Gauhati High Court
Dipak Kumar Choudhury vs The State Of Assam And Ors on 6 May, 2014
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT PETITION (C) NO. 3973/2009
1. Dipak Kumar Choudhury,
S/o. Late Prabin Choudhury,
Resident of Seuj Nagar, Beltola,
P.S. Basistha, Guwahati
In the District of Kamrup, Assam.
- Petitioner.
-VERSUS-
1. The State of Assam,
Represented by the Commissioner & Secretary,
Revenue Department, Dispur, Guwahati-6.
2. The Assam Board of Revenue,
Panbazar, Guwahati-1.
3. Smti Sagarika Basumatary,
Wife of Sri Padmeswar Basumatary,
Resident of Satgaon, Guwahati,
P.S. Satgaon,
In the District of Kamrup, Assam.
- Respondents.
BEFORE HON'BLE MR JUSTICE HRISHIKESH ROY For the Petitioner: Mr. K Sarma, Advocate & Mr. D Das, Advocate.
For the Respondents: Mr. J Handique, Govt. Advocate.
Dr. G Lal, Advocate.
Date of hearing & order: 06.05.2014.
JUDGEMENT AND ORDER ( ORAL)
Heard Mr. K Sarma, learned counsel appearing for the petitioner. The State respondents are represented by Mr. J Handique, the learned Govt. Advocate, while the respondent No.3 is represented by Dr. G Lal, Advocate.
2. The matter pertains to a mutation dispute and the petitioner challenges the judgment dated 20.8.2009 (Annexure-5) in Case No.R.A.(K)- 11/2009, rendered by the Assam Board of Revenue (hereinafter referred to as 'the Revenue Board'), whereby the Appeal filed by the respondent No.3 against the order of the Settlement Officer dated 31.12.2008, granting 2 mutation to the petitioner was allowed and the impugned order of the Settlement Officer was quashed by the Revenue Board.
3. The original pattadar of the land measuring 5 Bighas 10 Lechas covered by Dag No.565 of Periodic Patta No.32 of village Hengrabari under Beltola Mouza was Late Hema Prabha Choudhury, wife of Late Rohini Kumar Choudhury. The petitioner bases his claim as the grandson of the original pattadar, through his father Late Prabin Choudhury.
4. On the other hand, the respondent No.3 Smti Sagarika Basumatary purchased the land through two sale deeds dated 4.9.2007 and 11.9.2007, executed by the three vendors, namely, Renu Das, Dwijen Das and Bikramjit Kakati through their attorney Padmeswar Basumatary. Earlier these 3 vendors purchased the land in the year 1987 from Naren Sarma and the 3 purchasers were granted chitha mutation of the purchased land on 18.2.2000. The vendor Naren Sarma derived title through the sale deed No.6580 of 1984 executed by Dhiren Choudhury, who too is a son of the original pattadar Late Hema Prabha Choudhury.
5. After the respondent No.3 came to possess the land in the year 2007 through the two sale deeds executed in her favour, chitha mutation was granted on 16.10.2007 on the basis of her possession. But claiming to be ½ owner of the land purchased by the respondent No.3 Smti Sagarika Basumatary (who derived title from Late Dhiren Choudhury, son of Late Hema Prabha Choudhury), the petitioner gave an application on 26.11.2007 (Annexure-1) before the Settlement Officer, Guwahati for mutation of his share of the land as the ½ owner of the family land owned by his grandmother Hema Prabha Choudhury. But although in the meantime the entire land measuring 5 Bighas 10 Lechas was mutated on 16.10.2007 in favour of the purchaser Sagarika Basumatary (respondent No.3), the petitioner omitted to mention the chitha mutation granted to the bonafide purchaser. More importantly the recorded land owner who was in possession of the purchased land was not even mentioned in the application filed by the petitioner on 26.11.2007 (Annexure-1) before the Settlement Officer.
