Gauhati High Court
On The Death Of Bhanumati Ghosh Her Legal ... vs The State Of Assam And Ors on 11 June, 2015
Author: A K Goswami
Bench: A K Goswami
1
RSA 149/2003
BEFORE
HON'BLE MR JUSTICE A K GOSWAMI
11.06.2015
Heard Mr. S. P. Roy, learned counsel for the appellants. Also heard Mr.
P.S. Deka, learned State counsel, appearing for the respondents.
2. This Second Appeal is directed against the judgment and decree dated 23.07.2003 passed by the learned Civil Judge (Senior Division), Sonitpur, in Title Appeal No. 17/98, dismissing the appeal and affirming the judgment and decree dated 15.06.98 passed by the learned Civil Judge (Junior Division) No. 1, in Title Suit No. 102/95.
3. The original plaintiff, Smti Bhanumati Ghose, filed the suit for declaration of right, title and interest of the plaintiff over the suit land by right of her adverse possession with consequential relief of confirmation of possession and for declaration that the proceedings in the eviction case, being E.C. No. 23/95, is null and void, illegal and inoperative against the plaintiff; permanent injunction prohibiting the restraining the defendant Nos. 2, 3 and 4 and their men, agents from evicting the plaintiff; cost of the suit; and any other relief to which the plaintiff is entitled. The Schedule of land, as given in the plaint, is an area of 4 Lecha of Government land covered under Dag No. 744, situated at Rangapara town, Mouza - Balipara and that the said area of land, as described in the Schedule to the plaint, was extracted from the notice given in E.C. No. 23/95.
4. The case as set out by the plaintiff is that the plaintiff is in occupation of the land described in the Schedule to the plaint, which is adjacent to the periodic patta land belonging to the plaintiff, measuring 2½ Katha, with the knowledge of the Government for more than 50 years by constructing permanent house and structures thereon. In spite of the above, the defendants served a notice in E.C. Case No. 23/95, on 19.12.95, demanding the plaintiff to vacate the land mentioned in the said notice forthwith by demolishing the houses and structures therefrom and also that, in default in compliance thereof, the authority concerned will forcibly evict the plaintiff from the suit land.
5. The defendants filed a written statement stating that the suit land was being used as public road since time immemorial and that the plaintiff and her 2 family members started raising temporary construction in the year 1992 and, therefore, notice under Rule 18(2) and 18(3) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 (for short, 'ALRR') was issued treating the plaintiff to be an encroacher.
6. On the basis of the pleadings, the learned Trial Court framed the following issues:
"1. Whether the suit is maintainable?
2. Whether there is cause of action for the suit?
3. Whether the possession of the plaintiff over the suit land has become adverse and thereby the plaintiff has acquired title over the suit land by right of adverse possession ?
4. Whether the proceeding being E/C Case 23/95 is null and void, illegal and in-operative against the plaintiff?
5. Whether the plaintiff is entitled to a decree as prayed for?"
7. The plaintiff examined 4 witnesses, whereas the defendants did not examine any witness on their behalf. The witnesses were, however, cross- examined. The plaintiff exhibited the Sale Deeds as Ext.-1 and Ext.-2 in respect of 2 ½ Katha of land. Her husband had purchased 2 Katha of land vide Ext.-1 and the plaintiff (PW1) had purchased ½ Katha of land vide Ext.-2. PW4 had exhibited the original notice issued under Rule 18 of the Settlement Rules.
8. Learned Trial Court decided Issue Nos. 1 and 2 in favour of the plaintiff. Issue No. 3 was decided against the plaintiff. So far as issue No. 4 is concerned, the learned Trial Court opined that in view of the bar created under Section 154(1)(n) of the ALRR, civil court has no jurisdiction and the defect, if any, in a notice, cannot be gone into. In view of rendering such a decision in Issue Nos. 3 and 4, the suit was dismissed.
9. The learned Lower Appellate Court also opined that as the plaintiff had not acquired any right, title and interest, the proceeding in E.C. No. 25/95 is not null and void or illegal.
10. By an order passed on 05.09.2003, this Second Appeal was admitted to be heard on the following substantial questions of law:
3"1. Whether the judgment and decree are perverse, passed on wrong interpretation of law?
