Gauhati High Court
Page No.# 1/15 vs The State Of Assam And 5 Ors on 5 September, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010018512015
2025:GAU-AS:12128
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4512/2015
TOPCEM INDIA LLP and ANR
HAVING ITS OFFICE AND PRINCIPAL PLACE OF BUSINESS AT LOHIA
HOUSE, M.G. ROAD, FANCY BAZAR, GUWAHATI-1 AND IS REP. BY ITS
PARTNER SHRI BAJRANG LOHIA.
2: SHRI BAJRANG LOHIA
S/O LT. BRIJ MOHAN LOHIA R/O KHARGULI
GUWAHATI-04. DESIGNATED PARTNER OF PETITIONER NO. 1
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY, REVENUE and DISASTER
MANAGEMENT DEPARTMENT, ASSAM SECRETARIAT, DISPUR,
GUWAHATI-6.
2:THE CHEIF SECRETARY
REVENUE and DISASTER MANAGEMENT DEPARTMENT
ASSAM SECRETARIAT
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISSIONER AND DISTRICT COLLECT
KAMRUP METROPOLITAN DISTRICT
PANBAZAR
GUWAHATI-1.
4:THE ADDL. DEPUTY COMMISSIONER
KAMRUP METROPOLITAN DISTRICT
PANBAZAR
GUWAHATI-1.
Page No.# 2/15
5:THE CIRCLE OFFICER
SONAPUR REVENUE CIRCLE
SONAPUR
KAMRUP M
ASSAM.
6:THE SR. SUB-REGISTRAR
KAMRUP M
PANBAZAR
GUWAHATI-1
Advocate for the Petitioner : MS.A TALUKDAR, MRA K RAI,MR.K RAJBONGSHI,MR.R P N
SINGH,MR.S DEY,MR.S P ROY,MS.B BAISHYA
Advocate for the Respondent : GA, ASSAM, ,,MR. B J TALUKDAR (SC, REVENUE DEPT.),MR.
D MAZUMDAR (ADDL. ADV. GEN.),,
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioners : Shri SP Roy
Advocate for the respondents : Shri D. Mazumdar, AAG-Assam
Ms. M. Barman, GA-Assam
Date of hearing : 26.08.2025
Date of Judgment : 05.09.2025
Judgment & Order
The instant petition under Article 226 of the Constitution of India has
been filed, challenging an order dated 20.05.2015, issued by the Deputy
Commissioner and District Collector, Kamrup (M) in Ceiling Case No.
1396/2014 whereby a finding has been arrived at of possessing land
measuring 92 bighas 1 katha 4 lechas in excess of the limit fixed under
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Section 4 of the Assam Fixation of Ceiling on Land Holding Act, 1956
(hereinafter Act, 1956). It has been stated that there has been
contravention of Section 20 of the said Act and accordingly the order was
passed under Section 21.
2. As per the facts projected, the petitioner no. 1 is a Limited Liability
Partnership and the petitioner no. 2 is one of its partners. Initially, the
petitioner no. 1 was a Private Limited Company in the name and style,
Topcem Cement Pvt. Ltd. and in the year 2008 had purchased different
plots of land. In 2011, there was a conversion from the Private Limited
Company to a Limited Liability Partnership vide a Certificate of Registration
on Conversion dated 22.02.2011. The petitioner no.1 had proposed for
setting up a Mega Cement Factory at Khetri over a plot of land measuring
193 bighas. The said proposal was carried forward to a great extent,
whereby all the clearance was granted, including those required by the
Environmental Authorities and the Ministry of Commerce. The State
Government had also taken a decision to grant special incentive regarding
entry tax exemption and the project proposed was given the status of Mega
Project by the State Government. Along with the petitioner no. 1, three
other Industries of Cement and one brewery were also considered. In the
said connection, a High-Powered Committee was constituted and the said
Committee had also given clearance to the petitioner to go ahead with the
project. The clearance was also given by the Revenue Department by
stating that though the land in question was agricultural land, there was no
cultivation for the last 10 years. The petitioners have also annexed
Certificates by the concerned Tapatoli Gaon Panchayat that there was no
cultivation over the plot of land in question for the last 10 years.
