Gauhati High Court
WP(C)/4962/2014 on 17 February, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/26
GAHC010015472014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) no. 4941/2014
Sri Rathindra Rajkhowa
S/o Late Mihir Chandra Rajkhowa
R/o Village - South Amolapatty,
P.O. Mohanaghat, P.S. Dibrugarh,
District - Dibrugarh, Assam
..........Petitioner
-Versus-
1. The State of Assam
represented by Secretary of the Revenue, Government of Assam,
Guwahati - 6
2. Assam Board of Revenue
Represented by Chairman, Panbazar,
Dispur, Guwahati - 1
3. The Additional Deputy Commissioner,
Kamrup [M], Guwahati - 1
4. Assistant Settlement Officer/Circle Officer,
Dispur Revenue Circle, Wireless,
Guwahati -6
5. Smti. Anima Barua @ Dekamaji
W/o - Late Gopinath Barua @ Dekamaji
6. Smti. Ranibala Dekamaji
W/o - Late Upen Dekamaji
7. Sri Biswajit Dekamaji
S/o - Late Upen Dekamaji
8. Sri Dhaijya Ram Barua @ Dekamaji
S/o Late Bhatiram Lalung @ Dekamaji
Respondent nos. 5 to 8 are R/o Lalung Gaon, Betkuchi, P.O. & P.S.-
Garchuk, Guwahati, Kamrup [M], Assam ...................Respondents Page No.# 2/26 Writ Petition (C) no. 4959/2014 Mrs. Swarnalata Gogoi W/o Sri Ballav Chandra Gogoi R/o Village - Chunpurahabi, P.O. Nagagaon, District - Sivasagar, Assam ...........Petitioner
-Versus-
1. The State of Assam represented by Secretary of the Revenue, Government of Assam, Guwahati - 6
2. Assam Board of Revenue Represented by Chairman, Panbazar, Dispur, Guwahati - 1
3. The Additional Deputy Commissioner, Kamrup [M], Guwahati - 1
4. Assistant Settlement Officer/Circle Officer, Dispur Revenue Circle, Wireless, Guwahati -6
5. Smti. Anima Barua @ Dekamaji W/o - Late Gopinath Barua @ Dekamaji
6. Smti. Ranibala Dekamaji W/o - Late Upen Dekamaji
7. Sri Biswajit Dekamaji S/o - Late Upen Dekamaji
8. Sri Dhaijya Ram Barua @ Dekamaji S/o Late Bhatiram Lalung @ Dekamaji Respondent nos. 5 to 8 are R/o Lalung Gaon, Betkuchi, P.O. & P.S.- Garchuk, Guwahati, Kamrup [M], Assam ...................Respondents Writ Petition (C) no. 4960/2014 Sri Diploo Konwar S/o Sri Dipak Chandra Konwar R/o Village - Demow, P.O. & P.S. Sivasagar, District - Sivasagar, Assam ...............Petitioner Page No.# 3/26
-Versus-
1. The State of Assam represented by Secretary of the Revenue, Government of Assam, Guwahati - 6
2. Assam Board of Revenue Represented by Chairman, Panbazar, Dispur, Guwahati - 1
3. The Additional Deputy Commissioner, Kamrup [M], Guwahati - 1
4. Assistant Settlement Officer/Circle Officer, Dispur Revenue Circle, Wireless, Guwahati -6
5. Smti. Anima Barua @ Dekamaji W/o - Late Gopinath Barua @ Dekamaji
6. Smti. Ranibala Dekamaji W/o - Late Upen Dekamaji
7. Sri Biswajit Dekamaji S/o - Late Upen Dekamaji
8. Sri Dhaijya Ram Barua @ Dekamaji S/o Late Bhatiram Lalung @ Dekamaji Respondent nos. 5 to 8 are R/o Lalung Gaon, Betkuchi, P.O. & P.S.- Garchuk, Guwahati, Kamrup [M], Assam ...................Respondents Writ Petition (C) no. 4962/2014 Sri Prabhat Chandra Kalita W/o - Late Mohan Chandra Kalita R/o Melachakar, Ward No. 10 P.O. Sivasagar, District - Sivasagar, Assam ...............Petitioner
-Versus-
1. The State of Assam represented by Secretary of the Revenue, Government of Assam, Guwahati - 6
2. Assam Board of Revenue Represented by Chairman, Panbazar, Dispur, Guwahati - 1
3. The Additional Deputy Commissioner, Kamrup [M], Guwahati - 1 Page No.# 4/26
4. Assistant Settlement Officer/Circle Officer, Dispur Revenue Circle, Wireless, Guwahati -6
5. Smti. Anima Barua @ Dekamaji W/o - Late Gopinath Barua @ Dekamaji
6. Smti. Ranibala Dekamaji W/o - Late Upen Dekamaji
7. Sri Biswajit Dekamaji S/o - Late Upen Dekamaji
8. Sri Dhaijya Ram Barua @ Dekamaji S/o Late Bhatiram Lalung @ Dekamaji Respondent nos. 5 to 8 are R/o Lalung Gaon, Betkuchi, P.O. & P.S.- Garchuk, Guwahati, Kamrup [M], Assam ...................Respondents Advocates :
For the Petitioner : Mr. S.K. Goswami, Advocate For the Respondent nos. 1 - 4 : Mr. P.S. Deka, Standing Counsel, Revenue & Disaster Management Department For the Respondent nos. 7 - 8 : Mr. R.S. Baishya, Advocate Date of Hearing & Judgment : 17.02.2022 BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [ORAL] All these 4 [four] writ petitions, that is, W.P.[C] no. 4941/2014, W.P.[C] no. 4959/2014, W.P.[C] no. 4960/2014 and W.P.[C] no. 4962/2014, preferred under Article 226 of the Constitution of India, are directed against a common judgment and order dated 04.08.2014 passed by the learned Assam Board of Revenue ['the Revenue Board', for short] in 5 [five] nos. of revenue appeals. By the said common judgment and order dated 04.08.2014, the learned Revenue Board had disposed of 5 [five] nos. of revenue appeals. Aggrieved by the said common judgment and order dated 04.08.2014, these 4 [four] writ petitions have been preferred before this Court by 4 [four] writ petitioners who were appellants in 4 [four] of Page No.# 5/26 those 5 [five] revenue appeals.
