Samir Ranjan Barman and Another vs District Magistrate and Collector and Others

M.C. Pathak, C.J.—In this application under Article 226/227 of the Constitution of India, the Petitioners'' case briefly is as follows:

Petitioner No. 1 is Samir Ranjan Barman (hereinafter referred to as Samir Barman) and Petitioner No. 2 is Smt. Maya Barman, wife of Samir Barman.

One Ashit Chandra Bhattacharjee (hereinafter referred to as Ashit Bhattacharjee) was the duly recorded owner of about 0.306 acres of land with structures thereon at No. 38, Akhaura Road, Agartala town. The name of said Ashit Bhattacharjee was recorded as a raiyat in the Record of Rights being Town Sheet No. 6, C.S. Khatian No. 1861, Dag No. 4867. Out of the said land covered by Dag No. 4867 of Khatian No. 1861, Ashit Bhattacharjee by a registered deed of sale dated 8th November, 1968 transferred a parcel of land measuring about 9 Gondas 2 Karas 7 Dhurs with certain structures thereon for a consideration of Rs. 27,000/- in favour of Samir Barman (Petitioner No. 1) and the purchaser was put in possession thereof. The said Ashit Bhattacharjee by several other registered deeds of sale sold the balance of his land at No. 38, Akhaura Road, Agartala to Anil Baran Paul, Bimal Kanti Paul, Smt. Himanshu Bala Paul and Rabin Sengupta.

After the said purchase of the land in question by Samir Barman, his name was mutated and entered in the Records of Rights as finally published and also in the records of the municipal authorities of Agartala. Samir Barman had been all along paying land revenue and municipal taxes in respect of the said land and structures. Ashit Bhattacharjee having thus transferred his properties left Agartala and settled in West Bengal and he is now residing at Birati, District 24 Parganas, State of West Bengal. According to the Petitioners'' information on enquiry Ashit Bhattacharjee was a freedom fighter and received pension from the State of Tripura and is now receiving pension from the State of West Bengal and four sons of Ashit Bhattacharjee are still living and residing with their father. After having purchased the said land and structures Samir Barman applied to the Government of Tripura (Respondent No. 6) for grant of a loan under Middle Income Group Housing Scheme. After enquiry and being satisfied with the title of Samir Barman with respect to the said land and structures, the State Government of Tripura granted a loan of Rs. 25,000/- to Samir Barman under the said Scheme and Samir Barman, secure the said loan, mortgaged a part of the said land in favour of the State Government and the said mortgage is still subsisting. Thereafter Samir Barman, prior to August 3, 1974 constructed some buildings and structures on the land. He constructed one two-storeyed R.C.C. building and the ground floor of that building has been rented out. The Petitioners also constructed three huts where he resided with his wife (Petitioner No. 2) and their children. At all material times since the purchase of the said land and structures Samir Barmaahad been in possession, use and enjoyment of the said land and structures thereon without interruption from any quarter including Respondent No. 6 Samir Barman rented out a portion of the ground floor to Jam Air Company Ltd. at a rental of Rs. 380/-per month and Anr. part to Prafulla Kumar Mukherjee, Proprietor of Tripura Traders at a rental of Rs. 200/- per month and this fact was known to the Respondents at all material times.

Shri C.S. Samal, Joint Secretary, Revenue Department, Government of Tripura (Respondent No. 4) filed an application dated August 23,1974, u/s 11(3) of the Tripura Land Revenue and Reforms Act, 1960 (Act No. 43 of 1960) (hereinafter referred to as the Act) before the District Magistrate and Collector, West Tripura, praying for an order u/s 11(3) of the Act. In respect of Debottar properties mentioned in the said petition. The petition has been numbered as Misc. Case No. 51/West/74 and in the said Misc. Case the State of Tripura was shown as the Petitioner and the following persons were shown as opposite parties:

(1) Samir Barman

(2) Anil Baran Paul (3) Bimal Kanti Paul

(4) Smt. Himangshu Bala Paul, and

(5) Rabin Sengupta

The Debottor properties described in the petition are as below:

Debottar properties appertaining originally to Takhshi Taluk No. 79 and at present to Khatian Nos. 1861, 1862, 14248, 14236 and plots No. 4867, 4869, 4867/33528, 4867/33519 respectively within Agartala Town Sheet No. 6, total area being 0.321 equivalent to 16 Gondas 2 Krantis and 4 dhurs.

In Misc. Case No. 51/West/74 District Magistrate and Collector West Tripura (Respondent No. 1) issued a notice dated September 2, 1974 directing Samir Barman to appear on September 7, 1974 at 11 A.M. along with the documents, if any, for hearing of the said case. On the application of Samir Barman, the said Misc. Case No. 51/West/74 was transferred from the Court of the District Magistrate and Collector, West Tripura, Agartala to the Court of the Additional District Magistrate and Collector, West Tripura, Agartala (Respondent No. 2). On June, 11, 1975 Samir Barman filed an objection petition in the said case. The other opposite parties in Misc. Case No. 51/West/74 also filed a joint objection petition. Thus all the opposite parties in Misc. Case No. 51/West/74 contested the case.

On June 28, 1975 Petitioner Samir Barman was detained under the Maintenance of Internal Security Act, 1971. Samir Barman while in detention applied several times to Respondent No. 2 Additional District Magistrate and Collector, West Tripura, for calling for certain documents and issuing summonses to certain witnesses as mentioned in the petition in connection with Misc. Case No. 51/West/74. But Respondent No. 2 by different orders refused to issue summons for production of the said documents and attendance of the said witnesses. It has also been alleged in the petition that the lawyer of the Petitioner was not allowed to interview Samir Barman in Jail for receiving instructions for the purpose of the case and he could not defend his case properly inasmuch as he alone was aware of the facts and circumstances of the case and his prayer for adjournment of the case till his release from detention was also rejected.

By order dated August 14, 1975 in Misc. Case No. 51/West/74 Respondent No. 2 held that the conveyance of the land in question to Samir Barman was void abinitio and ordered that the Records of Rights should be corrected in favour of Respondent No. 6 as the land in question was vested in it. A copy of the order dated 14.8.76 is at Annexure-12 of the petition. The Petitioners have alleged that the said order dated August 14, 1975 was illegal and without jurisdiction on various grounds.

While in detention Samir Barman by a petition dated August 14, 1975 applied to Respondent No. 2 for stay of the operation of the said order dated August 14, 1975 for three months as notice u/s 80, Code of Civil Procedure, would be necessary to be served for filing the suit. But Respondent No. 2 granted stay order only for three weeks. A notice dated 29th August, 1975 u/s 80, Code of Civil Procedure, was issued to Respondent No. 6 and Ors. for instituting a civil suit in the matter. On September 2, 1975 Anr. application was filed on behalf of Samir Barman before Respondent No. 2 praying for further stay of the operation of the impugned order dated August 14, 1975, stating that the notice u/s 80, Code of Civil Procedure, was necessary and that the period requisite for such notice had not expired. But Respondent No. 2 by order dated September 5, 1975 refused to grant stay. Respondent No. 2 was fully aware that to institute a suit against the Government and its officers, a notice u/s 80, Code of Civil Procedure, was essential but still he refused to stay the operation of the impugned order dated August 14, 1975, giving sufficient time for service of the notice u/s 80, Code Civil Procedure. Having been put in such predicament, Samir Barman before the expiry of the statutory period of notice u/s 80, Code of Civil Procedure, instituted a Title Suit being Title Suit No. 21 of 1975 on 30.9.75 in the Court of the Subordinate Judge, Tripura at Agartala, for a declaration, inter alia, that Samir Barman was the owner of the said land and structures in raiyati right and for recording the name of Samir Barman in C.S. Khatian in raiyati right and that the Respondent No. 6 State of Tripura had no authority to evict Samir Barman from the land in question on the basis of the impugned order dated August 14, 1975 and also for a declaration that the impugned order dated August 14, 1975 was void ab-initio. Along with the plaint an application under Order 39, Rules 1 and 2 CPC and u/s 151, Code of Civil Procedure, was also filed for temporary injunction against the Defendants restraining them from interfering with the possession of the Plaintiff in the land in the Schedule of the plaint, till the disposal of the suit. The Defendants impleaded in the said suit are as below:

(1) State of Tripura

(2) District Magistrate and Collector, West Tripura, Agartala

(3) Sri C.S. Samal, Joint Secretary, Revenue, Government of Tripura, Agartala.

On the application for injunction the learned Subordinate Judge issued show cause notice upon the Defendants and by order dated 30.9.75 restrained the Defendants from interfering with the possession of the said land and buildings of Petitioner Samir Barman. This order restraining the Defendants was served on the Defendants on 3.10.75. Notwithstanding the said injunction order dated September 30, 1975 passed in Title Suit No. 21/75 served on the Defendants on 3.10.75, Respondent No. 3 Sub-Divisional Officer, Sadar, Agartala, West Tripura, at the instance of the other Respondents including Respondent No. 1 District Magistrate and Collector, West Tripura, initiated a proceeding u/s 15 of the Tripura Land Revenue and Land Reforms Act, 1960 against Smt. Maya Barman (Petitioner No. 2), Prashanta Kumar Mukherjee, Manager, Jam Air Co. Ltd. and Profulla Kumar Mukherjee, Proprietor of Tripura Traders, Agartala. By order dated 6.10.75. The proceeding u/s 15 of the Act is numbered as Case No. 33/75 (Eviction). The order dated 6.10.75 is as follows:

Whereas it appears that (1) Smt. Maya Barman W/O. Sri Samir Ranjan Barman of Agartala, (2) Shri Prashanta Mukherjee, Manager, Jam Air Co. Ltd., Agartala, (3) Shri Prafulla Kumar Mukherjee, Proprietor, Tripura Traders, Agartala have been in un-authorised occupation of C.S. Plot No. 4867, Khatian No. 1861 (Iza No. 1 Khatian) area measuring 189 acres and, whereas it appears from D.M. & Collector''s (West) letter No. F.15 (4)/DM/RBV/4258 dated 6.10.75 that the vacant possession of the land is to be taken over after evicting the un-authorised occupants immediately, so,

Draw up proceeding u/s 15 of T.L.R. & L.R. Act, 1960 against each of the un-authorised occupiers and issue notice under Rule 18(1) of T.L.R. & L.R. Rules to each of the unauthorised occupiers to appear before me and show cause by 3 P.M. of 9th Oct., 1975 why they should not be evicted from Govt. khas land under their unauthorised occupation.

To 9.10.75.

Sd.... Sub-Divisional Officer, Sadar.

After receipt of the notice dated 6.10.75, Petitioner No. 2 Smt. Maya Barman instructed Shri P.M. Palit, Advocate, to appear before Respondent No. 3 on 9.10.75 to show cause as directed by the said notice dated 6.10.75. The lawyer arrived at the office of the Respondent No. 3 at 2.30 P.M. on 9.10.75 but Respondent No. 3 was not available in his office till 3.15 P.M. and upon his return, Respondent No. 3 told the lawyer of the Petitioner No. 2 that he (Respondent No. 3) had already passed the final order for eviction and issued notice under Rule 18(3) of the Tripura Land Revenue and Land Reforms Rules, 1961 (hereinafter referred to as the Rules). The lawyer of Petitioner No. 2 protested against the order of Respondent No. 3 pointing out that he could not have passed the order before expiry of the time granted for filing objection and he was ready to file the objection. Respondent No. 3, however, told the lawyer that he might file the same on 10.10.75.