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3. The petition no.1 was also registered under the North East Industrial
and Investment Promotion Policy (NEIIPP), 2007 and was found eligible for
the incentives under the said policy and the same was also acknowledged
by the Central Government. The environmental clearance was given for the
project of the petitioner no. 1 on 12.06.2009 by the Ministry of
Environment and Forest, Government of India. The special incentives by the
State Government was issued on 23.02.2010 followed by a clearance by the
Industries and Commerce Department, Government of Assam on
13.04.2010 whereby special incentive was to be given to the petitioner no.
1. The said Department had also forwarded minutes of meeting dated
11.02.2010 of the High-Powered Committee wherein it was decided that
incentives would be allowed for the petitioner. Pursuant thereto, a Gazette
notification on such exemption was issued on 08.12.2010.
4. The petitioners have also relied upon an Office Memorandum dated
05.08.2013 issued by the Revenue Department whereby it was stated that
agricultural land which was not under cultivation for the last 10 years may
be transferred for non-agricultural purposes. Reliance has also been made
on an Office Memorandum dated 17.06.2014 of the Revenue Department
whereby it was stated that the Deputy Commissioner may give NOC for
transfer of such land and a Committee was constituted for such
reclassification, pursuant to which a Minutes of Meeting was recorded on
02.09.2013. While all these activities were on and the project was at the
brink of finalization, on 15.10.2014, the ADC had issued a letter to the
Circle Officer whereby a notice under Section 21 of the Act was directed to
be served on the petitioners. The petitioners have also brought on record a
communication dated 03.06.2013 issued by the Deputy Commissioner,
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Amingaon to the Revenue Department on another unit which was
proposing a distillery. On 08.05.2015, the ADC Amingaon had written to the
Circle Officer, North Guwahati on the aspect of reclassification. However, in
the meantime, there were some agitation launched by certain organizations
on transfer of the land and in this regard, the petitioners had also lodged
an Ejahar.
5. It is the case of the petitioners that the notice was replied by the
petitioner no. 2 which was followed by the impugned order dated
20.05.2015 issued by the Deputy Commissioner, Kamrup (M). It was alleged
that there has been contravention of Section 20 (1) of the Act and
therefore, the penalty prescribed under Section 21 of the Act was invited. It
is the said action which is the subject matter of challenge in the present
writ petition.
6. I have heard Shri SP Roy, learned counsel for the petitioners. I have
also heard Shri D. Mazumdar, learned Additional Advocate General, Assam
assisted by Ms. M. Barman, learned State Counsel.
7. Shri Roy, learned counsel for the petitioners has, at the outset
submitted that the Act of 1956 is not applicable in the instant case. By
drawing the attention of this Court to the definition of Land as provided in
Section 3(f), he has submitted that it is only agricultural land or land for
purposes subservient thereto which can be the subject matter of the Act in
question. He has submitted that the land in question was not under
cultivation for the last more than 10 years and to substantiate the said
contention, he has relied upon the Certificate issued by the Tapatoli Gaon
Panchayat. He has also drawn the attention of this Court to an Office
Memorandum dated 05.08.2013 issued by the Revenue Department that
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agricultural land which is not cultivated for the last 10 years may be
transferred for non-agricultural purposes. He has also submitted that as per
Office Memorandum dated 17.06.2014 issued by the Revenue Department,
the Deputy Commissioner has been vested with powers to give No
Objection Certificate for transfer of such land and in this regard a
Committee has been constituted for such reclassification. He has also
drawn the attention of this Court to the Minutes of Meeting dated
02.09.2013 on such reclassification of land.
8. On the point relating to the meaning of Land as defined in the Act,
the learned counsel for the petitioners has relied upon the decision of the
Hon'ble Division Bench of this Court reported in (1973) AIR (Guwahati)
131 [M/S Barduar Tea and Timer Co. Vs. the Sub-Divisional
Officer, Gauhati and Ors.]. He has submitted that in the said case the
Hon'ble Division Bench had clearly reiterated that the expression "Land"
within the meaning of the Act of 1956 is agricultural land. He has also
relied upon the judgment reported in (1993) 2 GauLR 135 [Hindustan
Tea Company and Ors. Vs. The State of Assam and Ors.] in which
this Court referred and relied upon the earlier Division Bench judgment of
Barduar Tea (supra).
