Gauhati High Court
Satya Narayan Gupta & Anr vs The Assam Board Of Revenue & Ors on 21 April, 2016
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.849/2010
1. Shri Satya Narayan Gupta,
2 Shri Sitaram Gupta,
Both are sons of Late Raja Ram Gupta,
R/O Borhapjan, Po. Borhapjan,
Ps. Doom Dooma, Dist. Tinsukia, Assam .....Petitioners.
VERSUS
1. The Assam Board of Revenue, Guwahati.
2 The Deputy Commissioner, Tinsukia.
3 The Addl. Deputy Commissioner,Tinsukia.
4 The Circle Officer,
Doom Dooma Revenue Circle, Tinsukia
5 Tileswari Devi,
W/O Lt. Ram Singhasan Prasad Mallah
6 Hareram Das,
S/O Lt. Ram Singhasan Prasad Mallah,
Both are R/O Borhapjan, Po. Borhapjan,
Ps. Dom Dooma, Dist. Tinsukia, Assam
7 The State Of Assam,
Rep. By The Commissioner & Secretary to the
Govt. Of Assam, Revenue Department,
Dispur, Guwahati-6 ...Respondents.
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
For the petitioners : Mr. S. Banik. ... Advocate.
For the respondent Nos.2,3,4 & 7 : Mr. P.S. Deka ... G.A.
For the respondent Nos. 5 & 6 : Mr. K. Agarwal. ...Sr. Advocate.
Mr. A.K. Gupta ... Advocate.
Date of hearing and Judgment : 21.4.2016.
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Banik, the learned Counsel appearing for the petitioners. Also heard Mr. P.S. Deka, the learned Government Advocate representing the respondent Nos.2, 3, 4 & 7. The learned Sr. Counsel Mr. K. Agarwal appears for the two contesting respondent Nos.5 & 6.
WP(C) No.849/2010 Page 1 of 6 22. This matter pertains to a mutation dispute relating to land owned by a 3rd party i.e. M/s Assam Frontier Tea Limited. Initially on the strength of the order dated 18.8.1995 in the Misc. Case No.4/1995, the Circle Officer Doomdooma corrected the record of rights of land measuring 2 Bigha 4 Katha 5 Lechas covered under Dag No.98, 99, 100 & 101 of Hukanguri Mouza F.C. Grant No.110 in favour of Satya Narayan Gupta and Sitaram Gupta (writ petitioners) on the basis of their possession of the land. This order was preceded by the direction given by the D.C., Tinsukia on 28.6.1995.
3. The above mutation order came to be challenged after a long gap by the respondent Nos.5 & 6 before the D.C., Tinsukia, through their application dated 21.5.2007 (Annexure-III). In this application, the respondents referred to the Title Suit No.83/1975 filed by their predecessor Late Ram Singhashan Prasad Mallah and the Decree passed in the said suit by the learned Munsiff No.1, Tinsukia on 28.8.1982 and the dismissal of the resultant Civil Revision No.261/1982 by the High Court on 2.11.1989, by rejection of the case filed by the petitioner Satya Narayan Gupta. The attempt of the judgment-debtor to stall the title execution case was also indicated in their application. It was also contended that in respect of the land measuring 4 Katha 1 Lecha covered under Dag No.99, the writ petitioners were never in possession and in fact a Court of competent jurisdiction had already declared the possession of the private respondents for land measuring 4 Katha 11 Lecha under Dag No.99.
4. Although the Appeal was filed belatedly, the Appellate Authority on 29.5.2007 admitted the Appeal formally and ordered for registration of the Revenue Case No.2/2007. Subsequently in the final verdict dated 22.9.2009 (Annexure-X), the Addl. D.C.(Revenue), Tinsukia observed that the other side secured mutation by suppression of material facts i.e. the Decree passed against them in the Title Suit No.83/1975. The authority also noted that mutation can't legally be granted only on the basis of possession and on this basis, the mutation order passed by the Circle officer Doomdooma on 18.8.1995 was held to be unsustainable and the same was quashed and correction of the record of rights WP(C) No.849/2010 Page 2 of 6 3 was ordered by the Appellate Authority.
5. The aggrieved writ petitioners then filed the Appeal before the Assam Board of Revenue to challenge the order dated 22.9.2009 of the Addl. D.C., Tinsukia but through the impugned judgment dated 21.12.2009 (Annexure-XIII), the Revenue Board after observing that mutation was erroneously granted only on the basis of possession and that the condition precedent for grant of mutation under Section 53 of the Assam Land and Revenue Regulation (hereinafter referred to as "the Revenue Regulation") were absent, upheld the order of the Addl. D.C. But nevertheless liberty was given to the appellants to approach the Civil Court.
6. Assailing the legality of the impugned order of the Revenue Board, Mr. S. Banik, the learned Counsel submits that when the mutation order was passed in the year 1995, the Appellate Authority should not have entertained a belated challenge by the private respondents, to set aside the mutation order. As the two private respondents had secured the Decree for only 4 Katha 1 Lecha of land covered by Dag No.99, the petitioners argue that cancellation of mutation for the entire land (2 Bigha 4 Katha 5 Lechas covered by Dag Nos.98, 99, 100 & 101), should not have been ordered by the Appellate Authority. Since the order of the Circle Officer granting mutation to the petitioner on 18.8.1995 was a follow-up of the D.C's order of 26.6.1995, Mr. Banik submits that without a challenge to the D.C's order, the mutation order could not be reversed by an authority of concurrent jurisdiction.