2. The writ petition, W.P.[C] no. 4941/2014 has been preferred against Revenue Appeal Case no. 62RA/2012-2013; the writ petition, W.P.[C] no. 4960/2014 has been preferred against Revenue Appeal Case no. 63RA/2012-2013; the writ petition, W.P.[C] no. 4962/2014 has been preferred against Revenue Appeal Case no. 64RA/2012-2013; and the writ petition, W.P.[C] no. 4959/2014 has been preferred against Revenue Appeal Case no. 61RA/2012- 2013. All those revenue appeals were preferred under Section 147 of the Assam Land and Revenue Regulation, 1886 ['the Regulation, 1886', for short] against the four separate orders passed by the Additional Deputy Commissioner [Revenue], Kamrup [M] which were as follows :- RA[M]62/2012-2013 dated 27.06.2013; RA[M]64/2012-2013 dated 27.06.2013; RA[M]66/2012-2013 dated 27.06.2013 and RA[M]59/2012-2013 dated 26.06.2013 respectively.
3. The genesis of the litigation is a plot of land measuring 11 Bighas 2 Kathas 7 Lessas [11B-02K-07L], covered by different Dag numbers and Periodic Patta numbers, located in Village - Betkuchi, Mouza - Beltola within the Kamrup Metropolitan District [hereinafter referred to as 'the original plot of land', for convenience]. 3.1 One Bhati Ram Lalung was the owner of the original plot of land. Bhati Ram Lalung had three sons viz. [i] Gopinath Barua @ Dekamaji; [ii] Upen Ram Barua @ Dekamaji; and [iii] Dhaijya Ram Barua @ Dekamaji. After the death of Late Bhati Ram Lalung, the original plot of land devolved upon his three sons, mentioned above. During the lifetimes of the said three sons of Late Bhati Ram Lalung, two of his sons viz. [i] Gopinath Barua @ Dekamaji and [ii] Upen Ram Dekamaji @ Dekamaji executed two Power of Attorneys vide Registered Deed no. 2703/1996 dated 07.06.1996 and Registered Deed no. 3087/1996 dated 10.07.1996 in favour of their brother, Sri Dhaijya Ram Barua @ Dekamaji [the common respondent no. 8 in these writ petitions], whereby, they appointed Sri Dhaijya Ram Barua @ Dekamaji as their attorney firstly, to negotiate with the intending purchaser/purchasers for sale of the original plot of land; secondly, to take advance consideration[s] while executing agreement[s] for sale of the original plot of land on their behalf; thirdly, to obtain the sale permission[s] from the Page No.# 6/26 concerned authorities to effect the transfer of the original plot of land; fourthly, to execute register sale deed[s] in respect of the original plot of land; and fifthly, to give full consideration receipt[s] for different parcels of land out of the original plot of land amongst other purposes.
4. In course of time, 4 [four] parcels of land out of the original plot of land came to be purchased by the four writ petitioners herein in the following manner. 4.1. The writ petition, W.P.[C] no. 4941/2014 pertains to a parcel of land measuring 1 Katha and 10 Lessas [01K-10L] [hereinafter referred to as 'Plot no. 1', for convenience] out of the original plot of land, which was purchased vide a registered sale deed being Sale Deed no. 5025/1996 dated 30.07.1996 by the petitioner, Sri Rathindra Rajkhowa. 4.2. The writ petition, W.P.[C] no. 4960/2014 pertains to a parcel of land measuring 2 Kathas [hereinafter referred to as 'Plot no. 2', for convenience] out of the original plot of land, which was purchased vide a registered sale deed being Sate Deed no. 5022/1996 dated 30.07.1996 by the petitioner, Sri Diploo Konwar.
4.3. The writ petition, W.P.[C] no. 4962/2014 pertains to a parcel of land measuring 1 Katha and 10 Lessas [hereinafter referred to as 'Plot no. 3', for convenience] out of the original plot of land, which was purchased vide a registered sale deed being Sale Deed no. 3613/1996 dated 31.07.1996 by the petitioner, Sri Prabhat Chandra Kalita. 4.4. The writ petition, W.P.[C] no. 4959/2019 pertains to a parcel of land measuring 1 Katha and 10 Lessas [hereinafter referred to as 'Plot no. 4', for convenience] out of the original plot of land, which was purchased vide a registered sale deed being Sale Deed no. 3610/1996 dated 31.07.1996 by the petitioner, Sri Swarnalata Gogoi. 4.5. Amongst the parcels of land mentioned in the registered Power of Attorney no. 2703/1996 and the registered Power of Attorney no. 3087/1996 were the afore-stated 4 [four] nos. of parcels of land, that is, Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 were included.
