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Gauhati High Court

Md. Mizanur Rahman & 4 Ors vs The State Of Assam And Ors on 8 December, 2015

Author: Hrishikesh Roy

Bench: Hrishikesh Roy

                              IN THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                              Writ Petition (C) No. 2278/2011

    1.   Md. Mizanur Rahman,
    2.   Md. Bodioz Zaman,
    3.   Md. Azizor Rahman,
    4.   Md. Habibur Rahman Mondal and
    5.   Md. Motior Rahman
         All sons of Late Mokram Ali Mondal,
         Residents of Vill. - Kurshakati, P.O. Aolatoli,
         P.S. Lakhipur (Goalpara),
         Dist. - Goalpara, Assam.                                               ... Petitioners.

                                   -VERSUS-

    1. The State of Assam,
       Represented by the Chief Secretary to the Govt. of Assam,
       Dispur, Guwahati-6.
    2. The Principal Secretary to the Govt. of Assam,
       Revenue Department, Dispur, Guwahati-6.
    3. The Deputy Commissioner and Collector, Goalpara,
       Dist. - Goalpara, Assam.
    4. The Joint Director of Surveys, Assam,
       Dakhin Gaon, Guwahati-34.
    5. The Settlement Officer, Goalpara.
    6. The Asstt. Settlement Officer,
       Lakhipur Circle, Lakhipur, Goalpara.
    7. The Circle Officer i/c. Lakhipur Circle,
       Lakhipur, Goalpara.                                                      ...Respondents.

                                   BEFORE
                      THE HON'BLE MR JUSTICE HRISHIKESH ROY

For the petitioner                         : Mr. HRA Choudhury, Sr. Advocate,
                                             Ms. R Choudhury, Advocate and
                                             Mr. FU Borbhuya, Advocate.

For the respondents                        : Mr. B. Talukdar, Govt. Advocate.

Date of hearing and Judgment               : 08.12.2015.


                               JUDGMENT AND ORDER (ORAL)

Heard Mr. HRA Choudhury, the learned senior counsel appearing for the petitioners. Also heard Mr. B. Talukdar, the learned Govt. Advocate representing the respondents.

2. The five petitioners are the sons of Late Mokram Ali Mondal and they claim settlement of the ceiling surplus land at village-Kurshakati Dihi Nachnipara, Mouza- Sharokhawa, Revenue Circle-Lakhipur (Glp), Dist. Goalpara, Assam. According to the petitioners, their forefather was the rayat (cultivating tenant) for the concerned land under the Jamindar of the Lakhipur Raj Estate and they claim right of allotment and settlement, under the Assam Fixation of Ceiling on Land Holding Act, 1956 and the Assam Fixation of Ceiling on Land Holding Rules, 1957 (here-in-after referred to as 'the Ceiling Act' and 'the Ceiling Rules" respectively).

3. In respect of the land claimed by the petitioner, one Ekram Mondal was recorded as the khatiandar and the petitioners claim to have succeeded to the khatiandar's right, through their father Late Mokram Ali Mondal. The jamindari land was acquired during the emergency on 1.6.1976 under the Ceiling Act, through the Ceiling Case No.53/GC/L/72 and the petitioners claim settlement of the land under their possession, in accordance with Rule 16 of the Ceiling Rules.

4. The petitioners contend that they were granted possessory right by the Dy. Commissioner on 12.4.1977 (Annexure-VII) under the provisions of the Ceiling Act and thereafter notice was also issued to them under Rule 16(1)(b) of the Ceiling Rules, to apply for allotment of the ceiling surplus land, under possession of the petitioners.

5. Responding to the notice received from the Goalpara D.C., the petitioners applied (Annexure-XIII) for settlement of the land and in pursuant to their application, a survey report was furnished on 10.3.2000 (Annexure-XV) by the Asstt. Settlement Officer, Lakhipur Circle, where it was reflected that in respect of the land mentioned in the report, the Ceiling Allotment Certificate No.183352, dated 12.5.1977 was issued to the petitioners, as rayats of the land, on the basis of their possession and payment of revenue. Following the survey report, the Senior Settlement Officer, Goalpara forwarded a proposal on 16.1.2001 (Annexure-XIV) to the Goalpara D.C. for taking necessary steps for the ceiling acquired land.

6. Referring to the above developments, Mr. HRA Choudhury, learned senior counsel submits that on the basis of the allotment letter dated 12.4.1977 (Annexure- VII), the petitioners are entitled to settlement of the ceiling acquired land and their claim should receive a fair consideration in accordance with Rule 16(1)(b) of the Ceiling Rules.

