a house and who intends to build the house for personal inhabitation.

So, all these provisions make it clear that the Deputy Commissioner while allotting any land under the provision of Section 14(1) of the Act shall have to take sanction of the Government at first and thereafter consider the case of a particular person in the light of the provisions of Rule 7 which deals with the order of preference for allotment of land for construction of dwelling house. It is very much clear from alt these provisions that the power of the Deputy Commissioner to allot land are for two purposes (i) for agricultural purposes and (ii) for construction of dwelling houses and that he can allot the land only u/s 14(1) of the Act.

But Mr. Shyam Kishore Singh, learned Government Advocate assisted by learned Counsel Mr. T. Nanda Kumar has argued that in the instant case the land in question has actually been allotted by an order dated 24th April, 1979 contained in Annexure A/10. To appreciate the contention of learned Govt. Advocate it is necessary to reproduce the Annexure-A/10.

Government of Manipur Secretariat

Revenue Department.

Order by the Governor : Manipur

Imphal, the 24th April, 1979.

No. 23/6/78-R;

In exercise u/s 14(2) of the Manipur Land Revenue and Land Reforms Act, 1969 the Governor of Manipur is pleased to accord sanction to the allotment of land measuring 10 x 20 ft. under CS Dag 3206 of Sheet No. 17 Imphal Municipality in favour of Shri Ph. Munindra Sharma of Keisampat Thuksom Leikai, Imphal as described in Schedule given below.

A plain reading of this order clearly shows that it is nothing but the approval of the Government for allotment of the and According to Mr. Shyam Kishore Annexure-A/8 dated 16.5.79 is nothing but the communication of the order of allotment by the Deputy Commissioner. I am, however, unable to accept this contention of Mr. Shyam Kishore as it has been quite specifically stated in paragraph 7 of the counter affidavit filed by Respondents 2, 3 and 5 that the statement that. Deputy Commissioner (Central) Manipur issued allotment order dtd. 16.5.79 Annexure-A/8 in favour of the Respondent No. 1 in respect of the said piece of land is substantially correct. In paragraph 12 of the counter affidavit, it has again been stated that government accorded sanction to the allotment on 24.4.79 which relates to Annexure-A/10 order. So, in face of clear statement in the counter affidavit it is not possible to accept the contention of Mr. Shyam Kishore that the Government allotted the land in question in favour of the Respondent No. 1 by order Annexure-A/10.

Rule 13(1) requires that a proposal has to be sent to the government for obtaining sanction. But in the instant case, there is nothing on record to show that the Deputy Commissioner wrote any letter to the government for obtaining necessary sanction in respect of the aforesaid land. Even if, it is accepted that the Deputy Commissioner wrote letter to the government for obtaining sanction, yet the contention is not acceptable because we cannot alter me legal position. The power conferred to the Deputy Commissioner in this regard is a limited power as stated earlier. The fact that the government is prepared to bless a particular person does not change the nature of the power. Rule 6 of the rules provides that in the case of allotment for agricultural purposes, the preference will be given to the person who has been evicted u/s 15 of the Act. Again it is ingrained in Rule 7 that in allotting land for construction of a dwelling house the Deputy Commissioner shall give preference to a person not owning any house or site for a house, who intends to build the house for personal habitation. In the instant case, it is an admitted fact that the Petitioner has no other land excepting the land in question. It is also an admitted fact that the Petitioner is in occupation of this land after reclamation for over 15 years. But there is nothing on record to show that Respondent is a landless person.