6. The petitioner's application for mutation was registered as Misc. Case No.59/07-08 and the Settlement Officer through his judgment dated 31.12.2008 (Annexure-2) concluded without any material that the original pattadar Late Hema Prabha Choudhury had two sons, namely, Dhiren 3 Choudhury and Prabin Choudhury (ignoring the other 5 sons) and that the petitioners father Prabin Choudhury is ½ owner of the 5 Bighas 10 Lechas land owned by Late Hema Prabha Choudhury. Accordingly the Settlement Officer declared that the petitioner's uncle Dhiren Choudhury could not have sold the entire land measuring 5 Bighas 10 Lechas to Naren Sarma through the sale deed No.6580/1984 and accordingly it was declared that the respondent No.3 could not have derived title over the entire land owned by the petitioner's grandmother Late Hema Prabha Choudhury.
7. In their objection before the Settlement Officer, the respondent No.3 contended that the petitioner if aggrieved by the mutation granted to the respondent No.3, he could have applied for cancellation of mutation under Sub-section (2) of section 53A of the Assam Land & Revenue Regulation, 1886. However purportedly exercising his inherent power under Section 151 of the Land & Revenue Regulation, the Settlement Officer cancelled the mutation granted, firstly to Late Dhiren Choudhury and as a consequence thereof, cancelled the sale deed(s) executed by Dhiren Choudhury to Naren Sarma in the year 1984; next the sale deed executed by Naren Sarma in 1987 to the three purchasers, namely, Renu Das, Dwijen Das and Bikramjit Kakati; and the subsequent sale made in the year 1987 to the respondent No.3 by the three vendors. The Settlement Officer mistakenly declared that the petitioner's father Prabin Choudhury as one of the two sons of Late Hema Prabha Choudhury was entitled to ½ of the land of Late Hema Prabha Choudhury and accordingly granted mutation for 2 Bighas 2 Lathas 15 Lechas land to Dipak Choudhury and for the other half of the land, mutation was granted to the respondent No.3.
8. Aggrieved by the decision of the Settlement Officer, the respondent No.3 filed Appeal before the Revenue Board under Section 147 of the Land & Revenue Regulation. In her application the respondent No.3 contended that she purchased the land through two registered sale deed(s) dated 4.9.2007 and 11.9.2007 from the three vendors through their attorney Padmeswar Basumatary. She was granted mutation of the purchased land during resettlement operation and that she is in occupation of the entire land purchased by her.
9. In her Appeal, the respondent No.3 also contended that Late Dhiren Choudhury to the exclusion of other legal heirs, inherited the entire land of 4 Hema Prabha Choudhury and following exclusive inheritance, Dhiren Choudhury sold the land to Naren Sarma through registered sale deed No.6580/1984. Then the purchaser Naren Sarma in turn sold the land in 1987 to Renu Das, Dwijen Das and Bikramjit Kakati and from these three vendors, the petitioner acquired title through two registered sale deed(s) executed on 4.9.2007 and 11.9.2007. The decision of the Settlement Officer was challenged also on the ground that the said authority had no jurisdiction to cancel the sale deed(s) through which the respondent No.3 and her predecessor acquired title as the sale deed(s) were never challenged and could not legally be challenged before the Settlement Officer. Moreover the jurisdiction of the Settlement Officer to declare title like a Civil Court was also a questioned by the respondent No.3 before the Revenue Board.
10. Moreover the decision of the Settlement Officer was assailed on the ground that the authority without any material basis had declared that Dhiren Choudhury and Prabin Choudhury were the only two sons entitled to inherit the land of the original pattadar Hema Prabha Choudhury and in fact the other legal heirs of the original pattadars and the remaining family properties (already partitioned) were never taken into account by the Settlement Officer. The sale deed executed in the year 1984 by the petitioner's uncle Dhiren Choudhury wasn't challenged by the petitioner and accordingly the respondent No.3 questioned the right of the Settlement Officer to disturb a sale deed executed as far back as in the year 1984.