9. The learned counsel for the petitioners has thereafter assailed the
impugned proceeding by submitting that even if assuming that the Act of
1956 is applicable, there are gross violations of the procedure laid down. By
drawing the attention of this Court to Section 5 of the Act, he has
submitted that there is a requirement for preparation of a draft statement
and thereafter to conduct a hearing whereafter a final statement was to be
prepared. He has submitted that no such procedures have been followed
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and therefore the impugned action is vitiated in law.
10. He has also assailed the impugned order by contending that the
conduct of the respondent authorities were that the petitioner had a
legitimate expectation of constructing a Mega Cement Factory. He has
submitted that the High Powered Committee which was headed by the
Chief Minister of the State had approved the project of the petitioner and
all clearance from the statutory authorities including the Ministry of
Environment and Forest, Government of India and Ministry of Commerce,
State of Assam were obtained. The petitioner no. 1 was given the Mega
Project Status and special incentive was granted by the State Government
in terms of entry tax exemption. He has submitted that the petitioner no. 1
as it was in the form of a Company was also registered under the North
East Industrial IPP, 2007 and was entitled to the benefits of the scheme. He
has especially drawn the attention of this Court to the clearance by the
Ministry of Environment, Government of India on 12.06.2009 and the
communication dated 23.10.2010 of the State Government by which special
incentives were given to the petitioners. He has submitted that vide the
Gazette Notification dated 08.12.2010 special exemption from entry tax was
given to the petitioner and the High Powered Committee in its meeting
dated 11.02.2010 had made a specific discussion on the petitioner and the
incentives were duly allowed. He has submitted that in view of such action
and conduct of the respondent authorities, the present impugned action is
not only wholly inconsistent but is also not tenable in law.
11. Lastly, the learned counsel for the petitioners has argued on the
aspect upon whom the notice was issued and also the entity which has
been mentioned in the impugned order dated 20.05.2015. He has drawn
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the attention of this Court to the notice which was issued by the Deputy
Commissioner-cum- Collector, Kapurup (M) which does not bear a date. The
said notice which has been said to be issued under Rule 21 of the Assam
Fixation of Ceiling on Land Holdings Act, 1956 is addressed to the petitioner
no. 2. It is submitted that apart from the name of the petitioner no. 2,
there was no description at all and the petitioner no. 1 which is a Limited
Liability Partnership or even the erstwhile Company has not been
mentioned at all. He has submitted that irrespective of the aforesaid gross
illegality and irregularity, the petitioner no. 2 had replied to the notice on
28.10.2014 in which it has been clearly stated that the notice was not
maintainable as it was not addressed to the proper person. In the said reply
it was categorically stated that though the notice was issued in the name of
the petitioner no. 2, he is not the owner of the land in question for which
the notice was issued.
12. By drawing the attention of this Court to the impugned order dated
20.05.2015, the learned counsel for the petitioners has submitted that even
in the impugned order, the same is in the name of the petitioner no. 2 by
describing him to be a Director of Topcem India Ltd. He has submitted that
at the time when the impugned notice was issued there was no entity in
the name and style Topcem India Ltd. and way back in the year 2011 the
Topcem India LLP was created which had owned the land in question.
13. The learned counsel for the petitioners accordingly submits that the
entire proceeding of issuing the undated notice which culminated in the
impugned order dated 20.05.2015 are bad in law and liable to be set-aside
and quashed.
14. Per contra, Shri D. Mazumdar, learned Additional Advocate General,
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Assam has submitted that the entire premises, on which the writ petition is
structured is misconceived and accordingly the writ petition is liable to be
dismissed. He has submitted that the land in question falls within the
definition of Land under Section 3(f). He has also submitted that the
provisions of Section 5 or 6 would not be applicable as those are only for
persons who, on the date of the commencement of the Act were holding as
owner or tenant land which is more than permissible by the Act. He has
submitted that the relevant provision of the Act in this case is Section 21
under which the notice was issued.
