Gauhati High Court
On The Death Of Haladhar Deka Alias Dr. ... vs The State Of Assam And Ors on 29 April, 2019
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
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GAHC010216392011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6429/2011
1:ON THE DEATH OF HALADHAR DEKA ALIAS DR. LATE HALADHAR
DEKA, HIS LEGAL HEIRS SMTI CHANDRA PRAB
WIFE OF LATE HALADHAR DEKA,
2: SRI DEEPANKAR DEKA
SON OF SRI HALADHAR DEKA
3: SRI SASHANKA PRATIM DEKA
SON OF LATE HALADHAR DEKA. ALL ARE RESIDENT OF RAJGARH ROAD
BYE LATE NO. 10
GUWAHATI- 781003 IN THE DISTRI T OF KAMRUP METRO
ASSA
VERSUS
1:THE STATE OF ASSAM AND ORS
REP. BY THE COMMISSIONER AND SECRETARY OF THE GOVT. OF ASSAM,
REVENUE DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DEPUTY SECRETARY TO THE
GOVT. OF ASSAM
REVENUE SETTLEMENT
DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISSIONER
KAMRUP METROPOLITAN DISTRICT
PANBAZAR
GUWAHATI-1.
4:THE DEPUTY COMMISSIONER
KAMRUP RURAL
AMINGAON NORTH GUWAHATI.
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5:THE CIRCLE OFFICER
NORTH GUWAHATI REVENUE CIRCLE
AMINGAON
6:THE OFFICER IN-CHARGE
KAMALPUR POLICE STATION
AMINGAON
NORTH GUWAHATI.
7:THE ASSAM BOARD OF REVENUE
PANBAZAR
GUWAHATI-1
REPRESENTED BY ITS CHAIRMAN.
8:ON DEALTH OF PHUKAN BORO
HIS LEGAL HEIRS A SRI PRABIN CHANDRA BORO B SMT. PADUMI BORO
C SMT. NIRU BORO D SMT. RINA BORO ALL ARE RESIDENTS OF
SILAMAHEKHAITI BAMUNIGAON
P.O. AMINGAON
P.S. JALUKBARI
KAMRUP RURAL
ASSAM
Advocate for the Petitioner : MR.S SARMA
Advocate for the Respondent : MD.I ALI
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 29-04-2019 Heard Mr. S. Sharma, learned counsel assisted by Mr. T.K. Bhuyan, learned counsel for the petitioners; Ms. M. Bhattacharjee, learned Govt. Advocate, Assam; Mr. P.S. Deka, learned Standing Counsel, Revenue Department, Govt. of Assam; and Mr. R. Sharma, learned counsel for respondent Nos.8(a) to 8(d).
2. By filing this petition under Article 226 of the Constitution of India, petitioner No.1 seeks quashing of order dated 07.02.2011 passed by the Assam Board of Revenue in Case No.12RA(K)(RVW)/2008 and seeks a direction to the official respondents to cancel the subsequent settlement of land in favour of respondent Nos.8(a) to 8(d).
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3. During pendency of the writ petition, petitioner No.1 expired whereafer he has been substituted by his legal heirs following which petitioners have been re-arranged as petitioner Nos. a, b and c respectively.
4. Case of petitioner No.1 is that he was the owner and possessor of a plot of land measuring 1 katha 10 lechas covered by Dag No.585, Periodic Patta No.870 of Natun Town Sarania under Ulubari Mouza, Guwahati city. The said land was acquired for public purpose. A proposal was made by Government of Assam to compensate petitioner No.1 with 1 bigha of Government land covered by Dag No.159 Annual Patta No.26 of village Sila Mahekhaiti under Sila Sinduri Ghopa Mouza in the district of Kamrup (Rural). The said proposal of the Government was accepted by petitioner No.1.
5. Following the same, Government of Assam settled 1 bigha of Government land covered by said Dag and Patta with petitioner No.1 vide Government letter dated 10.03.1989 leaving aside the land for National Highway and passage from the National Highway. Possession of the said 1 bigha of land was handed over to petitioner No.1 on 07.04.1989.