4.6. There is no dispute to the fact that all the four sale deeds, referred to above, were executed by Sri Dhaijya Ram Barua @ Dekamaji, son of Late Bhati Ram Lalung on the strength of the two Power of Attorneys being registered Power of Attorney no. 2703/1996 Page No.# 7/26 dated 07.06.1996 and registered Power of Attorney no. 3087/1996 dated 10.07.1996.
5. After sale and purchase of the afore-stated parcels of land being Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4, the writ petitioners took possession of the same at a time when a re-settlement operation was also in progress. As the writ petitioners had purchased the afore- stated parcels of land [Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4] out of the original plot of land by executing registered sale deeds, mentioned above, and as they were found in possession of the afore-stated parcels of land, the names of the writ petitioners came to be mutated against their purchased plots viz. Plot no. 1, Plot no. 1, Plot no. 3 and Plot no. 4 during the re-settlement operation by way of Chitha [Field] Mutations. 5.1. After such Chitha [Field] Mutations were effected, the Assistant Settlement Officer, Guwahati issued a Mutation Certificate each, all dated 06.01.1998, in favour of each of the writ petitioners mentioning the fact of Chitha [Field] Mutation in respect of their respective parcel of land.
5.2. For ready reference, the contents of one of such Mutation Certificate issued in favour of the writ petitioner in W.P.[C] 4959/2014 are extracted herein below :-
"This is to certify that the name of Smti Swarnalata Gogoi, wife of Sri Ballav Chandra Gogoi is hereby mutated alongwith the pattadars on the basis of purchasing land and considering possession over the land measuring 1 [one] Katha 10 [ten] Lessas bearing K.P. Patta No. 155 of Dag No. 508 [Old]/588 [New] of Village - Betkuchi under Mouza - Beltola. Since the final records of this village are yet to be prepared, the instant certificate has been issued in the meantime."
5.3. In course of time, periodic pattas were also came to be issued in favour of the writ petitioners reflecting their names, recording their status as land holders and with determination of the amounts of land revenue [Khajna] payable against their respective parcel of land i.e. Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 respectively.
6. The learned counsel for the parties have submitted, in unison, that one of the three sons of Late Bhati Ram Lalung viz. Upen Ram Barua @ Dekamaji expired prior to 11.09.2012, which date bears relevance in the lis. The respondent no. 6 and the respondent no. 7 in these 4 [four] writ petitions are the wife and son respectively of Late Upen Ram Barua @ Dekamaji.
Page No.# 8/26 6.1. The learned counsel for the parties are also in agreement that as on 11.09.2012, Sri Gopinath Barua @ Dekamaji was alive. There is no dispute to the fact that Gopinath Barua @ Dekamaji expired subsequently on 27.04.2013. The respondent no. 5, in this batch of 4 [four] writ petitions, is the wife of Late Gopinath Barua @ Dekamaji being his legal heir/representative.
7. As can be seen from the contents of the Mutation Certificates [supra], Chitha [Field] Mutation in favour of the writ petitioners were done on the premise that there were the purchasers of the 4 [four] parcels of land [Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4] by way of registered sale deeds and they were found in possession of their respective parcel of land from a period prior to the date of issuance of the mutation certificates, which were dated 06.01.1998.
8. The source of the present litigation is filing of few applications by Gopinath Barua @ Dekamaji, the respondent no. 6 and the respondent no. 7 as applicants, on 11.09.2012, before the Additional Deputy Commissioner [Revenue], Kamrup [M]. By those applications, the applicants sought cancellation of the mutations, done by the Assistant Settlement Officer in favour of the writ petitioners during the re-settlement operation in respect of Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4. Upon receipt of those applications, the Additional Deputy Commissioner, Kamrup [M] called for reports from the Circle Officer, Dispur Revenue Circle. After receipt of the reports from the Circle Officer, the Additional Deputy Commissioner, Kamrup [M] treating those applications as appeals under ' Section 47 ' read with Section 151 of the Regulation, 1886, directed the applications to be registered as revenue appeals. Notices were issued to the parties including the writ petitioners. The Additional Deputy Commissioner, Kamrup [M] proceeded to consider the revenue appeals and thereafter, to dispose of the same by separate orders, already mentioned above, with similar observations. 8.1. It was recorded in those orders that after notices were served upon the writ petitioners, they submitted written statements but they were found unrepresented at the time of final hearing. In his orders, the Additional Deputy Commissioner had observed that the mutations were effected by the Assistant Settlement Officer in the name of the writ petitioners without receiving any applications from the writ petitioners under Sections 50, 51 Page No.# 9/26 and 52 of the Regulation, 1886 and without issuing notices to the pattadars. It was observed that the parcels of land were originally in the name of Bhati Ram Lalung and after the death of Bhati Ram Lalung, the names of his 3 [three] sons were mutated in his place. He noted the factum of death of Gopinath Barua @ Dekamaji and Upen Ram Barua @ Dekamaji prior to the dates of passing his orders. He also noted about the purchase of the parcels of land by registered sale deeds. After such observations, the Additional Deputy Commissioner ordered cancellation of the mutations made in favour of the writ petitioners by the Assistant Settlement Officer primarily on the grounds that the petitioners did not file any applications for mutation. The writ petitioners were advised to leave possession of Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 respectively. Liberty was, however, given to the writ petitioners to file applications in the office of the Circle Officer for mutation of their names as per the provisions of the Regulation, 1886.
8.2. In those orders, the Additional Deputy Commissioner had noted certain discrepancies appearing in the registered sale deeds to the effect that the deed nos. of the registered power of attorneys were wrongly mentioned.