2. Whether the provisions of Rule 18 of the Settlement Rules is ultra vires and void?
3. Whether in any dispute between the patta land and the Govt.
land summary eviction proceeding under Rule 18 of the Settlement Rules can be exercised by the respondent?"
11. During pendency of the appeal, the original plaintiff died and, accordingly, her legal representatives had been brought on record.
12. At the outset, Mr. S. P. Roy, learned counsel for the appellants has submitted that Rule 18 of the Settlement Rules, framed under the ALRR was declared ultra vires in the case of Bandhana Goala v. Assam Board of R evenue , reported in AI R 1972 Assam & Nagaland 11 and, therefore, the very initiation of the E.C. No. 23/95 under Rule 18 of the Settlement Rules is absolutely without jurisdiction and null and void. It is submitted by Mr. Roy that the decision in Bandhana Goala (supra), at any rate, was holding the field, at least, till 1997 when certain amendments were effected in Rule 18 of the Settlement Rules, whereas the impugned notice was issued in the year 1995. It is submitted by him that even assuming Rule 18 to be valid, then also, in the instant case, the notice issued under Rule 18(2) is not maintainable in view of the condition precedent for exercise of power under Rule 18(2), such as, the land in question being not reserved for roads, or the same being not roadside land, was non-existent. It is also submitted by him that while legality and validity of the notice was not gone into by the learned Trial Court, the learned Lower Appellate Court, on perverse appreciation of the evidence on record including on the premise that the defendants also adduced evidence, held that there was no infirmity in the E.C. No. 23/95. Learned counsel for the appellant further submits that the absence of any boundary in the notice itself indicates the vagueness of the notice, and non-furnishing of boundary of the land in the notice is sufficient to hold the notice to be bad in law. He submits that the finding of the learned Courts below that the plaintiff failed to prove adverse possession is perverse and the same is not borne out of the records. It is urged by the learned counsel for the 4 appellant that in view of the fact that the defendants had not adduced any evidence, the stand taken in the written statement cannot be taken into consideration. Learned counsel for the appellant relies on a decision of the Apex Court in Governm ent of Andhra P radesh v. Thum m ala K rishna R ao and Another , reported in (1982) 2 SCC 134 as well as in the case of Udal Das P anika v. K arbi Anglong District Council , reported in 1989 (2) GLJ 126.
13. Mr. P. S. Deka, learned State counsel has submitted that the contention advanced by Mr. Roy, that Rule 18 was not existent at least till 1997, is misconceived inasmuch as the ground on which Rule 18 was held to be ultra vires in Bandhana Goala (supra), came to be remedied with the insertion of Section 154(1)(n) and Section 154-A in ALRR in the year 1971 itself. It is contended by him that the scope of Rule 18(2) was enlarged by an amendment with effect from 21.03.97. He submits that even under the extant Rule prevailing in the year 1995, the notice in question, which was under Rule 18(2), was validly issued and, in the plaint, no ground was taken to the effect that the notice under Rule 18(2) was not applicable and was without jurisdiction. It is submitted by him that even though boundary of the land was not given in the notice, the identity of the land is well known to the plaintiff as the categorical averment in the plaint was that she was in possession of the land described in the Schedule to the notice issued under Rule 18(2) of the Settlement Rules and, therefore, non-mentioning of the boundary of the land in Dag No. 744, of which the plaintiff was in unauthorized occupation, would not be of any consequence. He also submits that both the courts below have concurrently held that the only assertion that the plaintiff made during her evidence was her uninterrupted possession in respect of 2 ½ Katha of land and that she failed to establish adverse possession with regard to the land in Dag No. 744 and, therefore, the aforesaid finding of fact, which is not perverse, ought not to be interfered with in the Second Appeal. Mr. Deka has also drawn attention of the Court to a Full Bench decision of this Court in the case of Daulatram Lakhani v. State of Assam And Ors., reported in (1989) 1 GLR 131 .
14. The first question that has arisen for consideration is whether the provisions of Rule 18 of the Settlement Rule is ultra vires and void in view of the decision rendered in Bandhana Goala (supra).