6. According to the petitioners, Dag No.159 comprised of land measuring 3 bighas 2 kathas. This dag number was bifurcated into two dags being Dag Nos.159(ka) and 159(kha). Dag No.159(kha) comprised of land measuring 1 bigha which has since been settled with petitioner No.1.
7. This dag number was corrected as Dag No.360(new) K.P. Patta No.65 (new) whereafter patta was issued in favour of petitioner No.1.
8. According to the petitioners, Government valuation of the land which was acquired by petitioner No.1 was much higher @ Rs.80,000.00 per katha. For 1 katha 10 lechas acquired, valuation was Rs.1,20,300.00. On the other hand, valuation of 1 bigha of land at village Sila Mahekhaiti under Sila Sinduri Ghopa Mouza settled with the petitioner No.1 was Rs.17,029.00 only.
9. As there was excess land in addition to 1 bigha of land settled with the petitioner No.1, a representation was made by petitioner No.1 on 18.03.1994 for settlement of 4 kathas of additional land to partially compensate the loss suffered by petitioner No.1.
10. According to the petitioner No.1, some persons encroached upon the land settled with him which led to proceedings under Sections 145/146 Cr.PC. In that proceeding, petitioner Page No.# 4/10 No.1 was the first party whereas Md. Bhoinur Ali and Nizan Ali were the second party. Second party admitted that in the year 1976, second party had purchased land measuring 1 bigha 3 kathas covered by Dag No.159, A.P. Patta No.26 of Sila Mahekhaiti village out of 3 bighas 2 kathas of land along with one Rohini Goswami from the pattadar Rakho Kachari by registered sale deed.
11. Sub-Divisional Magistrate passed order dated 26.02.2003 in the proceedings under Sections 145/146 Cr.PC declaring possession of petitioner No.1 over the disputed land and directed restoration of possession. Accordingly, possession of the disputed land was handed over to petitioner No.1 on 04.05.2003.
12. Legal heirs of Rakho Kachari, i.e., late Phukan Boro made application dated 02.04.2003 before the Circle Officer, North Guwahati Revenue Circle for restoration of lands measuring 3 bighas 2 kathas covered by Dag No.159 and 1 katha 7 lechas of Dag No.160, totaling 3 bighas 3 kathas 7 lechas of Annual Patta No.26 of village Sila Mahekhaiti under Sila Sinduri Ghopa Mouza in his name which was made Government land in view of alienation of such land by the annual pattadar.
13. On receipt of such representation, Case No.KRS 367/2003 was registered by Deputy Commissioner, Kamrup (Rural). However Lat Mandal submitted report dated 24.04.2003 before the Circle Officer, North Guwahati Revenue Circle stating that applicant (Phukan Boro) was possessing and enjoying the said land. Late Phukan Boro thereafter moved Assam Board of Revenue (Board) in Case No.54 RA (K)/2005 seeking a direction to the Deputy Commissioner, Kamrup for expeditious disposal of Case No.KRS 367/2003. Board disposed of the appeal vide order dated 05.04.2005 by directing the Deputy Commissioner, Kamrup (Rural) to dispose of the said case within three months.
14. Deputy Commissioner, Kamrup (Rural) thereafter passed the order dated 14.07.2005 stating that land measuring 2 bighas 1 katha of Dag No.159 and land measuring 1 katha 7 lechas of Dag No.160 of village Sila Mahekhaiti under Sila Sinduri Ghopa Mouza would stand restored to the original pattadar subject to payment of arrear revenue and cost of the proceeding. This order was passed taking resort to Regulation 90 of the Assam Land and Revenue Regulations, 1886.
15. Petitioners have alleged that late Phukan Boro again tried to dispossess petitioner No.1 from the settled land for which petitioner No.1 filed application under Sections 145/146 Page No.# 5/10 Cr.PC in which proceeding late Phukan Boro was arrayed as second party. The case was registered as Case No.74(N)/2005. Sub-Divisional Magistrate, Kamrup, Guwahati passed order dated 02.07.2005 and attached the disputed land prohibiting both the parties from entering into the same. Against the said order, revision petition was filed by late Phukan Boro before the Court of District and Sessions Judge, Kamrup wherein attachment order was stayed. However, finally by judgment and order dated 22.11.2006, revision petition was dismissed.