The following orders were passed by the Sub-Divisional Officer, Sadar (Respondent No. 3) in case No. 33/75 (Eviction) on 9.10.75.

Neither OPs appear nor any cause shown on their behalf. Considering the materials on record I am satisfied that the 3 (three) OPs are in unauthorised occupation of C.S. Plot No. 4867. Khatian No. 1861 (Iza No. 1 Khatian) with area measuring .189 acres, and issue notice under Rule 18(3) of TLR Rules, 1961, asking the unauthorised occupants to vacate the land under their unauthorised occupation forthwith failing which action will proceed as per provision of law.

Sd. ...H.M. Choudhury, Sub-Divisional Officer, Sadar.

9.10.75 - Counsels on behalf of OP Smt. Maya Barman and Ors. appear and represent that injunction orders have been passed by Civil Court but no certified copy of the order nor any other document produced in support of their contention.

However the party are asked either to swear affidavit or to produce certified copy of the order.

To 10.10.75.

Sd/- H.M. Choudhury, Sub-Divisional Officer, Sadar.

On 10.10.75 Petitioner No. 2 Smt. Maya Barman filed an objection in Case No. 33/75 (Eviction) praying for stay of all further proceedings of the case till disposal of Title Suit No. 21 of 1975 pending in the Court of the Subordinate Judge, Tripura, Agartala. Similarly Anr. petition was filed by Samir Barman in Case No. 33/75 (Eviction) praying for staying further proceedings in the case till disposal of Title Suit No. 21 of 1975 pending in the Court of the Subordinate Judge, Tripura, Agartala. Respondent No. 3 thereupon adjourned the hearing of the Eviction Case No. 33/75 till November 20, 1975 and stayed the proceedings therein and the operation of all notices issued by him. The order dated 10.10.75 in Case No. 33/75 (Eviction) (Annexure 18 to the petition) is as follows:

10.10.75 - OP. Smt. Maya Barman, Paritosh Mukherjee alias Prasanta and Pradip Mukherjee on behalf of Sri Prafulla Mukherjee file show cause reply. Sri Samir Ranjan Barman (now in Jail custody) also file show cause reply. Learned Cousel for the OPs. states that a title suit has been filed by Sri Samir Ranjan Barman in the Court of Sub-Judge and an injunction has been allowed by Hon''ble Court restraining the Defendants from disturbing possession of Sri Barman. Heard the counsels at length. In view of the submission as above the present proceedings and operation of all notices issued from the Court are stayed. Learned Counsel submits that the next date for hearing in the Civil Court is fixed on 12.11.75.

To 20.11.75.

Sd/- H.M. Choudhury Sub-Divisional Officer, Sadar.

As Title Suit No. 21/75 was instituted before the expiry of the statutory period of notice u/s 80, Code of Civil Procedure, Samir Barman (Petitioner No. 1) was advised to make an application to the Court to withdraw the same and to institute a fresh suit. Accordingly on 6.11.75 the Petitioners applied before the Subordinate Judge praying for withdrawal of Title Suit No. 21/75 with liberty to institute a fresh suit and the Subordinate Judge heard the said application on 6.11.75 and reserved the order. On 10.11.75 at or after 2 P.M. the Subordinate Judge passed an order allowing Samir Barman to withdraw the Title Suit No. 21/75 to institute a fresh suit. Accordingly Title Suit No. 21/75 was withdrawn on 10.11.75 and immediately thereafter on 10.11.75 itself, Samir Barman instituted a fresh suit being Title Suit No. 23 of 1975 in the Court of the Subordinate Judge, praying interalia, for declaration that the order dated August 14, 1975 passed by the Respondent No. 2 in the said Misc. Case No. 51/West/74 was wrong and illegal and the entry of the name of the Respondent No. 6 in Khatian No. 5, 1861 Mouzak, Township No. 6, as Proprietor, be deleted and that the name of the Petitioner Samir Ranjan Barman be entered therein as raiyat and for other reliefs mentioned in the plaint. The Defendants impleaded in Title Suit No. 23/75 are as below:

(1) State of Tripura

(2) District Magistrate and Collector, West Tripura, Agartala

(3) Shri C.S. Samal, Joint Secretary, Revenue, Govt. of Tripura, Agartala.

Along with the plaint in Title Suit No. 23/75 the Petitioner also applied for injunction and by order dated 10.11.75 the Court issued a notice directing the Defendants to show cause why they should not be restrained by an order of injunction from interfering with the possession of the Petitioner Samir Barman over the said land and structures till the disposal of the suit and by the same order the Court also directed the said Defendants to maintain status quo till the hearing of the said injunction application. The Subordinate Judge also issued a letter of request to the Sub-Divisional Officer Sadar (Respondent No. 3) directing him not to proceed further with the Misc. Case No. 33/75 (Eviction) till the disposal of the said matter and until further orders. The order dated 10.11.75 passed by the Subordinate Judge in Title Suit No. 23/75 (Annexure 22) is quoted below:

10.11.75-

This is a plaint for cancellation of the name of Defendant No. 1 as proprietor of the suit properties in Khatian No. 1861 as stated in the plaint. It is in form, within time and properly stamped at Rs. 15/- Register it as T.S.

The Plaintiff has filed a petition supported by an affidavit for restraining the Defendants by an order of temporary injunction from interfering with the possession of the Plaintiff over the suit land and the premises standing on it.

The Plaintiff has also filed Anr. petition for stay of the Misc. Case No. 33 of 1975 (Eviction) pending in the Court of S.D.O., Sadar till the final disposal of this suit.

Heard the learned lawyer of the Plaintiff. Perused the special petition supported by affidavit and documents.

Issue notice upon the Defendants to show cause within 5 days of the receipt of the notice as to why they should not be restrained by the order of temporary injunction from interfering with the possession of the Plaintiff over the suit land and premises till the disposal of the suit. In the meantime both the parties are directed to maintain status quo of the suit land till the hearing of the injunction matter. Also issue a letter of request to the S.D.O. Sadar not to proceed further with Misc. Case No. 33 of 1975 (Eviction) till the disposal of the suit or until further orders.

Also issue summons and notice upon the Defendants. The Plaintiff to file requisite immediately. To. 28.11.75 for S.R.

Sd/- B.K. Bhattacharjee, Subordinate Judge.

That at about 2.45 P.M. on 10.11.75 the Officer-in-charge Kotwali Police Station, Sadar, accompanied by a large police force comprising about 15 Sub-Inspectors, 10 Women Constables and 100 men of the Central Reserve Police, armed with firearms broke into the said land and buildings thereon and started removing the furniture and properties of the Petitioners and started throwing them out of the said buildings. It is allowed that Shri Ajoy Sinha, District Magistrate and Collector and Shri N.K. Roy, Sub-Deputy Collector were also present and the aforesaid illegal and wrongful acts were carried out at their instance and instigation. Petitioner Smt. Maya Barman who was alone present at the material time protested against the wrongful conduct and activities but instead of listening to the protest, she was mocked at by the said Police. Then Petitioner Smt. Maya Barman contacted her lawyer who was in the Court premises and intimated to him the aforesaid facts and sought his advice. While she was conversing with her said lawyer over the telephone, the telephone line was cut off by the Police. At about 3 P.M. the lawyer of the Petitioner, who incidentally happens to be the brother of Petitioner No. 1, arrived at the said premises accompanied by the Process-Server of the Court of the Subordinate Judge with the said letter of request to the Sub-Divisional Officer directing him not to proceed with the Misc. Case No. 33 of 1975 (Eviction) till disposal of the Title Suit No. 23/75. The letter of request is Annexure 23 to the petition and it reads as follows:

To

The S.D.O. Sadar, Agartala.

Sir,

I am to request you not to proceed further with Misc. Case No. 33 of 1975 (Eviction) till the disposal of the suit or until further orders.

Sd/- B.K. Bhattacharjee. 10.11.75. Subordinate Judge, Sadar, Tripura.

It is alleged that Shri Ajoy Sinha, District Magistrate and Collector after going through the said letter of request directed the lawyer of the Petitioner to show the same to Shri N.K. Roy, Sub-Deputy Collector, who went through the contents of the said letter of request but refused to accept service thereof or to comply with the request contained therein. Thereafter Petitioner Smt. Maya Barman was forcibly evicted from the said land and structures and all her furniture and personal effects were forcibly removed and thrown out therefrom. The report of the Process-Server is at Annexure 24 to the petition, which is to the following effects-

(English translation)

Today (10.11.75) on being ordered by this Court to serve the stay order upon S.D.O., Sadar, I, with the stay order and being accompanied by Shri Sujit Barman Roy, Advocate of this Court, went to the house of Sri Samir Ranjan Barman and reached there at about 3 P.M. On my arrival I saw Addl. S.D.O. Sri N.K. Roy with many C.R.P. and police personnel bringing out luggages from the house of Sri Samir Babu. At this I showed Addl. S.D.O. the said stay order and requested him to receive it to effect its service. He read the stay order, but declined to accept it. At this Sujit Babu also requested Addl. S.D.O. repeatedly to receive the said stay order. Yet he declined to take it. At that time driver Sri Dilip Acharjee and many other people were present there. After this with the stay order I went to the office of the S.D.O. at Battala. But having not found S.D.O. there, I requested clerks of the office of S.D.O. to take the stay order. But they declined to take it. As such this notice is returned unserved. This is for your honour''s information.

11.11.75

Sd/- Sri Dinamani De Peon.

It is stated in the petition that from the certified copies of the orders in Case No. 33/75 (Eviction), Respondent No. 3 received a letter on 7.11.75 from Respondent No. 1 and thereupon Respondent No. 3 refixed 10.11.75 as the next date for the Eviction Case. The relevant orders have been quoted at Annexure 25 to the petition and it will be convenient to quote the said orders passed by the Sub-Divisional Officer, Sadar in Eviction Case No. 33/75.

7.11.75: Received letter No. 4631-34/D.M./REV/W/75. F.5-3 dated 7.11.75 from D.M. & Collector, West Tripura. It appears that the next date of hearing of T.S. 21/75 is fixed on 10.11.75. Put up the record on 10.11.75.

Sd/- H.M. Choudhury, Sub-Divisional Officer, Sadar.

10.11.75: Received letter No. F.5-3/D.M./REV/W/75 463-39 dated 10.11.75 at 2 P.M. It appears that injunction order in T.S. No. 21/75 has already been vacated by Hon''ble Court to-day.

Issue first notice under Rule 18(3) on the opposite parties to vacate possession forthwith.

Sd/- H.M. Choudhury, Sub-Divisional Officer, Sadar.

10.11.75: Service return of notice received at 2.30 P.M. S.D.O. Shri N.K. Roy along with Surveyor will take over the possession of the land described in the proceeding.

Sd/- H.M. Choudhury, Sub-Divisional Officer, Sadar.

10.11.75: S.D.C. Shri N.K. Roy vide his report States that vacant possession has been taken over by him by 3.30 P.M. today as the unauthorised occupants vacated the premises in question voluntarily.

Sd/- H.M. Choudhury. Sub-Divisional Officer, Sadar.