9. Aggrieved thereby, the four writ petitioners preferred the revenue appeals, mentioned above, against those orders passed by the Additional Deputy Commissioner with similar observations and the same were disposed of by the learned Revenue Board by the common judgment and order dated 04.08.2014, which is impugned herein. 9.1. The learned Revenue Board found the issue that arose of consideration in the appeals for determination was whether the appellants were entitled to get mutation in respect of their purchased parcels of land.
9.2. The learned Revenue Board, by the impugned common judgment and order, dismissed all the appeals preferred by the writ petitioners as the appellants. The learned Revenue Board had also set aside the orders passed by the Additional Deputy Commissioner, whereby, the mutations effected in favour of the writ petitioners were cancelled. The learned Revenue Board had also discarded the mutation certificates issued in respect of the writ petitioners as invalid. The learned Revenue Board had further found fault as regards the entries in the respective registered sale deeds. The learned Revenue Board had also taken note of the fact that the Additional Deputy Commissioner had suo motu converted the applications filed by Page No.# 10/26 the three applicants - Upen Ram Baruah @ Dekamaji, the respondent no. 6 and the respondent no. 7 respectively, to exercise the powers under Section 151 of the Regulation, 1886.
10. I have heard Mr. S.K. Goswami, learned counsel for the petitioners in all the writ petitions; Mr. P.S. Deka, learned Standing Counsel, Revenue & Disaster Management Department for the respondent nos. 1- 4; and Mr. R. Baishya, learned counsel for the respondent nos. 7 and 8. Office notes indicate that the respondent 5 and the respondent no. 6 had entered appearance through their engaged counsel by filing a Vakalatnama. None has appeared for those respondents today call. On the earlier occasions also when the writ petitions were listed and taken up, the learned engaged counsel for the respondent nos. 5 and 6 was found absent.
11. Mr. Goswami, learned counsel for the petitioners has submitted that initially, there was some misunderstanding between the three brothers, who are descendants of Late Bhati Ram Lalung, with Gopinath Barua @ Dekamaji/his legal representatives i.e. the respondent no. 5 and Upen Ram Barua @ Dekamaji/his legal representatives i.e. the respondent nos. 6 and 7 on one side, and Sri Dhaijya Ram Barua @ Dekamaji i.e. the respondent no. 8 on the other side. Such misunderstanding led to filing of the applications dated 11.09.2012 before the Additional Deputy Commissioner, Kamrup [M]. However, such misunderstanding had been resolved at a later point of time.
11.1. Though there were certain discrepancies, which were insignificant in nature, crept in in the registered sale deeds, such alleged discrepancies did not have any bearing in the transactions of sale and purchase of the parcels of land, under reference, considering the fact that there is no dispute on the fact as regards execution of two registered power of attorneys by two brothers in favour of the third brother viz. Sri Dhaijya Ram Barua @ Dekamaji [the respondent no. 8]. If both the power of attorneys are taken together, all the parcels of land [Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4], allegedly in dispute herein, are found mentioned therein.
11.2. The transactions of sale and purchase were effected as far back as in the year 1996 Page No.# 11/26 when all the 3 [three] sons of Late Bhati Ram Lalung were alive. The writ petitioners took possession of the 4 [four] parcels of land, referred hereinabove, immediately after the execution and registration of the sale deeds. The applicants, who preferred the applications on 11.09.2012, had miserably failed to explain the reasons for preferring such applications after more than 15 [fifteen] years from the date of execution and registration of the said sale deeds and mutations of the names of the petitioners in the 4 [four] parcels of land, which were parts of the original plot of land.
11.3. By referring to the provisions of the Regulation, 1886, he has submitted that the Regulation, 1886 has provided for 2 [two] modes whereby the registration [mutation] can be effected. The mode by which mutations in favour of the writ petitioners in respect of Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 were effected, is a permissible mode of mutation. Thus, it was not open for the Additional Deputy Commissioner to find fault in the mode by which the mutations were effected in the cases in hand.
11.4. If the applicants were aggrieved by the mutations made in favour of the writ petitioners, then the applicants should have resorted to the remedy provided under Section 53A of the Regulation, 1886. When the applications were filed with delay of more than 15 [fifteen] years, the Additional Deputy Commissioner by-passing the statutory provisions contained in Section 53A of the Regulation, 1886, could not have converted the applications suo motu as applications under Section 151 of the Regulation, 1886. 11.5. It is his submission that when the appeals were preferred by the petitioners before the learned Revenue Board on such grounds, the learned Revenue Board had also ignored the said statutory provisions. Both the Additional Deputy Commissioner and the Revenue Board had unreasonably laid stress on the mode of mutation contained in Section 50 to Section 52 of the Regulation, 1886.
11.6. Mr. Goswami has relied in the decision of this Court in Dipak Kumar Choudhury vs. State of Assam and others, reported in 2014 [5] GLR 365, to buttress his submissions. He has further submitted that the learned Revenue Board while disposing of the appeals, had ignored a binding precedent.
11.7. Moreover, the respondent no. 8 has, in the meantime, by executing registered rectification deeds, relatable to the registered sale deeds under reference, has removed the alleged discrepancies and the said fact is evident from the affidavit filed by the respondent Page No.# 12/26 no. 8 herein. He has further submitted that the respondent no. 7 has also endorsed the same by submitting an affidavit in this batch of writ petitions.
12. Mr. Deka, learned Standing Counsel, Revenue & Disaster Management Department by responding to the submissions of the learned counsel for the petitioners, has submitted that the alleged discrepancies in the registered sale deeds seem to have been rectified with registered rectification deeds.