515. In Bandhana Goala (supra), this Court relied on a decision rendered in Northern I ndia Caterers (P rivate) Ltd. v. State of P unjab , reported in AI R 1967 SC 1581 . This Court, in Bandhana Goala (supra), took note of the fact that there are two alternative remedies open and available to the Government to deal with trespassers: the first one is under Rule 18 and the second one is when Government chooses to do so, by filing a suit in the civil court. There was no guidance in the Rule or under the provisions of the ALRR as to under what circumstance the first remedy will be invoked and the second remedy will not be? The liberty of picking and choosing remedies vested in the Government and, in absence of any clear bar in approaching the civil court to evict encroachers, in Bandhana Goala (supra), this Court held that Rule 18 is discriminatory, null and void and violative of Article 14 of the Constitution of India.
16. At this juncture, it is considered relevant to take note of Section 154(1)(n), 154(2) and Section 154-A. The same are quoted below:
" 154 (1) *** *** ***
(n) Any matter regarding ejectment of any person from a land over which no person has acquired the right of a proprietor, land-holder or Settlement-holder and the disposal of any crop raised, or any building or other construction erected without authority on such land.
154(2) In all the above cases jurisdiction shall rest with the revenue authorities only."
"154-A. (1) Notwithstanding anything contained in any judgement decree or order of any court, any notice served or any action taken or any penalty imposed to any ejectment done under sub-rules (1), (2), (3a) and (3b), (4), (5) and (5a) of rule 18 of the Settlement Rules made under the Regulation shall be and always be deemed to have been validly done.
(2) No suit or other proceeding shall be maintained or continued in any court against the Government or any person or authority for any act done or purported to have been done under sub-rules (1), (2), 6 (3a) and (3b), (4), (5) and (5a) of Rule 18 of the Settlement Rules made under the Regulation.
(3) No court shall enforce any decree or order against the Government or any other person for any action taken or purported to have been taken under sub-rules (1), (2), (3a) and (3b), (4), (5), and (5a) of Rule 18 of the Settlement Rules made under the Regulation.
17. Section 154-A was inserted in the ALRR along with Section 154(1)(n) by the Assam Act No. XXIX of 1971, published in the Assam Gazette (Extraordinary) dated 26.02.1971 to come into force at once.
18. The Full Bench, in Daulatram Lakhani (supra), was considering the question as to whether a civil court has jurisdiction to entertain a suit which challenges, or is connected with, any act done or purported to have been done under Rule 18 of the Settlement Rules, framed under the ALRR, and, if yes, under what circumstances? The very formulation of the question belies the contention of Mr. Roy that Rule 18 was non-existent till the year 1997.
19. This Court, in Daulatram Lakhani (supra), observed as follows:
"6. Section 154(1) read with its sub-Section (2) of the Regulation has created express bar in civil court exercising jurisdiction over any of the matters covered by Section 154(1). In so far as Section 154-A is concerned, the same was inserted in the Regulation along with Section 154(1)(n) by the Assam Act No. XXIX of 1971. These provisions had found place in the Regulation after Rule 18 of the Rules was held to be violative of Article 14 of the Constitution by this Court in Bandhana Goala v. Assam Board of Revenue, AIR 1972 Assam 11, which view had been taken by placing reliance on Northern India Caterers (Pvt.) Ltd. v. State of Punjab, AIR 1967 SC 1581. The judgment of this Court was rendered on 4th June, 1971 and:
the Bill inserting the aforesaid provision was introduced in the Assembly 28.10.71 (sic). The relevant part of the Statement of Objects and Reasons relating to the aforesaid insertion reads as below:
The validity of Rule 18 of the Settlement Rules relating to eviction from the land over which no person has acquired the rights of a proprietor, 7 land-holder or settlement-holder had been challenged in the Court of law on the ground that an alternative remedy of approaching the Court was never resorted to nor is it intended to do so, it is necessary to oust the jurisdiction of the Court in this regard by amending Section 154 of the Assam Land & Revenue Regulation, 1886:..."
20. With insertion of Section 154(1)(n) and Section 154-A by the amendment of 1971, the defect and infirmity found by this Court in Bandhana Goala (supra) while holding Rule 18 to be ultra vires was cured. Notwithstanding the ouster of jurisdiction, this Court, in Daulatram Lak hani (supra), held that civil court's jurisdiction would not be barred in the following cases:
(i) When the order under Rule 18 is patently illegal or without jurisdiction;
(ii) Where the remedy provided by the Regulation to adjudge the objection raised is not sufficient;
(iii) Where complicated questions relating to title are involved; or
(iv) Where the plaintiff seeks declaration of his title over the land from which he is sought to be evicted.