15.1. It is also stated that Phukan Boro had instituted Title Suit No.747/2006 which was duly contested by petitioner No.1 by filing written statement and counter claim. The suit was dismissed for default on 03.12.2007 whereas counter claim filed by petitioner No.1 is pending.
16. Be that as it may, petitioner No.1 challenged the legality and correctness of the order dated 14.07.2005 passed by the Deputy Commissioner, Kamrup (Rural) in Case No.KRS 367/2003 before the Board by filing appeal under Regulation 147 of the Assam Land and Revenue Regulations, 1886. The appeal was registered as Case No.111 RA(K)/2006. Board vide judgment and order dated 18.06.2008 allowed the appeal of petitioner No.1 and set aside the order of the Deputy Commissioner dated 14.07.2005.
17. Late Phukan Boro thereafter filed an application for review of the judgment and order dated 18.06.2008 which was registered as Case No.12 RA(K)(RVW)/2008. Review petition was duly contested by petitioner No.1.
18. Board vide order dated 07.02.2011 allowed the review petition by setting aside the judgment and order dated 18.06.2008 thereby dismissing the original appeal and upholding the order dated 14.07.2005 passed by Deputy Commissioner, Kamrup (Rural) in Case No.367/2003.
19. Aggrieved, present writ petition has been filed.
20. Contention of the petitioners is that annual patta of Phukan Boro was cancelled by the Government in view of alienation of the land. However, Deputy Commissioner instead of proceeding on the above basis, had erroneously relied upon Regulation 90 which provision is applicable only in cases of arrears of land revenue. This aspect of the matter was not considered by the Board while allowing the review petition.
21. This Court vide order dated 21.12.2011 had issued notice and passed an interim order Page No.# 6/10 to the effect that no transfer or alienation or mutation of the concerned land should be made in the meanwhile.
22. Respondents have filed affidavit.
23. Respondent No.4, i.e., Deputy Commissioner, Kamrup (Rural) in his affidavit filed on 23.07.2012 has taken the stand that total land covered by original Dag No.159 of Annual Patta No.26 of village Sila Mahekhaiti was 3 bighas 2 kathas. Original pattadar was Rakho Kachari. After his death, name of his son Phukan Boro was mutated in respect of the said land. Out of the said land, land measuring 1 katha 7 lechas covered by Dag No.160 of the same annual patta was made Government land on 21.05.1985 on account of transfer of possession. Following Government order and consequential order of the Deputy Commissioner, 1 bigha of land out of total 3 bighas 2 kathas of land covered by Dag No.159 was settled with Haladhar Deka i.e., petitioner No.1 and the settled part was included in Periodic Patta No.65, new Dag No.360. Board vide order dated 05.04.2005 had directed Deputy Commissioner, Kamrup to dispose of the representation of Phukan Boro for restoration of patta.
23.1. In compliance to such direction, Deputy Commissioner, Kamrup passed the order dated 14.07.2005 restoring only settlement of an area of land measuring 2 bighas 1 katha covered by Dag No.159 and land measuring 1 katha 7 lechas covered by Dag No.160, both under earlier Annual Patta No.26 in favour of late Phukan Boro.
23.2. In the above circumstances, respondent No.4 has contended that 1 bigha of land settled with Haladhar Deka (original petitioner No.1) is no way connected with the matter relating to restoration of annual patta of Phukan Boro as the 1 bigha of land settled with Haladhar Deka was separated from Dag No.159.
24. Respondent Nos. 8(a) to 8(d) have filed a common affidavit supporting the judgment and order dated 07.02.2011 passed by the Board in review. It is contended that petitioner No.1 was settled with 1 bigha of land in lieu of his land which was acquired by the Government. However, the said respondents have disputed the further claim of petitioner No.1 to 4 kathas of additional land of Dag No.159(kha) to partially compensate the loss suffered by him.