12.1. On a fair note, he has not denied the proposition that a decision of the jurisdictional High Court is a binding precedent for the learned Revenue Board. He has fairly submitted that when a statutory remedy is provided in the Regulation, 1886, any aggrieved person ought to have resorted to such remedy.
12.2. When the private respondents herein had/have not denied the transactions of sale and purchase of the 4 [four] parcels of land under reference and about the execution of the registered two power of attorneys under reference, containing the details of all the 4 [four] parcels of land under reference, the direction of the Board to relegate the writ petitioners to seek remedy from a competent court of civil jurisdiction appears to be unjust and arbitrary at this distant point of time.
13. Mr. Baishya, learned counsel representing the respondent no. 7 and the respondent no. 8 has referred to the averments made in the affidavit filed on behalf of the respondent no. 7 in the writ petition, W.P.[C] no. 4941/2014 on 19.07.2021. He has admitted about the execution of the two power of attorneys on the strength of which the registered sale deeds under reference were executed by the respondent no. 8 with the writ petitioners. It was due to some misunderstanding amongst the legal heirs/representatives of Late Bhati Ram Lalung, the applications seeking cancellation of mutations were filed before the Additional Deputy Commissioner. But during the intermediate period, the issues were settled amicably amongst the legal heirs/representatives of Late Bhati Ram Lalung and if mutations are restored in favour of the writ petitioners, the respondent nos. 7 and 8 have no objection.
14. I have duly considered the submissions of the learned counsel for the parties. I have Page No.# 13/26 also gone through the materials brought on record by the parties through their respective pleadings and the LCRs.
15. It may also be apposite to state that while rendering the decision, the learned Revenue Board had observed that the appellants therein i.e. the petitioners herein had a remedy to approach the executants to complete and correct their respective sale deeds as regards the parcels of land under reference. It may be mentioned that the registered Power of Attorney no. 3087/1996 was executed in respect of the original plot of land. In the case of the petitioner in W.P.[C] no. 4959/2014, the power of attorney in the sale deed was mentioned as Power of Attorney no. 2703/1996 dated 07.06.1996 in lieu of the Power of Attorney no. 3087/1996 dated 10.07.1996. During the pendency of this writ petition, the respondent no. 8 executed a registered rectification deed on 15.09.2021 whereby the alleged discrepancy in respect of the registered deed numbers of the power of attorneys have been rectified. Similarly, rectifications deeds have also been executed in respect of the other register sale deeds. The respondent no. 7 by filing an affidavit, has averred that the legal heirs/representatives of Upen Ram Barua @ Dekamaji and Gopinath Baruah @ Dekamaji have no objection to the mutations made in the names of the petitioners in the revenue records in respect of the 4 [four] parcels of land under reference which the petitioners had admittedly purchased on the strength of the registered sale deeds. The respondents had further averred that the entire matter has been settled amicably and they have no objection against the mutations effected in favour of the petitioners and they do not want to pursue any pending litigation regarding the parcels of land under reference.
16. Chapter IV of the Regulation, 1886 has provided for 'Registration'. 'Registration' is also interchangeably known as 'Mutation'. Section 50 has mentioned about the liability of persons succeeding to estates to give information of succession. It has inter alia been provided therein that every proprietor or land holder succeeding to any estate, or share in an estate, whether by transfer or inheritance, and obtaining possession of the same, shall within the stipulated time period provided therein from the date of taking possession, have to apply to the concerned Deputy Commissioner of the district for registration of his name as such Page No.# 14/26 proprietor or land holder, and of the nature and extent of the interest in respect of which the application is made. Section 51 pertains to an existing proprietor, etc., at the commencement of the Regulation, 1886, who was in possession of an estate or any share in an estate as provided or land holder and the said provision is not applicable to the cases in hand.
17. Section 52 and Section 53 have provided for the procedure about the application to be made for registration and inquiry to be caused by the Deputy Commissioner for effecting the registration. According to the said provisions, on receipt of an application, the Deputy Commissioner shall, if considers that there are sufficient grounds for proceeding with the application, publish a notice requiring all persons who object to the registration of the name of the applicant, or who dispute the nature or extent of interest in respect of which registration is applied have in a written statement of their objections, appear on a day to be specified in the notice. If an application mentions that the applicant has acquired possession of the estate, or share in an estate in respect of which he applies for registration by transfer from any person, a copy of the notice has to be served on the alleged transferor and if the alleged transferor is dead, then upon his heirs. The Deputy Commissioner has to consider the application and the objections, if any, and after an enquiry when it is found necessary to ascertain the truth of succession or assumption of charge or possession, etc. alleged in the application, shall, if it appears to him that the succession, etc. accompanied by possession has taken place or that charge has been assumed or that the applicant is in possession, as the case may be, make an order directing the registration. Thus, it can be seen that the provisions contained in Section 50 to Section 53 have provided for one mode of registration which is to be initiated on the basis of an application submitted by the person seeking registration.
18. On the other hand, the provisions under Section 53A of the Regulation, 1886 has provided for the other mode of registration, that is, registration on the basis of information otherwise than through application. Sub-section [1] of Section 53A starts with a non-obstente clause with regard to the provisions contained in Section 50 to Section 53. It has been prescribed that when the Deputy Commissioner has received information, otherwise than through an application, of any such taking of possession or assumption of charge, as is Page No.# 15/26 referred to in Section 50, he may make an order directing the registration of the name of the person so taking possession or assuming charge, provided that [a] the information has been verified by local inquiry made by an officer not bellow the rank of an Assistant Settlement Officer; or [b] notice has been published and inquiry has been held in the manner prescribed by Section 52 and Section 53 as if an application for registration had been received, from the person to whom the information relates. Thus, the provisions in sub-section [1] of Section 53A of the Regulation, 1886 has provided for the other mode of registration, notwithstanding the provisions contained in Section 50 to Section 53 of the Regulation, 1886.
