Gauhati High Court
Hadi Hussain Sarkar And 7 Ors vs The Deputy Commissioner on 14 December, 2018
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010198932018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 263/2018
1:HADI HUSSAIN SARKAR AND 7 ORS
RESIDENT OF VILLAGE CHANDERGAON, PO GERAMARI, PS GAURIPUR,
DIST DHUBRI, ASSAM
2: ATOWAR RAHMAN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
3: LEGAL HEIRS OF LATE KOBAD HUSSAIN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
3.1: MOKTAR HUSSAIN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
3.2: SATTAR HUSSAIN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
Page No.# 2/4
3.3: ALTAF HUSSAIN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
4: LEGAL HEIRS OF ANOWAR HUSSAIN SARKAR
SAHIJUL HOSSAIN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
5: LEGAL HEIRS OF SAHIJUL ISLAM SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
5.1: SAZID HUSSAIN SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSAM
5.2: RAFIQUL ISLAM SARKAR
RESIDENT OF VILLAGE CHANDERGAON
PO GERAMARI
PS GAURIPUR
DIST DHUBRI
ASSA
VERSUS
1:THE DEPUTY COMMISSIONER, DHUBRI AND ANR
REPRESENTING THE STATE OF ASSAM
2:THE CHAIRMAN OF RANGAMATI CO. OP FARMING LTD
Page No.# 3/4
REGD. FIRM UNDER REGD. NO D.21/56-57 DT. 01.09.1956 PS GAURIPUR
DIST DHUBRI (ASSAM
Advocate for the Petitioner : MR. M H RAJBARBHUIYAN
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
14.12.2018 Heard Mr. M. H. Rajbarbhuiyan, the learned counsel for the appellant.
The present appellants filed Title Suit No. 26/2010 for declaration of their status as occupancy tenants under the pro-forma defendant a co-operative farm. It is the case of the plaintiffs/appellants that a plot of land measuring 25 Bighas was settled on an annual rent of Rs.2 with premium of Rs.100 per Bigha by the said Co-operative Farming Society to the predecessor-in-interest of the plaintiff/appellant. On the death of the predecessor in interest, the plaintiffs/appellants inherited the same and leased out a part of the said land to various parties setting up mobile tower. The land is not Govt. Khas land but the respondent Govt. more specifically the Deputy Commissioner, Dhubri served a notice under Rule 18 (2) of the Assam Land and Revenue Regulation 1886 in Encroachment Case No.308/335 notifying eviction from 10 Bighas 3 Katha 5 Lechas of land which is a part of the settled 25 Bighas of land.
The State of Assam was not impleaded as the defendant but the Deputy Commissioner, Dhubri was impleaded. The suit proceeded ex-parte against the defendants/respondents but the learned trial court held that the plaintiffs/appellants failed to prove that the co-operative society was settled with the said land from whom they derived it the status of occupancy tenant. The said finding of the trial court was upheld by the First Appellate Court, resulting in the second appeal.
Mr. Barbhuiyan submits that the finding with regard to the maintainability of the suit Page No.# 4/4 because of non-impleadment of the State of Assam as the defendant is wrong. In fact, relying in the Case of the District Collector, Srikakulam & Others -vs- Bagathi Krishna Rao & Another, (2010) 6 SCC 427, Mr. Barbhuiyan submits that if the suit was not maintainable for non-impleadment of the State of Assam, the First Appellate Court ought to have remanded the same thereby giving a chance to implead the necessary party. It is further stated that the appellants submitted the land holding certificate issued by the concerned Circle Officer and that is sufficient proof that the appellants are endowed with the status of occupancy tenant.
Considered the submission of the learned counsel, the status of occupancy tenant cannot be acquired on a Govt. land. In order to acquire the status of occupancy tenant certain conditions are to be fulfilled under the landlord on whom the land must be temporarily settled by the Government. The conditions are laid down in the Assam Temporarily Settled Areas Tenancy Act, 1971. Section 2(6) of the said Act of 1971 specifically stipulates that Land owned by the State Government is outside the purview of the said Act, 1971.
On close scrutiny of the findings of the courts below such settlement order could not be produced in order to show that the Rangamati Co-operative Farming was settled temporarily the land from whom the predecessor-in- interest of the appellants claimed to have got by way of settlement on rent. The status of occupancy tenant cannot be declared over the Govt. Khas land and as such, I do not find any substantial questions of law to be formulated and admit this second appeal.
Accordingly, the second appeal stands dismissed.
JUDGE Comparing Assistant