That the Officer-in-Charge, Kotwali Police Station and other officers with the Police force arrived at the premises of the Petitioners at about 2.45 P.M. The Officer-in-Charge, Kotwali Police Station then handed over the notice under Rule 18(3) of the Rules to the Petitioner No. 2 and stimultaneously started forcible eviction of the Petitioner No. 2 and her minor children, who were then taking food after return from their school, without giving any opportunity whatever to contest and to take appropriate steps against the said illegal and mala fide order of eviction. It has also been stated that on 15.11.75 an application was made for certified copies of the orders and reports submitted by N.K. Roy Sub-Deputy Collector, Sadar after eviction of the Petitioner but the copies were not supplied on the plea that the records were in the custody of the Government Advocate in his residence (vide Annexure-27). That the Respondent No. 3 passed the orders dated 7.11.75 behind the back of the Petitioners and that Respondent No. 3 also did not inform the Petitioners about the said orders dated 7.11.75 and the Petitioners were not aware of the charge of the date of Eviction case No. 33/75 from 20.11.75 to 10.11.75 as has been ordered on 7.11.75. By his earlier order dated 10.10.75 passed in Eviction Case No. 33/75 the proceedings and operation of all notices issued from the Court were stayed till 20.11.75 by the Sub-Divisional Officer, Sadar (Respondent No. 3). But without notice and information to the Petitioners and behind their back, the Sub-Divisional Officer, Sadar (Respondent No. 3) changed the date of the Evidence Case from 20.11.75 to 10.11.75 by his order dated 7.11.75.

On the above facts briefly stated, the Petitioners by this writ petition have challenged the proceedings in Eviction Case No. 33/75 as illegal and without jurisdiction and have prayed for a Writ of Certiorari quashing the said Eviction proceedings and also have prayed for an order or direction in the nature of mandamus directing the Respondents to forbear from commencing and/or continuing the proceedings against the Petitioners by reason or in consequence of the said impugned Eviction Case No. 33/75 and also for a direction to the Respondents to make over possession of the land in question and the buildings thereon to the Petitioners.

An affidavit-in-opposition has been filed on behalf of Respondents No. 1 to 6 and the different statements of the same have been sworn by Shri Ajoy Sinha, District Magistrate and Collector West Tripura (Respondent No. 1), Shri Kula Chandra Sinha, Additional District Magistrate and Collector, West Tripura (Respondent No. 2) and Shri Nripendra Kumar Roy, Sub-Deputy Collector, Sadar (Respondent No. 5). Another affidavit-in-opposition has been sworn by Respondent No. 3, Sri Himangshu Mohan Choudhury, Sub-Divisional Officer. Sadar. Affidavit-in-reply also have been filed by the Petitioners as well as Respondent No. 1 to 6.

In the affidavit-in-opposition many of the facts alleged in the petition have been denied or disputed, we shall discuss this point later on in this judgment.

Mr. B.C. Barua, the learned Counsel appearing on behalf of the Respondents, raises a few preliminary objections to the maintainability of the application under Article 226 of the Constitution. Mr. Barua has first submitted that in view of the Presidential Order dated 8.1.76 under Article 359(1) of the Constitution which has suspended the right to move any Court for the enforcement of the right conferred under Article 19, the Petitioners are debarred from moving the High Court under Article 226 of the Constitution to enforce right to property and as such the petition should be dismissed in limine.

The Presidential Order dated 8th January, 1976 passed under Article 359(1) of the Constitution is quoted below:

MINISTRY OF HOME AFFAIRS ORDER

New Delhi, the 8th January 1976

C.S.R. 16 (E). - In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under Clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975, are both in force.

This Order shall extend to the whole of the territory of India.

The Proclamations of Emergency are still in force.

Mr. Barua submits that the Proclamations of emergency are still in force and therefore in view of the Presidential Order dated 8th January, 1976 the right of any person to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution is suspended, the right to move a Court for enforcement of right under Article 31(1) of the Constitution automatically stands suspended and since in the instant case, the Petitioners have sought to enforce the right under Article 31(1) of the Constitution, this petition is liable to be dismissed in limine.

The point that arises for consideration is whether suspension of a person''s right to move any Court for the enforcement of the rights conferred by Article 19 automatically suspends also the right of any person to move any Court for enforcement of right under Article 31(1) of the Constitution.

Both Article 19 and Article 31 are included in Part III of the Constitution which deals with Fundamental Rights. Article 14 to 18 deal with Right to Equality, Articles 19 to 22 deal with Right to Freedom, Articles 23 and 24 deal with Right against Exploitation, Articles 25 to 28 deal with Right to Freedom of Religion, Articles 29 and 30 deal with Cultural and Educational Rights, Articles 31 to 31C deal with Right to Property and Articles 32 to 35 deal with Right to Constitutional Remedies.

Article 19(1)(f) provides that all citizens shall have the right to acquire, hold and dispose of property. Thus Article 19(1)(f) guarantees freedom to all citizens to acquire, hold and dispose of property. Article 31(1) provides that no person shall be deprived of his property save by authority of law. Under Article 19(1)(f) a citizen has the freedom or fundamental right to acquire, hold and dispose of property and if there is any infringement or abridgement of this fundamental right by any action of the State the citizen has the right to move the Supreme Court or the High Court for enforcement of this right under Article 32 and Article 226 of the Constitution respectively. The freedom or the fundamental right under Article 19(1)(f) is guaranteed in favour of a citizen and not in favour of non-citizen. On the other hand, the fundamental right under Article 31(1) is guaranteed in favour of all persons, whether citizens or non-citizens. Article 31(1) provides that no person, whether he is a citizen or non-citizen, shall be deprived of his property save and except by authority of law. Article 31(1) guarantee that a person, whether a citizen or non-citizen, shall not be deprived of his property without the authority of law. In other words, the action of the State in depriving any person, whether citizen of non-citizen, of his property must be supported by some law. Thus it cannot be reasonably said that the fundamental right under Article 19(1)(f) is same or identical with the fundamental right under Article 31(1). Therefore, in our considered opinion the freedom or fundamental right guaranteed under Article 19(1)(f) is not the same or identical with the fundamental right guaranteed under Article 31(1). The two rights are quite distinct and distinguishable though in some cases there may be coalescence on the fringes of the two rights.

The Presidential Order of 8th January 1976 has suspended the right of any person to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights for the periods during which the Proclamations of Emergency made under Clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975, are both in force. The Presidential Order has not suspended a person''s right to move any Court for enforcement of his right conferred under Article 31(1). A Presidential Order passed under any provision of the Constitution suspending any fundamental right guaranteed under the Constitution must necessarily be specific, clear and unambiguous. In our opinion, a fundamental right guaranteed under the Constitution cannot be taken any indirectly or impliedly as submitted by the learned Counsel for the Respondents. The very concept of a fundamental right guaranteed by the Constitution will lose its meaning and sanctity if it can be taken away or abridged or suspended indirectly, impliedly or by ambiguous language of an order.

The Petitioners in this writ petition have not claimed to enforce a right under Article 19(1)(f) of the Constitution. What they contend in the petition is that they have been deprived of their property by the State Government without the authority of law in complete violation of their right under Article 31(1) of the Constitution. The other words, the Petitioners contention is that the proceedings u/s 15 of the Tripura Land Revenue and Land Reforms Act, 1960, under which the Petitioners have been summarily evicted from their land and buildings, are wholly without jurisdiction and that the orders of eviction passed against them in that proceeding and the action of executing the orders in that proceeding were all without jurisdiction and illegal. On that basis the Petitioners claim for the relief stated hereinabove.

Considering the facts and circumstances of the case and the legal position as discussed above, we hold that the submission of the learned Counsel for the Respondents that the present petition is not maintainable in view of the Presidential Order of 8th January 1976 and it should be dismissed in limine, has no substance.

The learned Counsel for the Respondents secondly submits that the Petitioners have adequate alternative remedy by way of appeal and suit under the provisions of the Act and therefore the present writ petition should be rejected on that ground.

Sub-section (4) of Section 11 of the Act provides for a civil suit against an order made under Sub-section (3). Section 11 of the Act may be quoted:

Title of Government to lands, etc.

(1) All lands, public roads, lanes and paths and bridges, ditches, dikes, and fences on or beside the same, the beds of rivers, streams, nallas, lakes and tanks, and all canals and water courses, and all standing and flowing water, and all rights in or over the same or appertaining thereto, which are not the property of any person, are and are hereby declared to be the property of the Government.

(2) Unless it is otherwise expressly provided in the terms of a grant made by the Government, the right to wines, quarries, minerals and mineral products including mineral oil, natural gas and petroleum shall vest in the Government, and it shall have all the powers necessary for the proper enjoyment of such rights.

(3) Where any property or any right in or over any property is claimed by or on behalf of the Government, or by any person as against the Government and the claim is disputed, such dispute shall be decided by the Collector whose order shall, subject to the provisions of this Act, be final.

(4) Any person aggrieged by an order made under Sub-section (3) or in appeal or revision therefrom may institute a civil suit to contest the order within a period of six months from the date of such order and the decision of the civil court shall be binding on the parties.

Jurisdiction of Civil Courts to decide dispute regarding the right or entry recorded in the Record of Rights, has been laid down in Section 44 of the Act which reads as follows:

Jurisdiction of Civil Courts to decide disputes.

The Civil Courts shall have jurisdiction to decide any dispute to which the Government is not a party relating to any right or entry which is recorded in the record of rights.

Section 156(2) of the Act provides for a suit regarding the compensation payable to intermediaries.

Section 188 of the Act provides general exclusion of jurisdiction of civil courts which runs as follows:

Jurisdiction of civil courts excluded.

No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act:

Provided that if in a dispute between parties a question of title is involved, a civil suit may be brought for the adjudication of such question.

In State of U.P. v. Mohammed Nooh AIR 1958 SC 86, S.R. Das, C.J., speaking for the Court observed as follows:

In the next place it must be born in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statue, (Halsbury''s Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has Anr. and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has eshausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, congenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster General; Ex-parte Carmichael 1928 1 K.B. 291 (E), a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice....

On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point- where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obstrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court''s sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to Anr. inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the orginal trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that.

In Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, at page 558 the Supreme Court approving State of U.P. v. Mohammad Nooh (supra) observed as follows:

it is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special Jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed Vs. The Municipal Board, Kairana, "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs'' and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it would be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorarily notwithstanding the fact that the statutory remedies have not been exhausted.

The Supreme Court in Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad (supra) has further observed as follows:

There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full-course See the decisions of this Court in Carl Still G.M.B.H. and Another Vs. The State of Bihar and Others, and The Bengal Immunity Company Limited Vs. The State of Bihar and Others, In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. See The State of Uttar Pradesh Vs. Mohammad Nooh,

The Petitioner''s case briefly is that Petitioner No. 1 purchased the land in question and some structures thereon for valuable consideration by a registered sale deed and thereafter he constructed some R.C.C. building thereon and that he got his name recorded in the Record of Rights as well as in the Municipality and that he had been paying the land revenue and taxes and thus the Petitioner No. 1 and his wife, Petitioner No. 2 were in peaceful enjoyment of the property in question for a few years when they had been summarily evicted by a proceeding u/s 15 of the Act and the Petitioners contend that the proceeding u/s 15 of the Act in which the action of eviction of the Petitioners has been taken by the State Government is wholly without jurisdiction because the proceeding and the orders thereon and the action of eviction in pursuance of orders are taken and passed in complete violation of the mandatory provisions of the Act and the Rules framed thereunder as well as in complete violation of the principles of natural justice. On consideration of the facts and circumstances of the case as appear from the affidavits and the grounds challenging the impugned proceeding as well as the law laid down by the Supreme Court on the question of issuing of writ of certiorari even when there is an alternative remedy, as quoted hereinabove, we are unable to agree with the learned Counsel''s submission that the petition should be rejected in limine. Of course, while examining the case on merits we will have to consider whether it would be a fit case for issuing the writ as prayed for keeping in view the existence of alternative remedy. Therefore, the second preliminary point raised by the learned Counsel for the Respondents has no substance.