24.1. The said respondents have asserted that in addition to 1 bigha of land settled with Page No.# 7/10 petitioner No.1 and some land earmarked for widening National Highway, there is further land measuring 1 bigha 4 kathas 10 lechas which is in possession of the said respondents right from the days of their predecessor-in-interest. It is stated that there is no excess land in Dag No.159 for allotment of additional land to petitioner No.1. Respondents have denied that neither they nor their predecessor-in-interest have encroached upon the said 1 bigha of land allotted to and settled with petitioner No.1. Further stand taken is that annual patta granted in favour of predecessor-in-interest of the respondents was annulled not for alienation of land but for non-payment of land revenue.
25. Elaborate submissions have been made by learned counsel for the parties which have been duly considered.
26. By letter dated 10.03.1989, Deputy Secretary to the Government of Assam, Revenue (Settlement) Department had informed Deputy Commissioner, Kamrup that the Governor of Assam was pleased to order settlement of a plot of Government land measuring 1 bigha covered by part of Dag No.159 of village Sila Mahekhaiti under Sila Sinduri Ghopa Mouza with petitioner No.1 in exchange of land measuring 1 katha 10 lechas covered by old Dag No.585 of old Periodic Patta No.870 of Natun Town Sarania. Deputy Commissioner was requested to handover possession of the settled land with petitioner No.1 leaving aside the land for National Highway and passage for National Highway. Materials placed on record disclose that thereafter possession of the said 1 bigha of land was handed over to petitioner No.1 on 07.04.1989.
27. There is no other document on record to show that any additional land beyond 1 bigha was settled or proposed to be settled with petitioner No.1.
28. In Case No.KRS 367/2003, Deputy Commissioner, Kamrup was considering the prayer of late Phukan Boro for restoration of annual patta in his name in respect of land measuring 2 bighas 1 katha of Dag No.159 and land measuring 1 katha 7 lechas of Dag No.160. Deputy Commissioner referred to Regulation 90 and observed that the annulled land could be re-settled with the defaulting pattadar subject to payment of arrear revenue and cost of the proceeding. Accordingly, it was ordered that the aforesaid land be restored to the original patta subject to payment of arrear revenue.
29. This order of the Deputy Commissioner dated 14.07.2005 was assailed by petitioner No.1 in appeal before the Board which was allowed vide judgment and order dated Page No.# 8/10 18.06.2008. Relevant portion of the judgment and order dated 18.06.2008 is extracted hereunder:-
"15. According to Section 90(2) note 6(i), no land settlement of which has been annulled on account of arrears will be resettled with the defaulter or with any member of a joint family to which the defaulter belongs with (without) the special sanction of the Deputy Commissioner or Sub-Divisional Officer. Such sanction will not be given unless and until arrears on account of which the settlement has been annulled have been paid with all cost of proceeding taken for their realization. In the impugned order of the Deputy Commissioner, there is no mention that the defaulters had paid all the arrear on account of which the settlement was annulled along with all cost of proceedings. Deputy Commissioner restored the land subject to the payment of all arrear and cost of proceeding. Deputy Commissioner's impugned order is not according to the prescribed law and the same is not permissible. Therefore, as the Deputy Commissioner, Kamrup's order is not in accordance with the relevant law, the same is not maintainable and is liable to be set aside, which I do."
30. From the above, it is seen that Board did not find fault with the Deputy Commissioner in acting on Regulation 90. All that the Board held was that Deputy Commissioner had not mentioned that the defaulters had paid the land revenue arrears on account of which patta was annulled. It was further held that Deputy Commissioner had restored the land subject to payment of all arrears and costs of proceeding which was not according to the prescribed law and it was not permissible. Accordingly, it was held that the order of the Deputy Commissioner was not maintainable and was set aside.
31. Therefore, both the Deputy Commissioner and the Board had proceeded on the basis that it was a case under Regulation 90. This finding of both the revenue authorities is a finding of fact.