Mr. T. Nandakumar, learned Counsel for Respondent No. 1 has, however, argued that the order of allotment cannot be regarded to be a bad or illegal one simply because, the Deputy Commissioner has quoted wrong provision. It is submitted by Mr. Nandakumar that what is required to be seen is whether the Deputy Commissioner has power to allot land and since he has power to allot land u/s 14(1) of the Act such order cannot be regarded to be bad in law. In support of his contention he has referred to a decision rendered in the case of Amritsor Improvement Trust v. Baldev Inder Singh and S. Baldev Singh Inder Singh and Ors. Respondents reported in AIR 1972 1 SCC where the decision in the case of Hukumchand v. State of Maharashtra reported in Vol. 52 ITR 583 was referred. In Hukumchand Mill Case it was held that wrong reference to the power in which the action was taken by the Government would not (sic) that action if it could be justified under some other power under which the government could lawfully do that act. There is no dispute that if an authority has a valid power to do a particular act, the fact that it purported to do that let under a provision of law which did not confer power to do that act would not invalidate the Act. But this decision is not acceptable to the facts of the present case. If we carefully go through the Annexure order A/8 it will be found that the land was allotted in favour of the Respondent No. 1 for the purpose of business. On the other hand Annexure B/4 Deed of Allotment which was filed by Respondent No. 1 will show that the Deputy Commissioner executed the Deed of Allotment in favour of the Respondent No. 1 to erect a building thereon to be used for residential purpose. This Annexure B4 further shows that the Deputy Commissioner was pleased to accord to allot land in favour of the Respondent No. 1 So, if the recitals of the documents contained in Annexure B/4 and Annexure A/10 are carefully examined then it will appear that purposes mentioned in Annexure A/10 is very much contradicted by the purposes mentioned in Annexure B-4.

In this regard Mr. Nanda Kumar also placed reliance to a decision rendered in Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, But I have already stated earlier that this is not a case that a wrong provision was quoted.

It is next argued by Mr. T. Nanda Kumar learned Counsel appearing for the Respondent No. 1 that the validity of an order should be judged on consideration of substance and not in form. In support of his contention no has referred to a decision rendered in the case of P. Balakotaiah Vs. The Union of India (UOI) and Others, But it has already been stated earlier that there is no dispute that if an authority has a valid power to do a particular act the fact that it purported to do that act, under a provision of law which did not confer power to do that act would not invalidate the Act. But this proposition is not applicable in the present case because it is not the contention of the Respondent No. 1 that the allotment order was issued u/s 14(1) of the Act. Mr. T. Nanda Kumar has argued that it is the Annexure-A/10 which is the order of allotment. But in view of my discussion made earlier, I am unable to hold that Annexure-A/10 which is nothing bull an approval of the government can be treated as an order of allotment.

It is argued by Mr. Priyanand, the learned Counsel for the Petitioner that it has been specifically contended by the Petitioner that the Respondent did not file any application for allotment of this land. But inspite of this specific averment neither the Respondent No. 1 nor the other Respondents have filed the petition of the Respondent No. 1 to show that Respondent No. 1 actually filed an application before the application of the Petitioner for allotment of the land in question. It is true that neither Respondent No. 1 nor the order Respondents filed the application of the Respondent No. 1 to show that his application was actually received prior to the receipt of the application of the Petitioner. It is not understandable to me why the learned Govt. Advocate did not present the relevant file before this Court to enable this Court to understand to whom the Respondent No. 1 actually filed the application and for what purpose.

The last point argued by the learned Counsel for the Respondents is that the Petitioner filed a suit in the court of Munsiff No. 1, Imphal for declaration of title and confirmation of possession in respect of the suit land and that suit was dismissed for default on 5.2.81. It has therefore been contended on behalf of the Respondents that in view of this fact that a Civil Suit was dismissed for default, the present writ petition is not maintainable. But the Respondents have neither filed the copy of the plaint nor filed the order whereby the learned Munsiff dismissed that suit. The legal position is that onus lies on a party relying on a earlier order operating as resjudicata to establish that the matter in issue in the present writ petition has already been decided finally between the same parties by a court of competent jurisdiction. So, in absence of any proof in this regard it is difficult to make a finding that the matter was heard and finally decided in the former suit.

Mr. Priyananda, the learned Counsel for the Petitioner has argued that the Petitioner''s case is to be considered in preference to the Respondent No. 1 as the Petitioner has no land other than the land in question which she has been occupying for a pretty long time. It is also submitted that there is nothing on record to show that Respondent No. 1 is a landless person.

So, in view of the facts and circumstances particularly the infirmities found in the order of allotment, I am constrained to hold that the order of allotment, containing Annexure-A/8 is bad in law. Both the orders viz Annexure-A-8 and Annexure A/10 are accordingly set aside and the matter is remitted to the government for re-consideration. Until the matter is finally disposed of by the government status quo in respect of the land in question shall be maintained.

With the above direction and observation the writ petition is allowed. Under the circumstances I pass no order as to cost.