The learned Counsel for the Respondents has raised a third preliminary point and has submitted that the Petitioners have already filed a suit and that suit is still pending and an injunction order was obtained therein and that being the position Anr. proceeding by way of a writ petition is not available to the Petitioners.

From the facts stated hereinabove it is clear that against the order dated 14.8.75 passed u/s 11(3) of the Act the Petitioners filed Title Suit No. 21/75 on 30.9.75 and there was an injunction order in that suit restraining the Respondents to proceed with the proceeding u/s 15 of the Act. Title Suit No. 21/75 was for formal defect withdrawn on 10.11.75 with permission to file a fresh suit and the fresh suit being Title Suit No. 23/75 was filed on the same date i.e. 10.11.75 and an injunction order was issued. Firstly the suit has been filed as provided under Sub-section (4) of Section 11 of the Act against the order passed under Sub-section (3) of Section 11 of the Act. The order dated 14.8.75 passed u/s 11(3) of the Act is not the subject matter of this writ petition. The subject matter of this writ petition specifically is the proceeding u/s 15 of the Act. There may be some relation between a proceeding u/s 15 of the Act and the order u/s 11(3) of the Act but in the instant case the Petitioners have chosen not to challenge the order passed u/s 11(3) of the Act which was the subject matter of Title Suit No. 21/75 and also is the subject matter of present pending Title Suit No. 23/75. The remedies sought for in this writ petition are in respect of the proceeding u/s 15 of the Act and the orders passed and action taken therein. That being the position and in view of the facts and circumstances of the instant case we are clearly of the opinion that the learned Counsel''s third preliminary point also has no substance.

The learned Counsel for the Respondents fourthly submits that the case involves disputed questions of fact and therefore the petition should be rejected in limine.

On going through the records we find that there are a number of facts which are not disputed in the instant case and it will have to be examined on merits whether on the admitted and/or undisputed facts any relief can be granted to the Petitioners as prayed for. We find on examining the facts of the case from the affidavits of the parties, that the writ petition cannot be rejected in limine on the plea that it involves disputed questions of fact. We are clearly of opinion that the petition requires consideration on merits.

Mr. Barua lastly raises the preliminary point that in any view of the matter even if the proceeding in question is found to be bad for any reason there cannot be any question of restitution or putting the Petitioners in possession of the land and buildings in question. This point will be considered towards the close of the judgment.

In the result we find that none of the preliminary objections are tenable and the petition has to be considered on merits.

It has been stated in the petition that Ashit Bhattacharjee was the duly recorded owner, inter alia, of about 0.306 acres of land with structures thereon at No. 38 Akhaura Road, Agartala and said Ashit Bhattacharjee''s name was recorded as Raiyat in the Record of Rights in Town Sheet No. 6, C.S. Khatian No. 1861, Dag No. 4867. This is corroborated by Annexure 31 at page 342 of the brief, which is a copy of the Records of Rights wherein the name of Ashit Chandra Bhattacharyya, son of Amar Chandra Bhattacharyya has been shown as "in respect of Plot No. 4867 of Khatian No. 1861. The class of land is described as homestead having two tin roofed houses and one building and one latrine.

It has been stated in the petition that Ashit Bhattacharjee sold by a registered sale deed dated 8th November, 1968 and area of 9 Gondas, 2 Karas 7 Dhurs with structures thereon out of the said Dag No. 4867 of Khatian No. 1861, Town Sheet No. 6 for a consideration of Rs. 27,000/-in favour of Petitioner Samir Barman and that Samir Barman''s name was duly mutated and entered in the Records of Rights. This is corroborated by Annexure I to the petition, which is a copy of the Record of Rights. In Annexure I we find the name of Samir Ranjan Barman, son of Sudhir Ranjan Barman, Ramnagar RO. Agartala, which has been shown as" "in respect of 0.189 acres, that is, 9 Gondas 8 Dhurs 7 Karas out of Plot No. 4867. The land has been described as homestead having one building, two tin sheds and one latrine. From the date of purchase (8.11.68) Petitioner Samir Barman was admittedly in possession of the land till he was evicted in the Eviction Case No. 33/75 on 10.11.75. A copy of the registered sale deed dated 8.11.68 by Ashit Bhattacharjee in favour of Samir Barman in respect of the land and structures thereon is found that Annexure 32 at page 345 of the brief.

It has been stated in the petition that Petitioner Samir Barman took a loan of Rs. 25,000/- from the Government of Tripura under Middle Income Group Housing Scheme and duly mortgaged a part of the said land in favour of the Government of Tripura.

It has also been stated in the petition that Petitioner No. 1 has let out a portion of the ground floor of the building to Jamair Co. Ltd. at a monthly rental of Rs. 380/- and Anr. portion to Profulla Kumar Mukherjee, Proprietor of Tripura Traders at a monthly rental of Rs. 200/-.

In paragraph 18 of the affidavit-in-op-position filed on behalf of Respondent No. 3 it has been admitted that the State Government granted a loan of Rs. 25,000/- to the Petitioner No. 1 under Middle Income Group Housing Scheme as stated in paragraph 19 of the application and that the loan was granted on the recommendation of the Advisory Board constituted for the purpose and during the enquiry about the title of the Petitioner No. 1 over the land he had produced a copy of the Khatian, revenue receipt granted by the Revenue Officer and receipts issued by the Municipality in respect of the payment of municipal tax. It is, however, stated in paragraph 18 of the af-fidavit-in-opposition that during the said enquiry Petitioner No. 1 suppressed all the facts relating to the will executed by Amar Chandra Bhattacharjee.

Thus it appears that the land in question and the structures thereon were recorded in the name of Ashit Bhattacharjee who was a" "in respect of the same as an heir of his father Amar Chandra Bhattacharyya and in 1968 the land and the houses in question were transferred in favour of Samir Barman, who came to won and possess the land and the houses thereon from the date of purchase on 8.11.68 and thereafter Samir Barman took a loan of Rs. 25,000/- from the Government of Tripura under Middle Income Group Housing Scheme and a portion of the land also was mortgaged in favour of the State Government of Tripura for the loan in question. These facts are not disputed. It is also not disputed that Petitioner No. 1 Samir Barman has been detained under Maintenance of Internal Security Act, 1971 with effect from 28.6.75.

The Respondents'' case is that the land and the structures thereon originally belonged to Amar Ch. Bhattacharyya, who left a Will and the Will was probated and the Petitioner No. 1 suppressed the contents of the Will at the time of taking the loan from the Government. Regarding the Will, it has been stated in paragraph 23 of the affidavit-in-opposition as follows:

As per recitals of the Will, the said properties, right in or over the said properties were claimed by or on behalf of the Government. The recital in the Will states that the testator disposed of the said properties for continuance of the Seva-Puja of the deity "Gouranga Nityananda" installed by him. For continuance of the seva-puja from the income of the said properties the testator created successive interests. It appears from the contents of the Will that the testator could visualise a situation where if his adopted son dies without heir the seva puja is likely to be stopped. To meet the eventuality suitable provisions were made in the Will that in the absence of heirs and successors and/or in case of discontinuance of seva puja by them, the properties would devolve upon the Government which will continue the seva puja. The testator totally prohibited transfer of the said properties as it is likely to effect the continuance of the seva puja. The intention of the testator being the continuance of the seva puja and for that purpose he created successive interests. When the seva puja discontinued, the Government which has the successive interest stepped in for the continuance of the seva puja of the deity. It is submitted that the provisions of Section 11(3) of the said Act have application to the basis of the Will to the said properties and/or right in or over the same were disputed by the Petitioner No. 1.

Thus the Respondents claimed the properties in question in terms of the Will left by Amar Ch. Bhattacharyya.

On the basis of the recitals in the Will of Amar Ch. Bhattacharyya, the State of Tripura filed an application u/s 11(3) of the Act on or about 23rd of August, 1974 praying for an order under Sub-section (3) of Section 11 of the Act (vide Annexure 3 to the petition). It has been stated in paragraph 3 of the said petition as follows:

That said Ashit Chandra Bhattacharjee is not traceable and heard of for a long period of time. It is presumed that he is no more living in this world. No heirs of said Bhattacharjee, if any, could also be traced out. According to the last wishes of the Testator, the Seva Puja of the deity is not being performed. So, in accordance with the terms, express or implied, of the Will the management as She bait of the Debottar properties including seva puja of the deity, Gouranga Nityananda, developes upon the State and the State should take upon itself the duties cast upon it.

In paragraph 4 of the said petition it has been stated as follows:

That the so-called deeds in favour of the opposite parties have no legal effect, being contrary to the terms of the last Will of the Testator. These alleged deeds are void ab initio and the so-called transferees had or have no right, title or interest in the properties included in the alleged deeds.

That the petition u/s 11(3) of the Act was numbered as Misc. Case No. 51/West/74. Samir Barman filed an objection petition in Misc. Case No. 51/West/74 on 11.6.75. But thereafter from June 28, 1975, Samir Barman has been detained under the Maintenance of Internal Security Act, 1971. Thereafter by order dated 14.8.75 in Misc. Case No. 51/West/74 Respondent No. 2 Additional District Magistrate and Collector, West Tripura, held that the property in question vested in the State of Tripura and the registered sale deed in favour of Samir Barman in respect of the land and structures in question was void ab-initio and accordingly Respondent No. 2 directed for correction of Record of Rights in favour of Respondent No. 6, State of Tripura. The Petitioners have alleged that the said order dated August 14, 1975 was illegal and without jurisdiction on various grounds as set out in paragraph 36 of the petition. In the present petition, however, the prayer of the Petitioners is not for quashing the impugned order dated 14.8.75 passed in Misc. Case No. 51/West/74 and therefore we are not required to enter into the merits of this order dated 14th August, 1975. In fact the Petitioners filed Title Suit No. 21/75 which was subsequently withdrawn on 10.11.75 and a fresh suit being Title Suit No. 23/75 has been filed on 10.11.75 itself challenging the order dated 14.8.75 passed in Misc. Case No. 51/West/74.

A certified copy of the Will executed on 23rd Chaitra 1344 Tripura Sal in Bengali has been filed wherein it is found that Amar Chandra Bhattacharjee made a Will in respect of administration of the properties left by him. It has been stated in the Will, inter alia that from the income of his now residential quarters, Seva Puja of Gauranga Nityananda should be performed and from the income specially from the movable and immovable properties of Bidyakut village, the Seva Puja of Shri Shri Harasundari Kali established in Bidyakut village should be maintained. That the testator''s legal heirs would not be entitled to transfer by way of sale or gift any of these properties. That the properties would remain in the hands of the testator will his death and after the testator''s death his adopted son Ashit Bhattacharjee and his sons, grand-sons and other legal heirs from generation to generation would enjoy the property and that after the death of the testator all movable and immovable properties of the testator would remain with his adopted son Ashit Bhattacharjee and that the Seva Puja of Gauranga Nityananda and Shri Shri Harasundari Kali should be maintained. That if by chance there were no legal heirs of the adopted son of the testator, then the properties in the independent State of Tripura would be managed by Tripura State and the properties in British Tripura would be maintained by the British Government.