7. On the other hand Mr. B. Talukdar, the learned Govt. Advocate refers to the counter affidavit filed by the Settlement Officer, Goalpara to project that the claimants are not cultivators and all the five petitioners are gainfully employed and since the Writ Petition (C) No.2278/2011 Page 2 of 4 settlement of ceiling acquired land is possible only for cultivating tenants, the petitioners not being of that category, are disentitled to the benefits under the Ceiling Act. However a rejoinder affidavit has been filed by the petitioners on 7.12.2015, where it is stated that although the first three petitioners are not cultivators, their adult sons are actually cultivating the ceiling acquired land under the occupation of the family. Moreover the petitioner Nos.4 & 5 are not contractor and journalist and they should also be recognized as cultivators.

8. The Assam Ceiling Act deals with agrarian reforms and the expression 'tenant' is defined under Section 3(o) of the Ceiling Act, which reads as under:

"(o) "Tenant" means a persons who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to the other person [and includes a person who cultivates the land of another person on condition of delivering a share of the produce]"

9. The manner of disposal of the excess land is stated under Section 16 of the Ceiling Act which provides that if there is a cultivating tenant in occupation of the land acquired under the Ceiling Act, then the tenant should be given settlement of such land, subject to the limits prescribed by the Section.

10. The Section 17 of the Ceiling Act deals with those lands which are not settled under Section 16 and which are not under occupation of any tenant within the meaning of the Ceiling Act. Such excess land is at the disposal of the Government and the same can be settled with landless cultivators and others, by application of Section 12 of the Assam Land and Revenue Regulation, 1886.

11. This Court while examining the scope and ambit of the Ceiling Act in Purno Boro vs. State of Assam reported in 2008 (1) GLT 986, declared that the question whether their exists any cultivating tenant on land acquired under the Ceiling Act, is to be verified through an enquiry and the relevant date for the purpose is when the land vested with the State Government. It was further declared that if it is found, as a matter of fact that there exists cultivators over the ceiling acquired land and those cultivators are found to be tenants, as defined under Section 3(o) of the Ceiling Act, such tenants are entitled for settlement of the land, in accordance with the procedure prescribed by the Ceiling Act and Ceiling Rules.

12. From the above analysis it can be inferred that the right of the petitioners to get settlement of the ceiling acquired land will hinge on their respective status as on 1.6.1976, when the concerned land vested upon the State Government, in accordance with the Ceiling Act.

13. The manner of disposal of the ceiling surplus land acquired by the Government is prescribed by the Ceiling Rules and under Rule 16(1)(a), a cultivating tenant who is in occupation of the land, is entitled to settlement of such ceiling acquired land. In fact to protect such cultivating tenant, an obligation is cast on the Collector under Rule 16(1)(b), to issue notice of the cultivating tenant so that a written application for settlement can be filed by the cultivating tenant, before the Collector.

14. In the case in hand, the certificate of possession was given to the petitioners on 12.4.1977 and consequential notice was also issued to them by the Goalpara D.C. with further direction to the petitioners to apply for settlement under Rule 16(1)(b) of the Ceiling Rules. In order to consider the application for land settlement given by the petitioners, it is necessary to verify their respective status as on 1.6.1976, as that is the date on which the ceiling surplus land was acquired by the Government. If the petitioners were cultivating tenants as on 1.6.1976, their claim for settlement under Rule 16 of the Ceiling Rules will deserve consideration and subsequent change of their status after the cut off date of 1.6.1976 will not have any material bearing, on the merit of their application, under Rule 16 of the Ceiling Rules.

15. In the above circumstances, the petitioners prayer for settlement of the ceiling surplus land is directed to be considered after due verification of their respective status as on 1.6.1976. If it is found that they are cultivating tenants on the date when the ceiling surplus lands were acquired by the Government, their pending application for settlement should be considered in accordance with the Ceiling Act and the Rules. The necessary exercise in this regard should be carried out by the D.C., Goalpara expeditiously and preferably within four months of intimation of this order. It is ordered accordingly. The petitioners are permitted to furnish a copy of the Court's order along with this case materials before the D.C., Goalpara, the Settlement Officer, Goalpara and the Circle Officer of Lakhipur for facilitating the ordered exercise.

1. With the above direction, the case stands disposed of. No cost.

JUDGE Barman.