11. The Revenue Board considered the Appeal filed by the respondent No.3 and noted the following:
"...................................................... Records were called from the learned Settlement Officer, Guwahati and perused. It is apparent from the records placed before us that the entire plot of land measuring 5 Bighas 10 Lechas under Dag No.565 of Periodic Patta No.32 of village Hengrabari, Mouza: Beltola in Kamrup Metropolitan District were mutated in the names of Smti Renu Das, Sri Dwijen Das and Sri Bikramjit Kakati, on transfer by way of purchase from Smti Hemo Prabha Choudhury. This mutation was effected by way of Chitha Mutation, also known as Field Mutation on 18.2.2000 and the said plot of land was mutated by way Chitha Mutation in the name of the Appellant Smti Sagarika Basumatary on 16.10.2007, as transferred by way of purchased from the 3 (three) persons mentioned above.5
In Chapter IV of the Assam Land & Revenue Regulation, 1886, under the Heading Registration (commonly known as Mutation), two methods have been prescribed, one (commonly known as Office Mutation) is covered by Sections 50 to 53 and the other by Section 53A (which is commonly known as Field Mutation, also Chitha Mutation), in the said Regulation. Further Section 53A has a close connection with the provisions of the Assam Land Records Manual. Sub-Section (2) of the section 53A of the Assam Land & Revenue Regulation, 1886 clearly specifies a limitation of 3 (three) years for a person for preferring an appeal before the Deputy Commissioner (in the instant case before the Settlement Officer), if aggrieved by an order directing the mutation effected under this section. The mutation in favour of the persons from whom the Appellant purchased the plot of land, was granted on 18.2.2000 by way of Field Mutation, covered under the provisions of law mentioned above. In case of a mistake also, it is clearly stated under Rule 211(2) of the Assam Land Record Manual, that "it is not unlikely that some mistakes might now or then occur in the summary enquiries. But a safeguard has been provided by Section 53A(2) of the Assam Land & Revenue Regulation, to the effect that any person aggrieved by a summary order may formally submit objection petition within a period of 3 (three) years from the date of the order, for setting aside the said order. Such petition should be made to the Sub-Deputy Collector in cases disposed of by him".
The matter was void ab-initio, even at the admission stage when the petition was taken up for consideration by the learned Settlement Officer, Guwahati on 26.2.2008, after a lapse of 8 (eight) years from the date when the land was mutated in favour of 3 (three) persons mentioned above, in place of late Hemo Prabha Choudhury, through whom the Respondent has claimed his right over the land.
......................................................"
12. After recording the above facts, the Revenue Board declared that the petitioner failed to seek the proper remedy under Sub-Section (2) of section 53A of the Land & Revenue Regulation and consequently the Settlement Officer committed an error by exercising the discretionary power under section 151 of the Land & Revenue Regulation.
13. The Revenue Board also observed that the Settlement Officer could not have cancelled the past mutations granted to the respondent No.3 and her predecessors and that the order of the Settlement Officer has the affect of disturbing the sale deed(s) executed long back in the year 1984, 1987 and 2007 respectively. On this basis, the order passed by the Settlement Officer 6 was held to be arbitrary and accordingly the same was quashed by the Revenue Board through its judgment dated 20.8.2009 (Annexure-5).
14. For the petitioner Mr. K Sarma, learned counsel submits that although remedy is provided under Sub-Section (2) of section 53A to challenge the mutation granted to the respondent No.3, the petitioner opted to invoke the discretionary power of the Settlement Officer under Section 151 and accordingly the counsel submits that the remedy under Section 53A (2) being optional, the petitioner was not bound to take recourse to this remedy.
15. On the non-impleading of the respondent No.3 in whose favour the Chitha Mutation was granted on 16.10.2007, the petitioner contends that prejudice is not caused to respondent No.3 as the Settlement Officer issued notice and also heard the respondent No.3 before cancelling the mutation.
16. However on behalf of the respondent No.3 Advocate Dr. G Lal submits that the order of the Settlement Officer is based on surmises and conjectures since he failed to take into account that Hema Prabha Choudhury and Late Rohini Kumar Choudhury had seven sons and Dhiren Choudhury and Prabin Choudhury were not the only children of Late Hema Prabha Choudhury.
17. Referring to partition of the various family properties of Shillong and Guwahati during the lifetime of Hema Prabha Choudhury, Dr. Lal submits that the 5 Bighas 10 Lechas land at Hengrabari fell to the exclusive share of the petitioner's uncle Dhiren Choudhury whereas the petitioner's father Prabin Choudhury inherited some family property at Shillong. Accordingly the respondent No.3 projects that Dhiren Choudhury as the exclusive owner had full authority to sale the entire Hengrabari land in 1984 to Naren Sarma and therefore his vendors in turn have derived good title and could therefore sale the land to others. The counsel submits that since the respondent No.3 was the final purchaser, she acquired sound title of the land.