One crucial point regarding the administration of the property as per terms of the Will is that if after the death of Ashit Bhattacharjee, there is no legal heir of him, then the property would be administered by the Government.

In their application u/s 11(3) of the Act the Tripura Government has stated that Ashit Bhattacharjee was not traceable and heard of for a long period of time and therefore it was presumed that he was no more living in this world and that no heirs, if any, of said Ashit Bhattacharjee could be traced out and therefore as per terms of the Will the Government has taken up the management of the properties under the Will as ''Shebait''.

The Petitioners in paragraph 18 of their petition have asserted that Ashit Bhattacharjee is still alive and he has got his sons and other legal heirs. It is the case of the Petitioners that on 8th November, 1968 Ashit Bhattacharjee executed the sale deed in favour of Petitioner No. 1 and the other sale deeds in favour of the other persons mentioned hereinabove. So he was very much alive on 8th November, 1968. In paragraph 18 of the petition it has been stated by the Petitioners that after having disposed of the land and structures Ashit Bhattacharjee settled in West Bengal and he is now residing at Birati, District 24 Parganas, State of West Bengal. It has also been stated that Ashit Bhattacharjee was a freedom fighter and he received pension from the State of Tripura and is now receiving pension from the State of West Bengal and four sons of Ashit Bhattacharjee are still residing with Ashit Bhattacharjee as far as the Petitioners'' information goes. The statement made in paragraph 18 of the petition has been sworn by Petitioner No. 2 Maya Barman as true to information derived from enquiry.

In the affidavit-in-opposition sworn on behalf of the Respondents, the statement made by the Petitioners at paragraph 18 of the petition, has been denied and disputed as is found in paragraph 17 of the affidavit-in-opposition (at page 240-241 of the brief). The statement made in paragraph 17 of the affidavit-in-opposition is only submission before the Court (vide page 289 of the brief).

In paragraph 18 of the affidavit-in-reply filed on behalf of the Petitioners (at page 308 of the brief) it has been stated as follows:

The Petitioners assert that Ashit Chandra Bhattacharjee is still living and he has four children who are also alive. At present Ashit Chandra Bhattacharjee is available at the following address:

Ashit Chandra Bhattacharjee Care of: Shri Mahadeb Das, Janakalyan Colony, P.O. Nimta, Jatindra Nagar, Calcutta-49.

The Petitioners beg to state that Ashit Chandra Bhattacharjee is still receiving political pension as a freedom fighter issued by the Government of India, Ministry of Home Affairs vide authority No. 33/1/GENL/73FF iii dated 25.9.73 with effect from 15.8.72, pension payment order being No. Pol/8986 (c) for Rs. 140/- Cal (Political Pension). Shri Bhattacharjee drew last payment for the month of December, 1975 on 12.1.76 from the Office of the Accountant General (Central), Calcutta-1. Shri Ashit Chandra Bhattacharjee is receiving Anr. pension from the West Bengal Government payment order being No. Pol(S)/3626 at the rate of Rs. 60/- per month. This pension is being regularly withdrawn from the office of the Accountant General (West Bengal) Calcutta-1. Ashit Chandra Bhattacharjee previously used to get political pension from the State of Tripura which has now been discontinued. The Petitioner No. 2 accompanied by Shri Sujit Barman Rai, a younger brother of Petitioner No. 1 went to Calcutta on 11.1.76 and stayed there for a few days. The Petitioner No. 2 along with said Sujit Barman Rai visited the office of the Accountant General (Central), as well as of West Bengal on 12.1.76 and obtained the aforesaid informations. The aforesaid Sujit Barman Rai made further enquiries and he obtained the following informations about Ashit Chandra Bhattacharjee:

(a) Ration Card No. of Ashit Chandra Bhattacharjee is numbered M/088374 and he is getting his rations on the strength of the said card from Ration shop No. A.R. 571 Sub-area Kamarhati situated at 11, Rifle Range Road, Calcutta-56.

(b) one of the sons of Ashit Chandra Bhattacharjee, namely, Kalyan Kumar Bhattacharjee is a student of Class XI reading in Surendra Nath Collegiate School at Calcutta. A copy of the certificate dated 16.1.76 granted by the officiating Head Master of the said School is annexed herewith as Annexure-30 which will also show that Ashit Chandra Bhattacharjee is still alive.

*** *** ***

The above statement made in paragraph 18 of the affidavit in reply has been sworn as true to knowledge by Petitioner No. 2.

As is seen from the terms of the Will, if Ashit Bhattacharjee is alive and his legal heirs are also alive, the properties would not come to the Government for administration. Of course, one of the conditions of the Will is that the properties in question shall not be transferred by way of gift or sale by any of the heirs of the testator.

Whether the sale deed executed by Ashit Bhattacharjee in favour of Petitioner No. 1 is void ab-initio is a matter to be decided by the Civil Court and not by the Revenue Court. That apart, the administration of the properties in question develope on the State Government as per terms of the Will only on the death of Ashit Bhattacharjee without living any legal heirs. The Petitioners assert that Ashit Bhattacharjee is still alive and he has four sons living with him. Whatever that may be, at least on 8.11.68 on which date the sale deed in question was executed and registered in favour of Petitioner No. 1 Ashit Bhattacharjee was alive. The application u/s 11(3) of the Act was filed by the State Government on 23.8.74, that is, within six years from the date of execution of the sale deed. So the presumption sought to be made in the Petitioner u/s 11(3) of the Act filed by the State Government that Ashit Bhattacharjee was dead, is not available even u/s 108 of the Evidence Act which reads as follows:

Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by these who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirm it.

This presumption that Ashit Bhattacharjee is dead, is not legally available to the State Government in its petition u/s 11(3) of the Act filed on 23rd August, 1974.

The question of interpretation of the terms of the Will, whether Ashit Bhattacharjee is dead or alive, are matters particularly relevant for the purpose of decision of the application u/s 11(3) of the Act or for decision by an appropriate Civil Court before which the matter may be agitated.

But so far as this writ petition is concerned, we simply notice these facts and we do not proceed further.

In the instant case the Petitioners'' main submission is that they have been evicted in a proceeding u/s 15 of the Act and the entire proceeding u/s 15 of the Act is illegal and without jurisdiction.

Section 15 of the Act is quoted below:

Unauthorised occupation of land.

15.(1) Any person who occupies or continues to occupy and land belonging to Government without lawful authority shall be regarded as trespasser and may be summarily evicted therefrom by the competent authority and any building or other construction erected or anything deposited on such land, if not removed within such reasonable time as such authority may from time to time fix for the purpose, shall be liable to be forfeited to the Government and to be disposed of in such manner as the competent authority may direct.

Provided that the competent authority may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof.

(2) Such trespasser shall also be liable by way of penalty to pay a sum which may extend to six times the annual assessment on such land as may be specified by the competent authority and such sum shall be recoverable in the same manner as an arrear of land revenue.

(3) Upon payment of the penalty referred to in Sub-section (2), the trespasser shall have the right of tending, gathering and removing any ungathered crops.

Section 88(1) of the Act reads as follows:

The Administrator may, by notification in the official Gazette, make rules for carrying out the purposes of this Part.

Section 98 is in Part II Chapter VIII of the Act. Section 11 dealing with title of Government of lands, etc. and Section 15 dealing with unauthorised occupation of land, are also included in Part II of the Act.

Section 98(2)(c)(f) read as follows:

98(2) In particular and without prejudice to the generally of the foregoing power, such rules may provide for-

(c) the officers who should hear and decide disputes regarding rights in or over any property claimed by or against the Government and the procedure to be followed by them:

(f) the procedure for summary eviction of trespassers on Government Land.

*** *** ***

The Tripura Land Revenue and Land Reforms Rules, 1961 have been made in exercise of the powers conferred by Section 98, 132, 161, 184 and 197 of the Act.

Rule 18 of the Rules reads as follows:

Procedure for summary eviction.

18(1) Before ordering eviction of a person under Sub-section (1) of Section 15 of the competent authority shall issue a notice to him requiring him to show cause within a period to be specified in the notice why he should not be evicted from the land.

(2) If the person concerned files an objection within the period specified in the notice or such extended period as may be allowed by the competent authority it shall hold a summary inquiry in the manner laid down in Schedule III.

(3) If the person concerned files no objection within the time so allowed or if after inquiry the competent authority finds that the person is a trespasser it shall order his eviction and shall also require him to remove any building or other construction erected or anything deposited on the land within a time specified in the order.

Section 15 of the Act lays down that a trespasser may be summarily evicted from any land belonging to Government by the competent authority. Rule 18 of the Rules provides the procedure for summary eviction as contemplated u/s 15(1) of the Act. Rule 18(1) requires that before an order of eviction of a person u/s 15(1) is passed by the competent authority, it shall issue a notice to the person requiring him to show cause within a period to be specified in the notice why he should not be evicted from the land. Sub-rule (2) of Rule 18 provides that if the person concerned files an objection within the period specified in the notice or such extended period as may be allowed by the competent authority it shall hold a summary enquiry in the manner laid down in Schedule III. In Schedule III to the Rules procedure for Revenue Courts is laid down.

Rule 124 of the Rules reads as follows:

Procedure of revenue courts and officers.

(1) The procedure for revenue courts and of proceedings before revenue officers 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 of a formal enquiry shall be held in the manner provided for summary enquiry in Schedule III.

Rule 125 of the Rules reads as follows:

Extent of applicability of Code of Civil Procedure.

Subject to the provisions of the Act and these rules the CPC 1908, shall, as far as may be, apply to all or any of the proceedings taken by any revenue Court under the Act.

In the proceeding u/s 15 of the Act (Eviction Case No. 33/75, admittedly no notice was issued to Samir Barman, Petitioner No. 1, who was in possession of the land and the houses in question after having purchased the same. It is not disputed that till the eviction on 10.11.75 Samir Barman was in possession of the land and the houses, in a part of which he had also the two tenants mentioned hereinabove. In fact, the proceeding u/s 11(3) of the Act was against Samir Barman. That being the position, in order to resort to summary eviction as provided u/s 15, Rule 18 of the Rules requires to be complied with. Rule 18 which has been quoted hereinabove clearly provides that before an order of eviction of a person under Sub-section (1) of Section 15 may be passed, the competent authority shall issue a notice to that person requiring him to show cause within a period to be specified in the notice why he should not be evicted from the land. Sub-rule (1) of Rule 18 requires that before passing the order of eviction the competent authority shall issue a notice on the person to be evicted requiring him to show cause by fixing a date within which cause has to be shown as to why he should not be evicted. Sub-rule (2) provides that if the person concerned files an objection as required in the notice, the competent authority shall hold a summary enquiry in the manner prescribed in Schedule III to the Rules. Sub-rule (3) provides that if no objection within the time fixed is filed by the person concerned, the competent authority shall pass the order of eviction and also shall require him to remove any building or other construction erected or anything deposited on the land within the time to be specified in the order. If objection is shown and if the competent authority in the summary enquiry held in the manner laid down in Schedule III, finds that the person concerned is a trespasser then the competent authority shall pass the order for his eviction and also shall require him to remove any building or other construction erected or any thing deposited on the land within a time specified in the order. From the scheme of Section 15 read with Rule 18 which has been framed u/s 98(2)(f), it is quite clear that before a person may be summarily evicted, the competent authority must issue a notice upon the person concerned requiring him to show cause within a fixed time as to why he should not be evicted from the land and if he shows no cause then the competent authority may immediately pass the order of eviction but if some cause is shown then there must be a decision by the competent authority in the summary enquiry that the person concerned is a trespasser and then only the order for eviction shall be passed.