21. Though Mr. Roy argued that the finding recorded by the learned Courts below that the plaintiff could not prove adverse possession is perverse, he failed to point out before the Court as to what relevant evidence of the plaintiff had not been correctly appreciated or what part of the evidence of the plaintiff had been overlooked? On a perusal of the evidence on record, it becomes clear that the assertion of the plaintiff was with regard to her possession in respect of the purchased 2½ Katha of land for about 30 years. There was no evidence on the side of the plaintiff indicating any long possession in Dag No. 744, which is abutting her aforesaid 2 ½ Katha of land. In her evidence, she had categorically stated that the Government land in Dag No. 744 is adjacent to her land in Dag No. 743 of Patta No. 101. Therefore, I am of the considered opinion that in exercise of jurisdiction under Section 100 CPC, interference with the aforesaid finding of fact, in absence of any perversity, is not warranted. Though Mr. Roy is correct in submitting that the learned Lower Appellate Court had indicated in the judgment that both sides had adduced evidence, I am unable to agree with the submission 8 of Mr. Roy that merely because such a statement finds place in the judgment, the impugned judgment of the learned Lower Appellate Court is vitiated. The learned Lower Appellate Court marshalled the evidence which, naturally, do not contain any evidence of the defendants.
22. It is sought to be urged by Mr. Roy that, in the instant case, the conditions precedent for invocation of power under Rule 18(2), such as, the land in question has to be reserved for roads, or the same has to be roadside land, etc., are palpably absent and, therefore, the notice issued under Rule 18(2) is not sustainable in law. It is necessary to observe that no foundation to that effect was laid in the plaint and the suit was filed only on the premise that the same was under hostile possession of the plaintiff for more than 30 years and, thereby, the plaintiff had acquired the right of adverse possession.
23. In ordinary circumstances, it may not be permissible for the plaintiff to seek a declaration of title on the basis of adverse possession as the plea of adverse possession can be raised by way of shield and not as a sword. However, as the plaintiff was compelled to approach the Court because of the issuance of notice under Rule 18 of the Settlement Rules, I am of the considered opinion that there cannot be any bar because the plea of adverse possession was taken by the plaintiff as a shield against the notice under Rule 18.
24. The purpose of giving boundary in a notice is to facilitate identification of the land and, ordinarily, it is expected that such a notice will contain the area or boundary. However, absence of boundary in the instant case may not be a vitiating factor because it appears to the Court that there is no dispute with regard to the identification of the land as the plaintiff, though claimed the right of adverse possession over the 4 Lechas of land, she failed to substantiate her claim in her evidence. The reliance placed by Mr. Roy on the judgment of the Apex Court in the case of Thum m ala K rishna R ao (supra) is not attracted in the fact situation of the instant case. In Thum m ala K rishna R ao (supra), there was a genuine dispute with regard to the question whether the Government was owner of the property, in question, from which eviction was sought to be effected and it is in this circumstance the Apex Court had ruled that the summary remedy provided under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905 for 9 eviction cannot be resorted to when there is dispute with regard to title and such question of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. In the instant case, there is no such question involved and the admitted case of the plaintiff is that she was in possession of a Government land, which is covered by Dag No. 744.
25. In view of the aforesaid discussion, I am of the considered opinion that the appellant has failed to make out any case for interference and, accordingly, the appeal is dismissed. The substantial questions of law are answered in terms of the above. No cost.
26. At this stage, Mr. Roy submits that if the Government is still desirous of evicting the appellant, they may do so but only after measuring the patta land of the appellant as well as the Government land under Dag No. 744 and, in no circumstance the appellants should be evicted from their own land.