18. Questioning the peculiar procedure adopted by the Settlement Officer, Dr. Lal contends that the Settlement Officer with his limited power could not have decided the title of the property nor could he have undone the long executed sale deed(s) and cancelled the mutation granted in favour of the predecessors and on this basis, the respondent No.3 supports the impugned judgment of the Revenue Board.
19. When a specific remedy is provided under Sub-section (2) of Section 53A, the recourse to inherent power under section 151 can't be justified and 7 therefore exercise of inherent power under section 151 of the Land & Revenue Regulation to undo mutation and cancel sale deeds by the Settlement Officer. For ready reference the two provisions are extracted below:
"53.A (1) Notwithstanding anything contained in sections 50 to 53, where the Deputy Commissioner has received information, otherwise than through an application, of any such taking of possession or assumption of charge as is referred to in section 50; he may make an order directing the registration of the name of the person so taking possession or assuming charge. Provided that --
(a) The information has been verified by local enquiry made by an officer not below the rank of an Assistant Settlement-officer, or
(b) Notice has been published and inquiry has been held in the manner prescribed by sections 52 and 53 as if an application for registration had been received from the person to whom the information relates. (2) Where any person is aggrieved by an order directing registration under this section, which has been made after verification of the information received by local inquiry only, he may within a period of three years of the date of such order apply to the Deputy Commissioner to have such order set aside, and on receipt of such application the Deputy Commissioner shall cancel the registration and then proceed to publish the notice and hold the inquiry prescribed by sections 52 and 53 as if an application for registration had been received from the person whose name had been registered."
"151. The Board, a Deputy Commissioner, a Settlement Officer and a Survey Officer may call for the proceedings held by any officer subordinate to it or him, and pass such orders thereon as it or he thinks fit."
20. A reading of the two Sections of the Land & Revenue Regulation amply shows that when a party is aggrieved by a mutation order of a subordinate authority, he can challenge the same under Sub-section (2) of Section 53A. Therefore this is the specific remedy provided under the Regulation. But the Section 151 is somewhat like a revisional/inherent power and when specific remedy is available under another head i.e. Section 53A(2), recourse by the petitioner to section 151 is declared to be unjustified.
21. If the petitioner was aggrieved by the mutation granted to the respondent No.3, he could have filed Appeal under Sub-section (2) of Section 53A of the Land & Revenue Regulation, but the petitioner failed to apply for cancellation of registration under the specific legal provision. Consequently the invocation of the residuary power under section 151 by the Settlement Officer is declared to be impermissible.
22. It is also significant to note that the petitioner never challenged the mutation granted to the respondent No.3 or to her predecessors nor the sale 8 deed(s) on the basis of which the petitioner and her predecessors' secured title were put to challenge. In fact the Settlement Officer could not have decided the title of the petitioner as a legal heir of Hema Prabha Choudhury, without taking into account the other legal heirs and the partition of the family properties amongst all the legal heirs, during the lifetime of the pattadars.
23. Therefore since power was arbitrarily exercised to undo long executed sale deeds and cancel old mutations and then without authority confer title like a Civil Court by the Settlement Officer, I find no infirmity with the impugned decision given by the Revenue Board to the effect that the Settlement Officer exceeded his jurisdiction and couldn't have declared title and ordered mutation in favour of the petitioner and that too without any material basis.
24. In view of above, I do not find merit in this challenge and accordingly the case is dismissed without any order on cost.
JUDGE Barman.
9IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WRIT PETITION (C) NO. 3973/2009 Dipak Kumar Choudhury.
- Petitioner.
-VERSUS-
The State of Assam & others.
- Respondents.
BEFORE
HON'BLE MR JUSTICE HRISHIKESH ROY
For the Petitioner: Mr. K Sarma, Advocate &
Mr. D Das, Advocate.
For the Respondents: Mr. J Handique, Govt. Advocate.
Dr. G Lal, Advocate.
Date of hearing & order: 06.05.2014.
FR
NFR
JUDGE