19. It may be apposite to refer to the provisions of settlement operation and the re- settlement operation, as contained in the rules framed under the Regulation, 1886.
20. Settlement operations have been defined in Section 17 of the Regulation, 1886. As per Section 17, settlement operations consist one or more of the following :- [a] survey and demarcation; [b] assessment of land revenue of land; and [c] records of rights. As per Section 18 of the Regulation, 1886, when any local area or class of estates is to be settled, the State Government may issue a notification of settlement, and the notification shall inter alia [a] define the local area or class of estates to be settled; and [b] specify the settlement operations to be carried out. Rule 50 of the Settlement Rules framed under the Regulation, 1886 has provided that when the State Government declares that a local area or class of estates is under settlement, the Government may, for the purpose of carrying out operations, appoint under Section 133 of the Regulation, 1886, a Settlement Officer and one or more Assistant Settlement Officers. By a settlement operation, it ordinarily means an operation of fresh land survey, classification as per land use, assessment of new rate of revenue and preparation of record-of-rights in a notified area. When such operation is again taken up in the same manner after a fixed term of settlement, it is called re-settlement operation. During the intermediate period between the settlement operation and the re-settlement operation or between the two re-settlement operations, vast changes occur in respect of landowners, kind of pattas, areas held, land uses, etc. for which record-of-rights are to be prepared afresh by taking all admissible changes into consideration. Whenever a decision is undertaken to initiate Page No.# 16/26 a re-settlement operation, the Settlement Officer and the Assistant Settlement Officers are appointed and respective Lot Mandals and Supervising Kanungos are deputed. All relevant land records viz. chithas, jamabandis, maps and other relevant records are placed at the disposal of the Settlement Officer.
21. The Settlement Officer, appointed under Section 133 of the Regulation, 1886 by the State Government, is in-charge of the settlement of the local area or class of estates notified by the notification issued under Section 18 and all Assistant Settlement Officers are subordinates to the Settlement Officer. As per Rule 56 thereof, after a village has been surveyed and demarcated, a draft Chitha [Field Index] is to be prepared containing inter alia therein the fields in the village serially, the name of the person who is in possession of each field and the classification of each field according to a terminology previously approved by the Government. A dispute regarding ownership of land or regarding the ownership of any interest, as the case may be, is to be decided in a summary manner and on the basis of actual possession, by the Settlement Officer or an Assistant Settlement Officer. A draft Jamabandi before the stage of record registration, as per Rule 57, is to be prepared by the Settlement Officer showing inter alia the fields which have been found in possession of each proprietor or settlement holder. A detail procedure for preparation of draft Jamabandi and the stage of record attestation has been laid down in Rule 57 of the Settlement Rules. As per Rule 57, a dispute regarding ownership of land is decided in a summary manner and on the basis of actual possession. After preparation of draft Jamabandi and record attestation as per the procedure laid down in Rule 57, the Settlement Officer prepares and submits for sanction a rate report under the provisions of Section 24 of the Assam Land Revenue Re-Assessment Act, 1936 and the rules framed thereunder. As per Rule 59 of the Regulation, 1886, on receipt of the State Government's orders on the rate report, the Settlement Officer calculates the total revenue payable accordingly for each estate and shall have to enter it in the draft Jamabandi used at the record attestation. The revenue attestation of each village is taken up by the Settlement Officer and/or by an Assistant Settlement Officer, also called the Attestation Officer, at a convenient place in or near the village. A fresh extract from the draft Jamabandi showing only the total area, the total revenue as calculated, and the alterations, if any, made Page No.# 17/26 at record attestation are distributed to each proprietor or settlement-holder. A proclamation is also published in the village giving sufficient notice to proprietors and settlement holders and to call them to appear before the Attestation Officer. The Attestation Officer can hear and decide any objection which may be put forward by a person. After completion of all issues relating to record attestation, classification of fields, rates, etc. in the manner provided in Rule 59, the Settlement Officer submits the same for the order of the State Government. It has been laid down in Rule 60 of the Rules framed under the Regulation, 1886 that after receipt of the orders of the State Government and subject to such orders, the Settlement Officer makes a final copy of the Chitha and Jamabandi. Such final copy of the Jamabandi is the record-of-rights of proprietors and settlement holders within the meaning of Section 40 of the Regulation, 1886. Section 40 of the Regulation, 1886 mentions about the record-of-rights. After the above procedure, as laid down in Rule 60 of the Settlement Rules, the Settlement Officer prepares, signs and seals the periodic leases or annual leases, as the case may be, which shall correspond in all particulars with the entries of the record-of-rights. The Settlement Officer then issues a proclamation, posted in a conspicuous place in or near each village, stating the date and place at which the lease will be offered to the persons entitled to receive them. Distributions of periodic leases are to be done in the manner stated therein.