Section 15 provides that any person who occupies or continues to occupy any land belonging to Government without lawful authority shall be regarded as a trespasser and such trespasser may be summarily evicted from such land by the competent authority. If there is any building or other construction erected or anything deposited on such land, then the competent authority will fix reasonable time for their removal and if not removed within such reasonable time as fixed by the competent authority, then those buildings and other constructions shall be liable to be forfeited to the Government. Section 15 no doubt confers jurisdiction on the competent authority for summary eviction of trespasser but at the same time Section 98(2)(f) provides that the Administrator may make Rules particularly providing for the procedure for summary eviction of trespassers on Government land and accordingly Rule 18 has been framed. The power of a summary eviction conferred by Section 15, in our considered opinion, can be exercised only in accordance with the Rule that has provided for the procedure for summary eviction of trespassers on Government land as made u/s 98(2)(f). In other words, the power of summary eviction of a trespasser can be exercised only by following Rule 18 and not otherwise.

At this stage the question arises whether Rule 18 is - directory of mandatory.

We have already noticed that the power of summary eviction conferred by Section 15 has been made subject to the rule of procedure for summary eviction that may be framed u/s 98(2)(f) and Rule 18 is the Rule framed u/s 98(2)(f). That being the position, therefore, in our considered opinion, the power of summary eviction has to be exercised in accordance with the procedure laid down under Rule 18 and not otherwise. The procedure for summary eviction laid down in the Rule framed u/s 98(2)(f) cannot be detached from the power or jurisdiction of summary eviction conferred u/s 15, Rule 18, in our opinion, has simply conformed to the accepted principles of natural justice before exercising the summary power of eviction.

In State of Punjab Vs. K.R. Erry and Sobhag Rai Mehta, the Supreme Court has observed as follows:

Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See: Province of Bombay v. Kusaldas S. Advani 1950 SCC 222 and Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, With the proliferation of administration decisions in the further recognised by Courts both in England and in this country, (especially after "the decision of House of "Lords in 1964 AC 40) that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects individual rights or interests and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, In the former case it was observed at page 628 as follows:

In order by the state to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our Constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to set judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

These observations were made with reference to any authority which could be described as characteristically administratige. At page 630 it was observed:

It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of a natural justice after informing the first Respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first Respondent of being heard and meeting or explaining the evidence.

This case and the English case in re H.K. (An Infant) (1967) 2 QBD 617 were specifically referred to with approval in a decision of the constitutional bench of this Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others,

The Rule which declares that even an administrative authority has to act fairly after giving an opportunity to the person whose rights and interests are affected by its decision is no more than an extension of the well known rule which Courts in England had recognised in the 19th Century. In Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180 the Board, which had, under the Act of 1855. the authority to demolish any building constructed if the owner thereof had failed to give proper notice, was held bound to give the owner an opportunity of being heard before the demolition. It was contended in that case by the Board that their discretion to order demolition was not a judicial discretion. But the Court decided unanimously in favour of the owner. Erle C.J. held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard and that this had been applied ''to many exercises or power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down. ''Wiles, J. observed'' that the ''rule was of universal application, and founded upon the plainest principles of justice.

It is common case that in the instant case for the purpose of Section 15 of the competent authority is the Sub-Divisional Officer, who is a Revenue Officer u/s 4 of the Act u/s 7 all revenue officers are subordinate to the Administrator and all revenue officers in the district or a sub-division shall be subordinate to the Collector or the sub-divisional officer, as the Case may be.

Section 81(1) of the Act reads as follows:

A revenue officer, while exercising power under this 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 any proceedings, shall be a revenue Court.

Section 81 to 98 are included in Chapter VIII of Part II which deals with procedure of revenue officers: appeals and revisions.

Section (sic) of the Act reads as follows:

Where any order is passed under this Act directing any person to deliver possession of land or directing the eviction of any person from land, such order shall be executed by the competent authority in such manner as may be prescribed and it shall be lawful for such authority, in accordance with rules to be prescribed, to take such steps and use or cause to be used such force as max be reasonably necessary for securing compliance with the order.

It is now settled law in this country that principle of natural justice has to he observed not only in judicial and quasi-judicial proceedings but also in administration matters. That being so the principles of natural justice arc inseparable parts of a proceeding in a revenue court under this Act. It is thus as clear as day-light that Rule 18 which incorporates the principles of natural justice before exercising the power of summary eviction u/s 15 are essential parts of Section 15 itself. In other words, the power of a summary eviction to be exercised by the revenue officer has to be exercised in compliance with Rule 18 which means nothing more than compliance with the principle of natural justice. If the power of summary eviction u/s 15 can be exercised without following the principles of natural justice or in other words, without following the procedure laid down in Rule 18, it would be against the settled law in the country. Hence it has necessarily to be held that Rule 18 is mandatory and the power of summary eviction may be exercised only by following the procedure for summary eviction as laid down in Rule 18 and not otherwise. If in a particular case the power of summary eviction u/s 15 is exercised without following the procedure for summary eviction as laid down in Rule 18, that action would be certainly illegal and without jurisdiction.

In this connection the following observation of the Supreme Court may be appropriately referred:

In Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, the Supreme Court has observed at pages 432-433 as follows:

The contentions on behalf of the State are these. Regulations are framed under powers given by the Statute affecting matters of internal management. Regulations do not have a statutory binding character. Terms and conditions of employees as laid down in the regulations are not a matter of statutory obligations. Regulations are binding not as law but as contract. Regulations have no force of law. Regulations provide the terms and conditions of employment and thereafter the employment of each person is contractual.

The contentions on behalf of the employees are these. Regulations are made under the statute. The origin and source of the power to make regulations is statutory. Regulations are self-binding in character. Regulations have the force of law inasmuch as the statutory authorities have no right to make any departure from the regulations.

Rules, regulations, schemes, bye-laws, orders made under statutory powers are all comprised in delegated legislation. The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority making the rules is after the coming into force of the Act in a better position to adopt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with intertests affected by the practical operation of statutes.

The words ''rules'' and ''regulations'' are used in an Act to limit the power of the statutory authority. The powers of the statutory bodies are derived controlled and restricted by the statutes which create them and the rules and regulations framed thereunder. Any action of such bodies in excess of their power or in violation of the restrictions placed on their powers in ultra vires. The reason is that it goes to the root of the power of such corporations and the declaration of nullity is the only relief that is granted to the aggrieved party.

Subordinate legislation has, if validly made, the full force and effect of a statute. That is so whether or not the statute under which it is made provides expressly that it is to have effect as if enacted therein. If an instrument made in the exercise of delegated powers directs or forbids the doing of a particular thing, the result of a breach thereof is, in the absence of provision to the contrary, the same as if the command or prohibition had been contained in the enabling statute itself. Similarly, if such an instrument authorities or requires the doing of any act, the principles to be applied in determining whether a person injured by the act has any right of action in respect of the injury are not different from those applicable whether damage results from an act done under the direct authority of a statute. Re. Langlois and Biden; and Kruse v. Johnson.

Rules and regulations made by reason of the specific power conferred on the statute to make rules and regulations establish the pattern of conduct to be followed. Rules are duly made relative to the subject-matter on which the statutory bodies act subordinate to the terms of the statute under which they are promulgated. Regulations are in and of the enforcement of the provisions of the statute. Rules and regulations have been distinguished from orders or determination of statutory bodies in the sense that the orders or determination are actions in which there is more of the judicial function and which deal with a particular present situation, Rules and regulations on the other hand are actions in which the legislative element predominates.

There is no substantial difference between a rule and a regulation in as much as both are subordinate legislation under powers conferred by the statute.

In Hukam Chand Shyam Lal Vs. Union of India (UOI) and Others, the Supreme Court has observed as follows:

It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice. Now, in the present case; if the telephones of the Appellants were to be disconnected on the ground of misuse, then they had to give in consonance with the principles of natural justice, opportunity to the Appellants to explain their conduct before taking action under Rule 427 read with Rules 416 and 421. Resort to the wrong and more drastic course provided in Rule 422, on a ground which was not germane to an action under that Rule, vitiates the impugned order, particularly when it is menifest that in making the impugned order, the General Manager was influenced more by this ground and less, if at all, by the existence of ''public emergency'' certified by the Delhi Administration.

For the forgoing reasons we accept these appeals, allow the writ petitions, quash the impugned orders and direct the Respondents to restore the telephone connections to each of these Appellants.

The above case arose out of an order disconnecting telephone on the ground of mis-use.

In the circumstances, we hold that the submission of the learned Counsel for the Respondents to the effect that Rule 18 is only a procedural matter and directory and the power of summary eviction conferred u/s 15 of the Act may be exercised even without following the procedure laid down in Rule 18, has no substance and is not acceptable.

Let us now consider whether the impugned proceeding u/s 15 of the Act and the impugned orders of summary eviction are illegal and without jurisdiction.

We have set out the relevant facts of the case hereinbefore. There is no dispute that the land and some of the structures thereon originally belonged to Amar Chandra Bhattacharyya, who was predecessor-in-interest of Ashit Bhattacharjee. It is also not disputed that after the death of Amar Bhattacharyya, his son (adopted son) Ashit Bhattacharjee inherited the properties and Ashit Bhattacharjee got his name mutated in the Record-of-Rights maintained by the State Government of Tripura, with respect to the land and structures in question and he has been described as " ".

That by a registered sale deed dated 8.11.68 Petitioner No. 1 Samir Barman purchased the land in question and the structures thereon, for a sum of Rs. 27,000/-from Ashit Bhattacharjee and Samir Barman also got his name mutated in the Record of Rights maintained by the Government of Tripura and also has been described as " ". It is also an admitted position that after having purchased the land and structures in question, Samir Barman took loan of a sum of Rs. 25,000/- from the Government of Tripura under Middle Income Group Housing Scheme and a portion of the land in question has been mortgaged in favour of the Government of Tripura, as a security for the loan.

The above facts are not disputed. What happened subsequently was that the Government of Tripura came to know that Amar Bhattacharyya left a Will in respect of his property and that Will was also probated. From the recitals in the Will it was found that Amar Bhattacharyya installed the idols of Gauranga Nityananda on the land in question and in his Will he stated that from the income of his residence in the town the Seva Puja of the deities will be maintained. From the Will it is also clear that after the death of Amar Bhattacharyya his properties would be inherited by his son Ashit Bhattacharjee, who would continue to maintain the Seva Puja. It was also stated that the properties left by Amar Bhattacharyya must not be transferred by way of sale, gift or otherwise. It was also stated in the Will that if there were no legal heir of Ashit Bhattacharjee, then the property would be managed by the State of Tripura.

On the basis of the terms of the Will, an application u/s 11(3) of the Act was filed before the Revenue Court by the State Government on 23rd August 1974 praying for an order in favour of the Government. It was stated therein that Ashit Bhattacharjee was not traceable and heard of for a long period of time and therefore he was presumed to be no more living in the world and that no legal heirs of Ashit Bhattacharjee also could be traced and in accordance with the terms of the Will the management of the property devolved on the State Government.