32. At this stage, Regulation 90 of the Assam Land and Revenue Regulations, 1886 may be adverted to. Regulation 90 deals with annulment of settlement. As per Regulation 90, in case of non-payment of land revenue and if the process provided for recovery of arrears of land revenue is not sufficient, Deputy Commissioner may by proclamation published in the prescribed manner annul existing settlement of the estate and relinquish claim of the Government to the arrear of land revenue. As per the proviso, if the arrear is in respect of an estate in which the settlement holder has a permanent, heritable and transferable right to use and occupancy, Deputy Commissioner shall not unless directed by the State Government Page No.# 9/10 annul settlement without sanction of the State Government. However, as per note 6(i), no land, settlement of which has been annulled on account of arrears will be resettled with the defaulter or with any member of a joint family to which the defaulter belongs without special sanction of the Deputy Commissioner or Sub-Divisional Officer. Such sanction will not be given unless and until arrears on account of which settlement has been annulled have been first paid with all costs of proceedings taken for their realization.
33. Pausing here for a moment, it is seen that both Deputy Commissioner as the authority of the first instance and the Board as the final revenue authority had accepted the position that it is a case covered by Regulation 90 meaning thereby that annulment was on account of non-payment of land revenue, recovery process of which was not sufficient. Therefore, annulment of annual patta was resorted to by the Deputy Commissioner.
34. While Deputy Commissioner had set aside annulment subject to payment of arrears and cost by the respondents, Board in appeal held that without first paying arrears and cost, such order cancelling annulment could not have been passed by the Deputy Commissioner. This is the only point of difference between the Deputy Commissioner and the Board; difference was not whether Regulation 90 was applicable or not; difference was regarding the manner of applicability of Regulation 90.
35. At this stage, it may also be relevant to note that though respondent No.4 in his affidavit has stated that land in question was made Government land for transfer of possession, no corresponding order to that effect has been annexed to the affidavit of respondent No.4. But crucially respondent No.4 has taken the stand that the land settled with petitioner No.1, i.e., 1 bigha and the annual patta land of the respondents which was annulled and thereafter restored are two different plots of land unconnected with each other.
36. In review, Board held that review petitioner had made payment of all arrears and costs of the proceeding immediately after Deputy Commissioner had passed the order dated 14.07.2005. Therefore, it was held that appellate judgment and order dated 18.06.2008 suffered from an error apparent on the face of the record. It was further held that Deputy Commissioner had clearly ordered that restoration of the annual patta would be done only after payment was made which was in accordance with note 6(i) of Regulation 90. Therefore, appellate judgment was set aside. While dismissing the appeal, order of the Deputy Commissioner dated 14.07.2005 was upheld.
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37. As noted above, when the Board passed the appellate order on 18.06.2008, petitioner No.1 accepted the same. In other words, basis on which the Board had set aside the order of the Deputy Commissioner was accepted by petitioner No.1. If that is the position, then challenge to the setting aside of the said order on review on the ground that Board had erred in not properly appreciating the order of the Deputy Commissioner in the light of Regulation 90 cannot be sustained. That apart, there is no dispute that 1 bigha of land settled with petitioner No.1 in lieu of 1 katha 10 lechas of land acquired is in occupation of petitioner No.1 and his legal heirs. There is no claim by the respondents over the said land. Claim of respondents is to the lands measuring 2 bighas 1 katha and 1 katha 7 lechas which as per the revenue authorities are distinct and separate from 1 bigha of land settled with petitioner No.1. If the lands are distinct and separate as above, neither petitioner No.1 nor his legal heirs can be said to be persons aggrieved in law to question cancellation of annulment of annual patta in favour of predecessor-in-interest of the respondents. Moreover, petitioners have not pleaded that there was difficulty in demarcation of 1 bigha of land settled with petitioner No.1.
38. In such circumstances, Court is of the view that claim of the petitioners beyond 1 bigha of land settled with petitioner No.1 is legally unsustainable. Writ petition so filed is misconceived and is accordingly dismissed.
39. Interim order passed earlier stands vacated.
JUDGE Comparing Assistant