22. 'A Periodic Lease', as per Rule 1[2][d] of the Settlement Rules, means a lease granted for more than 1 [one] year and in the case of town land, a lease for a period longer than 3 [three] years. Subject to any restrictions, conditions and limitations contained therein, a periodic lease, the term of which is not less than 10 [ten] years, conveys to the lessee the right of a land-holder. Rule 64[e] of the said Rules defines a periodic lease for town lands. The periodic patta besides mentioning the period of lease, indicate the conditions. Under Section 2 [h] of the Regulation, 1886, 'Settlement-holder' means any person, other than a proprietor, who has entered into an engagement with the Government to pay land revenue and includes a land-holder. As per Section 2 [g], 'Land-holder' means any person deemed to have acquired the status of a land-holder under Section 8. Under Section 8, any person who has before or after commencement of the Regulation, 1886 acquires any such land under the lease granted by or on behalf of the Government, the term of which is not less than 10 [ten] Page No.# 18/26 years, shall be deemed to have acquired status of land-holder in respect of the land. Thus, if any patta is issued to a person either before or after the commencement of the Regulation, 1886 for a period not less than 10 [ten] years, such person acquires the status of land-holder. Under Section 9, a land-holder shall have a permanent, heritable and transferable right of use and occupancy in his land, subject to :- [a] the payment of all revenue, taxes, cesses and rates from time to time legally assessed or imposed in respect of land; [b] the reservation in favour of the Government of all quarries and of all mines, minerals and mineral oils, and of all buried treasure, with full liberty to search for and work the same, paying to the land-holder only compensation for the surface damage as estimated by the Deputy Commissioner; and [c] the special conditions of any engagement into which the land-holder may have entered with the Government.
23. Rule 4 of the Settlement Rules has inter alia provided that when a Settlement Officer has been appointed under the Regulation, 1886 for any local areas or class of estates, he can exercise powers of a Deputy Commissioner as conferred by the rules, provided that he shall not settle any land which has been expressly reserved by the Deputy Commissioner for settlement. Thus, during a re-settlement operation, a Settlement Officer or an Assistant Settlement Officer may, in exercise of powers under Clause [a] of the proviso to sub-section [1] of Section 53A of the Regulation, 1886, pass an order of registration in favour of the legal heirs of a deceased pattadar or to a reported transferee of a periodic patta land after holding summery field inquiry to ascertain title and possession of the claimant. To effect such registration, two factors are relevant - first, the title of the land and second, the possession of the land. Such changes in the revenue records are made by way of Chitha Registration i.e. the Field Index. From the said provisions, it is evident that the registration effected during a re-settlement operation is also a permissible mode of registration.
24. Clause [c] of Section 147 of the Regulation, 1886 has provided for appeal to the Settlement Officer, from orders passed by an Assistant Settlement Officer. Clause [b] of sub- section [1] of Section 148 of the Regulation, 1886 providing for the period of limitation, has mentioned that no appeal under Clause [c] of Section 147 will lie after expiry of 30 [thirty] Page No.# 19/26 days from the date of the order appealed against.
25. Reverting back to the fact situation obtaining in the cases in hand, it is found from the mutation certificates issued by the Assistant Settlement Officer that the registrations [mutations] were effected in favour of the writ petitioners in respect of Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 prior to 06.01.1998/10.09.1998. No appeals were filed against the orders of registrations [mutations] passed by the Assistant Settlement Officer in these cases. It is relevant to state that all the petitioners herein were issued periodic khiraj pattas in respect of their respective parcels of land viz. Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 as far back as in the year 2009. From the periodic khiraj pattas issued in favour of the writ petitioners, it is noticed that the pattas were issued for a lease period of 20 [twenty] years for the year 2009 to year 2029 by determining the land revenue payable by each of the writ petitioners and as such, all the petitioners have been granted the status of land-holders. The periodic khiraj pattas have mentioned that the pattas were issued by following the provisions of the Regulation, 1886.
26. While taking up the applications dated 11.09.2012, the Additional Deputy Commissioner had made a mention of the provisions of 'Section 47' and Section 151 of the Regulation, 1886. At 'Section 47' of the Regulation, 1886, it makes mention of hoe-tax or house-tax which does not have any relevancy to the issues raised before the Additional Deputy Commissioner. If the same is assumed as a typographical error for 'Section 147' of the Regulation, 1886, then it can be seen that Section 147 of the Regulation, 1886 has provided for appeals. Clause [c] of Section 147 provides for an appeal which lies to the Settlement Officer from an order passed by an Assistant Settlement Officer.
27. In the case of the petitioners herein, after completion of the re-settlement operation, the periodic leases for the period of 20 [twenty] years for the parcels of land i.e. Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 were prepared and delivered to the petitioners in the year 2009. In the periodic leases issued in favour of the petitioners, the land revenues to be payable for the parcels of land, had been assessed and duly reflected therein. With the Page No.# 20/26 issuance of the periodic leases by the periodic khiraj pattas, the petitioners have become land-holders of their respective plots of land.
28. Thus, the petitioners herein by the time the applications dated 11.09.2012 were filed before the Additional Deputy Commissioner seeking cancellation of the mutation, had acquired the status of land-holder in respect of their respective parcels of land which they had purchased from the vendors.