Section 11 of the Act deals with title of Government to lands, etc. and Sub-section (3) of Section 11 lays down that where any property or any right in or over any property is claimed by or on behalf of the Government, or by any person as against the Government and the claim is disputed, such dispute shall be decided by the Collector whose order shall, subject to the provisions of the Act, be final. Sub-section (4) provides that any person aggrieved by an order made under Sub-section (3) or in appeal or revision therefrom may institute a civil suit to contest the order within a period of six months from the date of such order and the decision of the civil court shall be binding on the parties.

In the proceeding u/s 11(3) of the Act (Misc. Case No. 51/West/74) notice was issued to Samir Barman and he filed an objection petition on 11.6.75 and thereafter on June 28, 1975 he was arrested and since then detained under the Maintenance of Internal Security Act, 1971. On 14th August, 1975, the Additional District Magistrate and Collector, West Tripura, passed an order in favour of the State Government and the operative portion of the order dated 14th August, 1975 is quoted below:

In the result, it is ordered that the alleged transfer of the land in dispute to O.P. No. 1 to 5 being void ab initio, the record of rights be corrected in respect of the lands stated above in favour of the Government of Tripura since the land has vested in the Government.

On 14th August, 1975 itself a petition was filed on behalf of Samir Barman for staying the execution of the order of the Court for three months for bringing stay order from the Civil Court after institution a civil suit. The Additional Collector, however, granted three weeks time only for bringing stay order from the superior Court. It can perhaps be legally presumed that the Additional District Magistrate and Collector, who is a responsible District Officer under the State Government, was aware of the provisions of the Section 80 of the CPC which lays down that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the Secretary to the Government. Sub-section (4) of Section 11 of the Act also has provided that a person aggrieved by an order made under Sub-section (3) of Section 11, or in appeal or revision therefrom may institute a civil suit to contest the order within six months from the date of such order. It can well be said that the period of six months has been fixed keeping in view the period of notice u/s 80 of the Code of Civil Procedure. In the circumstances, the granting of three weeks'' time to bring the stay order from the civil court appears to be hasty and unreasonable. Whatever that may be, the Petitioners filed a civil suit being Title Suit No. 21/75 on 30.09.75 apparently before the period of notice u/s 80, Code of Civil Procedure, could expire. This suit was for a declaration, inter alia, that Samir Barman was the owner of the said land and structures in raiyati right and that Respondent No. 6, State of Tripura had not authority to evict Samir Barman from the land in question on the basis of the impugned order dated 14th August, 1975 and for declaration that the impugned order dated 14th August, 1975 was void ab initio. In the said suit the Plaintiff obtained an injunction order passed by the learned subordinate Judge on 30.9.75 by which the Defendants were restrained from interfering with the possession of the land and buildings of the Plaintiff as mentioned in the Schedule to the plaint till disposal of the suit. In that suit the Defendants were - (1) State of Tripura (2) District Magistrate and Collector, West Tripura, Agartala and (3) Sri C.S. Samal, Joint Secretary, Revenue, Government of Tripura, Agartala. This order of injunction was served on the Defendants on 3.10.75. Notwithstanding the injunction order which was served on 3.10.75, Respondent No. 3, Sub-Divisional Officer, Sadar, Agartala, at the instance of Respondent No. 1 District Magistrate and Collector, West Tripura, initiated a proceeding u/s 15 of the Act against Smt. Maya Barman (Petitioner No. 2), wife of Samir Barman, Prashanta Kumar Mukherjee and Profulla Kumar Mukherjee, the tenants of Samir Barman. This proceeding u/s 15 of the Act was initiated by order dated 6.10.75. We have already quoted the order dated 6.10.75. It is clear from the order that the direction from the District Magistrate and Collector in his letter No. F.15 (4)/DM/REV/4258 dated 6.10.75 was that the vacant possession of the land was to be taken over after evicting the unauthorised occupants immediately. In the order of 6.10.75 it has been stated that Smt. Maya Barman, Prashanta Mukherjee and Profulla Kumar Mukherjee had been in unauthorised occupation of C.S. Plot No. 4867, Khatian No. 1861 (Iza No. 1 Khatian) area measuring 0.189 acres. It has been further stated in that order of 6.10.75 that a proceeding u/s 15 of the Act should be drawn up against the three unauthorised occupiers and notice under Rule 18(1) of the Rules should be served on them to show cause by 3 P.M. on 9th October, 1975.

We have already noticed that the proceeding u/s 11(3) of the Act was against Samir Barman, who was admittedly in possession of the land and the buildings thereon. It is nobody''s case that since the order in the Misc. Case No. 51/West/74 which was passed on 14.8.75 declaring that the properties in question vested in the State Government, Samir Bar-man vacated the possession of the land and the buildings purchased and constructed by him. On the other hand, it is also clear that the Misc. Case No. 51/West/74 was initiated on 23rd August, 1974 and after Samir Barman filed an objection in that proceeding on 11.6.75, he was detained under Maintenance of Internal Security Act, 1971 with effect from 28th June, 1975. There is nothing on record to show that Samir Barman vacated the possession of the land and buildings thereon. On the other hand, it is an undeniable fact that Samir Barman''s wife, Smt. Maya Barman (Petitioner No. 2) and his children and his tenants, Prashanta Mukherjee and Profulla Kumar Mukherjee were in occupation of the land and the buildings thereon. The person who would be in unauthorised occupation, if at all, after the passing of the order in the proceeding u/s 11(3) of the Act, would be Samir Barman primarily and his wife and children and the tenants would come into the picture secondarily. That being so, the notice under Rule 18(1) of the Rules should have first gone to Samir Barman though he might be in the Government Jail as a detenu under the Maintenance of Internal Security Act, 1971. But on the face of the record no notice under Rule 18(1) was either directed to be issued or factually issued to Samir Barman in the proceeding u/s 15 of the Act which was initiated by the Sub-Divisional Officer at the instance of the District Magistrate. It cannot but be presumed that the State Government and its officer, the District Magistrate was aware of the injunction order which was served on 3.10.75. Since we have held that Rule 18(1) of the Rules is mandatory and before a trespasser may be evicted, a notice under Rule 18 has to be served on the person alleged to be trespasser, the order of eviction in that proceeding is wholly without jurisdiction. Rule 18 specifically says that before ordering eviction of a person under Sub-section (1) of Section 15, the competent authority shall issue a notice to him requiring him to show cause within a period to be specified in the notice why he should not be evicted from the land. If the notice required under Rule 18(1) is not issued then the competent authority has no jurisdiction to pass the order of eviction. Without issuing notice against Samir Barman, who claims to be owner of the land and the buildings and against whom the proceeding u/s 11(3) of the Act was drawn up and who has filed Title Suit No. 21/75 challenging the order u/s 11(3) and has obtained an injunction against the State Government and its officials restraining them from evicting him from the land and buildings in question, no order under impugned eviction proceeding can be passed affecting the possession of Samir Barman even though notices were served on the wife and tenants of Samir Barman. The record is equivalent to show that the District Magistrate, Sub-Divisional Officer and the Joint Secretary were all aware that Samir Barman is under detention in the Government Jail with effect from 28.6.75. Service of notice on his wife cannot be pleaded to be service of notice on Samir Barman and in fact this plea has not been taken by the learned Counsel for the Respondents. But the learned Counsel for the Respondents'' submission is that when there is an order u/s 11(3) of the Act is passed against Samir Barman, the order has to be treated as a notice of eviction contemplated under Rule 18(1) of the Rules. Such a submission has to be considered only to be rejected. The order u/s 11(3) of the Act only shows that the Revenue Officer has declared the Registered sale deed in favour of Samir Barman in respect of the land in question to be void ab initio directing correction of record of right holding that the land has vested in the Government. The order has been passed on the basis of interpretation of the Will left by Amar Bhattacharyya. The order does not speak anything about the building that has been constructed by Samir Barman after the purchase of the land and by taking housing loan from the Government. That order is appealable and at the same time the aggrieved party may file a suit within six months from the date of the order. How that order may be treated as a notice to show cause as contemplated under Rule 18(1), even before the period of six months from the date of the order u/s 11(3) has elapsed, is beyond comprehension. In terms the order dated 14th August, 1975 passed u/s 11(3) has not stated that the Petitioner Samir Barman has to be regarded as a trespasser with effect from that date. So the submission of the learned Counsel to the effect that even though no specific notice under Rule 18(1) was issued to Samir Barman, the order dated 14th August, 1975 u/s 11(3) of the Act should be treated as a notice, has no substance.

In the eviction case (No. 33/75) notices were issued to Smt. Maya Barman and the two other tenants. They submitted objections. Sub-rule (2) of Rule 18 of the Rules lays down that if the person concerned files an objection within the period specified in the notice or such extended period allowed by the competent authority, a summary inquiry should be held in the manner laid down in the Schedule III. Sub-rule (3) of Rule 18 provides that if after inquiry the competent authority finds that the person is a trespasser, it shall order his eviction and shall also require him to remove any building or other construction erected or anything deposited on the land within a time specified in the order. Though objections were filed, the Sub-Divisional Officer has not given any finding that the persons filing objections were trespassers. On the other hand, in his order dated 6.10.75 by which the proceedings u/s 15 of the Act were initiated, he has already held that Smt. Maya Barman, Prashanta Mukherjee and Profulla Kumar Mukherjee were in unauthorised occupation of the land in question. This is not in any way in compliance with Rule 18 of the Rules. Without issuing notice to the real person in occupation of the land and before issuing notices to the persons who are in possession under Samir Barman, the Sub-Divisional Officer has found that the wife of Samir Barman and his tenants are in unauthorised occupation. This is simply evading and avoiding Rule 18 in order to resort to summary eviction by hook or crook.

In the order of 6.10.75 there is a reference to the letter dated 6.10.75 of the D.M. & Collector (West) which reads as follows:

No. F. 15(4)/DM/REV/4258/75

Dated, Agartala, the 6th October 1971.

To

The Sub-Divisional Officer, Sadar,

Sub: Correction of record of right.

Ref: This office No. 3682/DM/REV/1975 dt.5.9.75

your office No. 4266/SDO/SDR/75 dt. 10.9.75.

Sir,

With reference to the above, you are requested to please take over vacant possession of the land after evicting the unauthorised occupants imediately.

Action taken may please be communicated to this office.

Yours faithfully, Sd/- Ajoy Sinha, District Magistrate and Collector, West Tripura, Agartala.

This shows that there was a direction from the District Magistrate and Collector to the Sub-Divisional officer to take immediate possession of the land in question evicting unauthorised occupants.

u/s 93(1)(b) of the Act an appeal lies from an original order passed under the Act by the Sub-Divisional Officer, to the Collector. That being so, the Collector in the instant case cannot act as the appellate authority against any order passed by the Sub-Divisional Officer in the eviction case No. 33/75, because it was under the direction of the District Magistrate and Collector, the Sub-Divisional Officer drew up proceeding for immediate eviction of the unauthorised occupants. In the circumstances, the question of resorting to alternative remedy by way of appeal before coming to this Court in writ Jurisdiction against the Sub-Divisional Officer''s orders in the eviction case No. 33/75, appears to be meaningless. In view of the order dated 6.10.75 in accordance with which the eviction proceeding has been initiated, the Collector on the doctrine or bias has disentitled himself to be the appellate authority in this matter.