15. With regard to the argument made that notice was not issued to the
proper person, the learned Additional Advocate General has submitted that
in the official records, it is the name of the petitioner no. 2 which is shown
to be the representative of the Company. He has submitted that the
objective is to see as to whether the notice was served and the contents
understood by the person affected and the veil has to be lifted. He has
submitted that in any case the petitioner no. 2 has filed his reply on
28.10.2014. He has submitted that in the Sale Deed dated 10.04.2008, the
Company was represented by the petitioner no.2 and also in the Jamabandi
it is the name of the petitioner no. 2 who is shown to be a representative of
the Company. He has accordingly submitted that it is the petitioner no. 2
who would represent the Company and therefore no prejudice of any
nature has been served by the petitioners in defending themselves.
16. The learned AAG has also submitted that though the petitioner no. 2
had submitted a reply on 28.10.2014, in the entire reply, there is no
mention that the earlier Company was converted into a new entity in the
form of LLP of which the petitioner no. 2 is a designated partner. He has
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also drawn the attention of this Court to Section 26 of the Limited Liability
Partnership Act, 2008 (hereinafter LLP Act) wherein it has been laid down
that the partners would also act as the agent of the LLP. He has also drawn
the attention of this Court to the resolution of the petitioner no.1 whereby
it has been resolved that the petitioner no. 2 will represent all the partners.
As regards the contention advanced by the petitioner that under the
Industrial Policy of Assam, 2008, there is a provision for conversion of
agricultural land as well as this classification followed by an Act of 2015, the
said provision would not be applicable in the instant case inasmuch as, the
purchase was done way back in the year 2008 and it is on the date of the
purchase which is to be taken into consideration as the relevant date for
application of the Act of 1956. He has submitted that the Deputy
Commissioner, who had issued the impugned order is only having access to
the official documents, namely the records of mutation in which the name
of the erstwhile Company still existed till May 2011 and therefore the
impugned action cannot be faulted by terming that the same is not
addressed to the proper party.
17. The learned AAG has also drawn the attention of this Court to the
enquiry report dated 19.09.2014 issued by the Additional Deputy
Commissioner, Kamrup (M) and has submitted that none of the points
sought to be espoused by the petitioners are liable for any consideration.
18. Shri Roy, the learned counsel for the petitioners, in his rejoinder has
submitted that the petitioner no. 2 is authorized to file the writ petition and
not for any other activities. He has also submitted that under Rule 3 and
Rule 4 of the Assam Fixation of Ceiling on Land Holdings Rules, 1957, the
impugned action will stand vitiated.
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19. The rival submissions have been duly considered and the materials
placed before this Court have been carefully examined.
20. Let this Court deal with the arguments raised by the petitioners
point-wise.
21. The first leg of argument was that the Act of 1956 is not applicable
inasmuch as, the Land in question is not agricultural land. To appreciate the
said contention, let this Court deal with the definition of land which is given
in Section 3(f) of the Act, which reads as follows:
"3. Definition. -
...
(f) "land" means land which is or may be utilized for agricultural purpose or purposes subservient thereto, and includes the sites of buildings appurtenant to such land and includes land which is or may be utilized for quarrying stones."
22. The definition makes it clear that the expression "land" which finds place in the Act of 1956 has to be land which or which may be utilized for agricultural purpose or for purposes subservient thereto and also includes few other things. In the instant case, the reliance of the petitioner is upon the contention that for the last more than 10 years, the land has not been utilized for agriculture and in this regard, the Certificate issued by the Tapatoli Gaon Panchayat has also been pressed into service. The petitioner has also relied upon the Assam Agricultural Land (Regulation of Reclassification and Transfer for non-agricultural purpose) Act 2015.
23. The aspect as to whether the land was not under cultivation for the last 10 years is a factual aspect and that by itself, in the considered opinion Page No.# 12/15 of this Court, would not change the nature and character of the land unless the same is reclassified by any order of the State. The Act under which such a reclassification could have been done came in the year 2015 whereas the purchase was done in the year 2008. Even if it is accepted that the land in question was not under cultivation for some time, the same will not change the nature and character of the land which is agricultural land. This Court is therefore unable to accept the first leg of argument that the Act in question is not applicable, more so when the quantity of land is more than the ceiling permitted by the said Act.