27. It is needless to say that the defendants will ensure that the appellants are not evicted from their patta land.
JUDGE RK 10 X two remedies were available to the Government in effecting eviction of encroachers as the Government's right to vacate trespassers by recourse to civil court is not barred under the Rule and, thus, X 11 154A. [Now section 54 of the Code Civil Procedure, 1908 (Act V of 1908] (1) Notwithstanding anything contained in any judgement decree or order of any court, any notice served or any action taken or any penalty imposed to any ejectment done under sub-rules (1), (2), (3a) and (3b), (4), (5) and (5a) of rule 18 of the Settlement Rules made under the Regulation shall be and always be deemed to have been validly done. (2) No suit or other proceeding shall be maintained or continue in any court against the Government or any person or authority for any act done or purported to have been done under sub-rules (1), (2), (3a) and (3b), (4), (5) and (5a) of Rule 18 of the Settlement Rules made under the Regulation. (3) No court shall enforce any decree or order against the Government or any other person for any action taken or purported to have been taken under sub-rules (1), (2), (3a) and (3b), (4), (5), and (5a) of Rule 18 of the Settlement Rules made under the Regulation.
Matters exempted from cognisance of Civil Court 154.(1) Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following:-- (a) Questions as to the validity or effect of any settlement, or as to whether the conditions of any settlement are still in force; (b) Questions as to the amount of revenue tax, cess, or rate to be assessed; and the mode, or principle of assessment; (c) The formation of the record-of-rights, or the preparation, signing, or alteration of any document contained therein; (d) Claims of persons to perfect partition; (e) Claims of persons to imperfect partition except in cases in which a perfect partition could not be claimed from, and been refused by, the revenue authorities on the ground that the result of such partition would be to form a separate estate liable for an annual amount of revenue less than five rupees. (f) The distribution of the land or allotment of the revenue on partition; (g) Claims connected with, or arising out of the collection of land revenue, or any process for the recovery of an arrear of land revenue or any other enactment for the time being in force, realisable as an arrear of land revenue; (h) Claims to occupy or resort to lands under sections 13 and 14, and disputes as to the use and enjoyment of such lands between persons permitted to occupy or resort to the same; (i) Claims to have an 12 allotment made under section 13 or section 14, and objection to the making of such allotment; (j) Claims to a remission or refund of any revenue, cess tax, rate fee, or fine payable or paid under this Regulation or liable under any enactment for the time being in force as an arrear of land revenue; (k) Claims to set aside a decision passed in accordance with an award or arbrtiators; (l) Claims to any office connected with the revenue administration or to any emolument appertaining to such office, or in respect of any injury caused by exclusion, suspension or removal therefrom; and (m) Any matter respecting which an order expressly declared by this Regulation to be final, subject to the provisions of section 151, has been passed. (n) Any matter regarding ejectment of any person from a land over which no person has accrued the right of a proprietor, landholder or Settlement holder and the disposal of any crop raised, or any building or other construction erected without authority on such land. (2) In all the above cases jurisdiction shall rest with the revenue authorities only. (3) Notwithstanding anything in section 265 (Inserted as Section 154-A. by Assam Act XXIX of 1971) or section 396 of the code of Civil Procedure, a Civil Court may, in the case of claim for an imperfect partition with respect to which its jurisdiction is not barred by this section, exercise the same powers in making the partition of a revenue-paying estate as it is competent to exercise in making the partition of a revenue-free estate. (4) When a Civil Court has made an imperfect partition of a revenue-paying estate the amount of revenue for which each portion of the divided estate is, as between that portion and the other portions to be liable shall be determined by the Deputy Commissioner in the same manner as if the partition had been carried out by himself under Chapter VI of this Regulation. 154A. [Now section 54 of the Code Civil Procedure, 1908 (Act V of 1908] (1) Notwithstanding anything contained in any judgement decree or order of any court, any notice served or any action taken or any penalty imposed to any ejectment done under sub-rules (1), (2), (3a) and (3b), (4), (5) and (5a) of rule 18 of the Settlement Rules made under the Regulation shall be and always be deemed to have been validly done. (2) No suit or other proceeding shall be maintained or continue in any court against the Government or any person or authority for any act done or purported to have been done 13 under sub-rules (1), (2), (3a) and (3b), (4), (5) and (5a) of Rule 18 of the Settlement Rules made under the Regulation. (3) No court shall enforce any decree or order against the Government or any other person for any action taken or purported to have been taken under sub-rules (1), (2), (3a) and (3b), (4), (5), and (5a) of Rule 18 of the Settlement Rules made under the Regulation.
Note (Note below section 154 has been substituted .................