7. On the other hand the Mr. K. Agarwal, the learned Senior Counsel submits that the private respondents together with their predecessor have been in possession of the T.E land for several decades but only when the writ petitioners tried to disturb their possession on the strength of the mutation order passed by the Circle Officer on 18.8.1995, the respondents learnt of the illegal mutation order passed on the basis of purported possession. Therefore it is argued that the respondents approached the Appellate Forum without any unnecessary wastage of time. Referring to the averments made in paragraph-6 WP(C) No.849/2010 Page 3 of 6 4 of the Appeal Memo and also the admission of the Appeal through the formal order passed on 29.5.2007, the Senior Counsel argues that the issue of limitation was adequately addressed by admission of Appeal and therefore the said aspect need not be considered again by a Writ Court. The respondents further contend that they have secured a Decree from the Civil Court for 4 Katha 1 Lecha of land covered by Dag No.99 and since the writ petitioners as the judgment-debtors suppressed the Title Suit No.83/1975 and the Decree passed against them, the mutation order was undeservingly obtained by suppression of material facts and therefore the Appellate Authority rightly reversed the unjust mutation.
8. The final order passed by the Appellate Authority on 22.09.2009 discloses that the limitation point urged by the writ petitioners was taken into account by noting that the Appeal was formally admitted earlier on 29.05.2007. Moreover in the Appeal Memo itself, prayer for condoning the delay was made although condonation application was not filed. But even in the absence of a formal application, delay can always be condoned since advancing the cause of justice should be the primary objective (see AIR 1959 P&H 646, Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram and also AIR 1960 Cal. 718, Sree Sree Iswar Sridhar Jew Vs. Jnanendra Nath Ghosh)
9. Therefore when we examine the circumstances under which the Appeal came to be filed and the explanation given in paragraph-6 for the delayed challenge, it can't be said that the delayed approach of the respondents should have led to dismissal of their appeal and consequently this aspect is answered against the writ petitioners.
10. In so far as the merit of the mutation cancellation order, it must be borne in mind that neither of the two contesting groups are claiming title over the tea company's land. However only on the basis of purported possession, mutation was granted to the writ petitioners for the entire land measuring 2 Bigha 4 Katha 5 Lechas encompassing Dag Nos.98, 99, 100 & 101. The Chapter-IV of the Revenue Regulation prescribes the procedure for granting mutation and Section 53 thereof requires the D.C. to examine the claim of mutation, on the basis of WP(C) No.849/2010 Page 4 of 6 5 both succession and possession. But in the instant case, mutation was granted to the writ petitioners only on the basis of possession without ascertaining whether they have right of succession to the concerned land. This mistake was highlighted by the Appellate Authority for ordering cancellation of the mutation on 22.9.2009 (Annexure-X) and I see no infirmity in the logic of the appellate authority.
11. Moreover in the mutation order passed by the Circle Officer on 18.8.1995, possession of the writ petitioners over the entire 2 Bigha 4 Katha and 5 Lecha of land covered by Dag Nos.98, 99, 100 & 101 was noted. But when the Civil Court of competent jurisdiction had already passed a decree on 28.8.1982 in the Title Suit No.83/1975 declaring the possession of the respondents in respect of 4 Katha 1 Lecha of land covered by Dag No.99, it is obvious that the mutation order for the entire land was passed on erroneous basis, by incorrectly assuming that the writ petitioners were in possession of the entire land including those covered by Dag No.99. Therefore the illegality in granting mutation to the writ petitioners is apparent at least in respect of 4 Katha 1 Lecha land, covered by Dag No.99.
12. The challenge here is to the order whereby the Appellate Authorities have cancelled the undeserved mutation secured by the writ petitioners. The respondents may have failed to immediately approach the Appellate Forum after the mutation order but it is clear enough that the Appeal was formally admitted after considering all aspect of the matter. As a Court of equity, the Writ Court must strive to further the cause of justice and should not exercise its discretionary power, unless substantial injustice is caused in a matter. In the understanding of this Court, miscarriage of justice is not found in this case. Therefore I am disinclined to entertain the writ petition and the same is accordingly dismissed.
13. But even while dismissing the case, since the respondents claim possession only for 4 Katha 1 Lecha of land covered by Dag No.99, it is declared that order passed by the Addl. D.C., Tinsukia in the Revenue Appeal No.2/2007 WP(C) No.849/2010 Page 5 of 6 6 and the impugned judgment dated 21.12.2009 in the Case No.137 RA (TIN)/2009 will not facilitate the two private respondents to make any additional claim beyond what was decreed in the Title Suit No.83/1995. It is declared so accordingly.
14. With the above order, the case stands disposed of without any order on cost. Send down the LCR.
JUDGE Datta.
WP(C) No.849/2010 Page 6 of 6