24. The second leg of argument is that the procedure laid down in the Act under Sections 5 and 6 read with Rules 3 and 4 of the Rules of 1957 have been violated. A bare perusal of Section 5 would however show that the aforesaid provision is applicable only to those persons who, at the time of commencement of the Act holds as owners or tenant lands which in the aggregate exceed the limit fixed under Section 4 of the Act. In the considered opinion of this Court, the aforesaid Section is not at all applicable in the instant case and rather it is Section 20 is applicable in fact, the said provision is specifically mentioned in the impugned order which reads as follows:
"20. Ceiling on future acquisition by transfer, etc. -
(1) Notwithstanding anything to the contrary in any law, usage, contract or agreement, from and after the commencement of this Act, no person as owner [or] tenant [or mortgagee in possession] by transfer, shall acquire, or possess by transfer, exchange, lease, agreement or etc. settlement any land which, or without the lands held by him or any member of his family, shall in the aggregate Page No.# 13/15 exceed the limit fixed under Section 4 of this Act.
Explanation:- Transfer does not include (i) inheritance and; (ii) bequest or gift to an heir.
2) From and after the commencement of this Act, no document evidencing any transaction for acquisitions or possession of any land by way of transfer, exchange, lease, agreement or settlement shall be registered, unless a declaration in writing and duly verified is made filed by the transferee before the competent registering authority under the Indian Registration Act, 1908 (Act XVI of 1908), about the total area of Lands held or possessed by him or any member of his family as owner or tenant.
Provided that is case of any transaction which does not require registration, the aforesaid declaration shall be filed before the Collector or any officer authorized by him in this behalf.
3) No registering authority shall register under the India Registration Act any document evidencing any transaction from the declaration made under sub-section (2) above, it appeal that the transaction has been effected in contravention of the provision of sub-section (1)."
25. A bare perusal of Section 20 would show that the same would be applicable for a transfer, exchange, lease, agreement or settlement of any land by a person whose aggregate would exceed the limit fixed under Section 4 of this Act. As mentioned above, the petitioner no. 1 LLP in its earlier form as a Private Limited Company had purchased the land in the year 2008 and therefore it is Section 20 of the Act of 1956 read with Page No.# 14/15 Section 21 which would be applicable. This Court is therefore unable to accept the submission about violation of the procedure laid down in Section 5 and 6 of the Act.
26. The next submission is in the line of estoppel. It is submitted that the High Powered Committee constituted by the State Government had recognized the project of the petitioner no. 1 as Mega Cement Project and had given numerous incentives both in the way of entry tax exemption as well as giving the status of Mega Project. It also appears that the clearance was given by the Environmental Ministry of the Government of India. It is however a settled position of law that there cannot be any estoppel in law. In the instant case, the allegation made by the petitioners is that the Act in question is not applicable. It however clearly appears that the provisions of Section 20 read with Section 21 of the Act of 1956 are clearly applicable inasmuch as, the conditions precedent for the aforesaid provision of law are duly fulfilled in the present case.
27. The last submission made on behalf of the petitioner is on the aspect of the notice issued in terms of the Act in question. A perusal of the notice would however show that the notice which is not dated has been said to be issued under Rule 21 of the Act of 1956. Though there is no Rule 21 as such even if it is construed to be Section 21 the same is addressed to one Bajrang Lohia without any further description. It however appears that Bajrang Lohia is a partner of the petitioner no. 1 LLP and was also one of the Directors of the erstwhile Company. The entity which owns and possesses the land however has not been served with a notice. This Court has also noted that the notice was not even in the name of the erstwhile Company. This point was specifically raised by the said Bajrang Lohia in his Page No.# 15/15 reply filed on 28.10.2014. However, in the impugned order dated 20.05.2015, it is the name of the erstwhile Company which finds mention. There is no mention of the petitioner no. 1 LLP which was formed way back in the year 2011 and the impugned proceeding was initiated sometime in the year 2014.
28. In view of the aforesaid discussion, this Court is of the view that though the other contentions of the petitioners may not be held to have any merits, the writ petition would succeed on the aspect that no notice has been served on the entity, namely, the petitioner no. 1 which was an existing LLP much before the impugned proceeding was initiated under the Act of 1956.
29. The writ petition accordingly stands allowed. Since the interference is only on the point of notice not being served on the legal entity, it would open for the respondent authorities to proceed afresh which however has to be done in accordance with law.
30. No order as to cost.
JUDGE Comparing Assistant