By order dated 6.10.75 by which the proceeding u/s 15 of the Act has been initiated, the Sub-Divisional Officer has already held that Smt. Maya Barman, Prashanta Mukherjee and Prafulla Kumar Mukherjee to whom notices were issued, were in unauthorised occupation as found by the District Magistrate and Collector in his letter No. F. 15 (4)/DM/REV/4258 dated 6.10.75. Then again the land in question which is the subject matter of the order dated 6.10.75 was in possession of Samir Barman on that date and Samir Barman had his own R.C.C. Buildings etc. thereon. But no notice was issued to Samir Barman. Section 15 read with Rule 18 of the Rules requires that after issuing notice the competent authority should come to a finding that the person concerned is a trespasser. Thus the order dated 6.10.75 initiating the proceeding u/s 15 was in complete violation of the provisions of Rule 18(1) and Rule 18(2) of the Rules and the matter left to be decided by the competent authority u/s 15 read with Rule 18 has not been decided by the competent authority. In other words, the duty that was required to be performed by the Sub-Divisional Officer in initiating the proceeding u/s 15 read with Rule 18 was not performed by him but he passed the order dated 6.10.75 initiating the proceeding at the dictation of his superior officer-the District Magistrate and Collector, who is the appellate authority under the Act against the orders passed under the Act.

In State of Punjab and Others Vs. Bhai Ardaman Singh and Others etc., the Supreme Court has observed while considering Section 43 of the Pepsu Tenancy and Agricultural Lands Act as follows:

We must point out that the proceedings of the Collector are judicial in character. The trial is summary, but the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction, as the Commissioner assumed, but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment. When the condition precedent to the exercise of jurisdiction does not exist, the Collector cannot clothe himself with authority to pass the impugned orders.

In State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, at page 1271 the Supreme Court has observed as follows:

It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitray authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

It is well settled that if the principles of natural justice are violated the order becomes a nullity.

Thus we find that the impugned order dated 6.10.75 initiating the proceeding u/s 15 of the Act is illegal and without jurisdiction for non-compliance with the mandatory provisions of Rule 18 of the Rules and also for not performing the duty by the Sub-Divisional Officer as required u/s 15 read with Rule 18. That being the position, the subsequent orders passed in the eviction proceedings including the orders dated 9.10.75 and 10.11.75 by which the order was passed to take vacant possession of the land in question forthwith are illegal and without jurisdiction.

Another fact is also apparent from the record that there is some determination on the part of the Sub-Divisional Officer in complicity with the District Magistrate and Col lector to get vacant possession of the land in question hurriedly with scant or no regard for rules of procedure of a Court even that of a Revenue Court. From the order dated 10.10.75 passed in the eviction proceeding it is found that the fact of the injunction order issued by the Subordinate Judge restraining the Defendants from disturbing possession of Samir Barman was brought to the notice of the Sub-Divisional Officer by a petition filed on behalf of Samir Barman (in Jail custody) and the Sub-Divisional Officer, in view of the submission made before him, stayed the proceedings and the operation of all notices issued from his Court, till 20.11.75. Then on receiving the letter No. 4631-34/DM/REV/W/75/F.5-3 dated 7.11.75 from the District Magistrate and Collector, West Tripura by which the Sub-Divisional Officer was informed that the next date of hearing of Title Suit No. 21/75 was fixed on 10.11.75 the Sub-Divisional Officer without any notice to the present Petitioners or the other persons to whom notices were issued in the eviction proceeding changed the date from 20.11.75 to 10.11.75 by his order dated 7.11.75.

It may also be observed that the Sub-Divisional Officer has not vacated his order dated 10.10.75 by which the proceedings and the operation of all notices issued from his Court were stayed till 20.11.75. The order dated 10.10.75 was passed in presence of the opposite parties in the eviction case but the order dated 7.11.75 by which the date was changed, was passed in absence of the opposite parties in the Eviction Case on receipt of a letter from the District Magistrate and Collector, West Tripura.

On 10.11.75 the Sub-Divisional Officer passed three successive orders. We have already quoted the orders dated 7.11.75 and the three orders dated 10.11.75 passed by the Sub-Divisional Officer. These three orders of 10.11.75 are found to have been passed between the hours 2 P.M. and 3.30 P.M. By the first order dated 10.11.75 which must have been passed after 2 P.M. the Sub-Divisional Officer directed issue of notice under Rule 18(3) on the opposite parties to vacate possession forthwith. The service report of the notices was received at 2.30 P.M. and Shri N.K. Roy, S.D.C. along with the Surveyor was directed to take over the possession of the land described in the proceeding, which appears from the second order of 10.11.75. From the third order of 10.11.75 it is found that in the meantime Shri N. K. Roy, S.D.C. submitted report that vacant possession has been taken over by him by 3.30 P.M. as the an-authorised occupants vacanted the premises in question voluntarily. The report submitted by Shri N. K. Roy, S.D.C, Sadar, Agartala is in the record and it is found that the report was signed by Shri N.K. Roy on 10.11.75 but it was received in the office of the Sub-Divisional Officer on 11.11.75 under receipt No. 1278. From the report of Shri N.K. Roy, S.D.C. dated 10.11.75 it is found that the SDC along with Surveyor Shri Jnan Chandra Das went to the spot to take over vacant possession at about 2.30 P.M. The second order of 10.11.75 shows that the service return of notice was received by the Sub-Divisional Officer at 2.30 P.M. and thereafter SDC Shri N.K. Roy along with Surveyor was directed to take over possession. In the first order of 10.11.75 the Sub-Divisional Officer has referred to letter No. F.5-3/DM/REV/W/75/4636-39 dated 10.11.75 to have been received at 2 P.M. The original letter dated 10th November 1975 is found in the record and it is seen that this letter dated 10.11.75 was signed on 9.11.75 by or on behalf of the District Magistrate and Collector, West Tripura.

Since we have already held that the initiation of the impugned eviction proceeding and the impugned orders passed in that proceeding by which the Petitioners have been evicted are illegal and without jurisdiction, we are not required to enter into detailed discussion of the above facts as appear from the record but it can safely be observed that there was some undue and unauthorised haste on the part of the Revenue Officer concerned in taking over possession of the land and buildings in question in complete disregard of the provisions of Section 15 read with Rule 18.

The learned Counsel for the Petitioners has submitted that while the impugned orders of eviction were passed the injunction order passed by the Civil Court was in force and therefore the Sub-Divisional Officer acted in violation of the injunction order.

We have already noticed that--an injunction order was passed in Title Suit No. 21/75 on 30.9.75 which was served on the Defendants on 3.10.75. Thereafter Title suit No. 21/75 was withdrawn on 10.11.75 and on the same date, that is, 10.11.75 the other suit being Title Suit No. 23/75 was filed and on the same date Anr. injunction order was passed restraining the Defendants from interfering with the possession of the Plaintiff in respect of the land and the buildings described in the schedule to the plaint.

It has also been submitted by the learned Counsel for the Petitioner that the Plaintiff has prayed for action against the officers who have acted in violation of the injunction order. This matter is, it is submitted, pending before the subordinate judge. That being the position we should not enter into the question of breach of injunction order issued by the Civil Court at all.

In the circumtances, we find that the impunged proceeding u/s 15 of the Act, that is, eviction Case No. 33/75 and the impunged orders of eviction and the order directing taking over vacant possession of the land and the buildings in question are illegal and without jurisdiction and accordingly we quash the eviction proceeding in Eviction Case No. 33/75 as well as the orders including the orders dated 6.10.75, 7.11.75 and 10.11.75.

The next question that arises for consideration is whether the Petitioners are entitled to restoration of possession.

We find that the eviction proceeding and the orders by which the Petitioners have been evicted are illegal and without jurisdiction and they are non est in the eye of law. The action of eviction of the Petitioners from the land and buildings in question is not an act of State. The eviction proceedings and the orders for eviction passed therein are not supportable by law and we find that the action of the State is clearly in violation of Article 31(1) of the Constitution. Under these circumstances whether the Petitioners are entitled to restoration of possession.

In Bishan Das and Others Vs. The State of Punjab and Others, the Supreme Court has observed as follows on the facts of that case:

Before we part with this case, we feel it out duty to say that the executive section taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on his piece of Government land did not belong to Government, (2) that the Petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the Petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the Petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand Vs. The State of Himachal Pradesh, the State or its executive officers cannot interfere with the rights of other unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi and Another Vs. The State of Bihar and Others, this Court said that nothing is more likely to drain the vatality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the Ors. . We have here a highly discriminatory and autocratic agt which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahi''s case (supra), remarkable for their disturbing implications.

In the same case the Supreme Court has observed as follows:

The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das. built the dharmasala. temple and shops and managed the same during his life time. After his death the Petitioners, other members of the joint family, continued the management. On this admitted position the Petitioners cannot ho held to be trespassers in respect of the dharmasala. temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an effective fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakur Chunder Parmanick v. Ramdhone Bhattacharjee 6 Suth WR 228, Pani Ram v. Kundal Lall 26 IA 58 and AIR 1927 135 (Privy Council) These decisions show that a person who bona fide puts up constructions on land belonging to Ors. with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicruid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State though that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State''s Legal Remembrancer. It is well recognised that a suit u/s 92, CPC may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is claim to be owners of the property, or against persons who deny the validity of the trust.

*** *** *** Those orders must be quashed and the Respondents must now be restrained from interfering with the Petitioners in the management of the dharmasala, temple and shops. A writ will now issue accordingly.

In the instant case it is an admitted position that Samir Barman, after taking housing loan from the Government to the extent of Rs. 25,000/-, constructed some R.C.C. building on the land in question. This building is recorded in his name and the Government does not make any claim to the building at all.

Section 15(1) of the Act provides that the competent authority should give some reasonable time to the person concerned to remove any building or other construction erected or anything deposited on the land in question. Sub-rule (3) of Rule 18 also requires that after the person has been adjudged as a trespasser he should be directed to remove any building or other construction erected or anything deposited on the land within a time specified in the order.

In the instant case nothing has been stated regarding the buildings in the impugned eviction order. On the other hand, it is found that possession has been taken over with Police help in an electric speed without giving any opportunity to Petitioner No. 1 to show cause that he was not liable to be evicted. There is not even semblance of an order passed under any provision of law regarding taking over vacant possession of the buildings from the Petitioners.

We have already found that the eviction proceedings and the orders therein are illegal and without jurisdiction. That being the position, if the Respondents are not directed to restore possession of the land and buildings in question to the Petitioners, it would be on our part, an unjust and unreasonble refusal to exercise jurisdiction and discretion vested in the High Court by the Article 226 of the Constitution.

In view of the facts and circumstances of the case and settled positions of law as discussed hereinabove, and for the ends of justice and the dignity of the individual in a welfare State like ours where Rule of Law reigns supreme, there is no other alternative but to issue a direction for restoration of possession of the land in question and the buildings and structures thereon.

Hence we do not find any substance in the last submission of the learned Counsel for the Respondents that even if the eviction proceedings and the impugned orders therein are found to illegal and without jurisdiction, there cannot be any order of restitution.

In the circumstances the impugned eviction proceedings in Eviction Case No. 33/75 and the impugned orders of eviction passed therein including the orders dated 6.10.75, 7.11.75 and 10.11.75 are quashed. We further direct that the Respondents shall restore possession of the land and buildings in question to the Petitioners within two weeks from today.

In the result this petition is allowed and the Rule is made absolute. The Respondents shall pay costs of this petition to the Petitioners, which we assess at Rs. 200/-.