29. After closure of a re-settlement operation, the Deputy Commissioner becomes the ex- officio Settlement Officer. As is mentioned hereinbefore, the Settlement Officer is appointed under Section 133 of the Regulation, 1886 read with Rule 50 of the Settlement Rules when an area is declared to have come under settlement operation under Section 18 of the Regulation, 1886. As per Rule 2 [m] of the Regulation 1886, the term 'Deputy Commissioner' includes and shall be deemed always to have been included the Additional Deputy Commissioner. Thus, the Additional Deputy Commissioner is full competent to hear appeals against the decision of an Assistant Settlement Officer in terms of sub-clause [c] of Section 147 of the Regulation, 1886. Section 147[a][b][c][d] of the Regulation, 1886 is quoted hereinbelow :-
Section 147 - Appeals shall lie under this Regulation as follows - [a] to the Board from orders, original or appellate passed by a Deputy Commissioner, Settlement Officer or Survey Officer; [b] to the Deputy Commissioner, from orders passed by a Sub-Divisional Officer, an Assistant Commissioner or Extra Assistant Commissioner; [c] to the Settlement Officer, from orders passed by an Assistant Settlement Officer;
[d] to a Survey Officer, from orders passed by an Assistant Survey Officer.
30. But, there is a period of limitation prescribed for such appeals in Section 148 of the Regulation, 1886. For ready reference, Section 148 of the Regulation, 1886 is quoted Page No.# 21/26 hereunder :-
Section 148 [1] - Unless otherwise specially provided in this Regulation, or in rules issued under this Regulation, -
[a] no appeal under Section 147, clause [a] shall lie after the expiration of two months from the date of the order appealed against;
[b] no appeal under same Section, clauses [b], [c] and [d] shall lie after the expiration of thirty days from the date of the order appealed against.
[2] In computing the period prescribed for an appeal by this section, the day on which he order appealed against was passed, and the time requisite for obtaining a copy of such order, shall be excluded.
[3] An appeal may be admitted after the period of limitation prescribed therefor by this section when the appellant satisfies the Board or officer to whom he appeals that he had sufficient cause for not presenting the appeal within that period.
31. Thus, even if it is assumed that the Deputy Commissioner had treated the applications for cancellation of mutation as an appeal under Section 147 of the Regulation, 1886, then he, before entertaining such applications, had to satisfy himself as to whether the applicants had sufficient cause for not presenting such applications within the prescribed period of limitation.
But the orders of the Additional Deputy Commissioner are silent on the aspect of limitation period. As has already been mentioned above, all those applications dated 11.09.2012 were filed after a period of more than 15 [fifteen] years from the date of registration [mutation] and/or a period of more than 3 [three] years after issuance of the periodic leases in favour of the petitioners granting them the status of the land holders and those periods of delay were inexplicable and inordinate.
32. Sub-section [2] of Section 53A has already provided a specific remedy to a person if a person is aggrieved by an order directing registration [mutation] under sub-section [1] of Page No.# 22/26 Section 53A of the Regulation, 1886. Section 53A of the Regulation, 1886 reads as under :-
"Section 53A - Notwithstanding anything contained in Sections 50 to 53, where the Deputy Commissioner has received information, otherwise than through an application, of any such taking of possession or assumption of charge as is referred to in Section 50; he may make an order directing registration of the name of the person so taking possession or assuming charge;
Provided that -
[a] the information has been veritied by local inquiry made by an officer not below the rank of an Assistant Settlement Officer, or [b] notice has been published and inquiry has been held in the manner prescribed by Sections 52 and 53 as if an application for registration had been received, from the person to whom the information relates.
[2] Where any person is aggrieved by an order directing registration under this section which has been made after verification of the information received by local inquiry only, he may, within a period of three years of the date of such order, apply to the Deputy commission to have such order set aside and on receipt of such application the Deputy Commissioner shall cancel the registration and then proceed to publish the notice and hold the inquiry prescribed by Sections 52 and 53 as if an application for registration had been received from the person whose name had been registered.
33. In view of availability of such specific remedy provided in respect of a registration [mutation] done by way of the mode known as Chitha Mutation [Field Index], whether the Deputy Commissioner can exercise the powers under Section 151 of the Regulation, 1886 or not is an issue that arises for consideration in these writ petitions.
34. The said issue came up for consideration in Dipak Kumar Choudhury [supra] where the respondent no. 3 purchased a plot of land measuring 5 Bighas & 10 Lessas [05B-10L] by way of two registered sale deeds dated 04.09.2009 and dated 11.09.2007 respectively. The Page No.# 23/26 vendors of the respondent no. 3 purchased the plot of land in the year 1987 and they were granted Chitha mutation in respect of the plot of land on 18.02.2000. Similarly, Chitha mutation in respect of the respondent no. 3 was granted on 16.10.2007 on the basis of her possession. The petitioner submitted an application on 26.11.2007 seeking cancellation of the Chitha mutation basing his claim as the grandson of the original pattadar without disclosing anything about the chitha mutation granted earlier in favour of the vendors of the respondent no. 3. The Settlement Officer by his order dated 31.12.2008 cancelled the mutation granted earlier in favour of the respondent no. 3 exercising inherent power under Section 151 of the Regulation, 1886. The respondent no. 3 preferred an appeal before the Revenue Board and the Revenue Board by its judgment dated 20.08.2009 set aside the order of the Settlement Officer whereby the mutation made in favour of the respondent no. 3 was cancelled. It is in the above factual background, this Court has observed that when a specific remedy is provided under sub-section [2] of Section 53A, the recourse to inherent power under Section 151 cannot be justified and therefore, exercise of inherent power under Section 151 of the Regulation, 1886 to undo mutation and cancel sale deeds by the Settlement Officer was held to be improper.
35. Taking note of the provisions contained in Section 53A and Section 151 of the Regulation, 1886 together, the Court in Dipak Kumar Choudhury [supra] had observed as follows :-
"20. A reading of the two sections of the Land & Revenue Regulation amply shows that when a party is aggrieved by a mutation order of a subordinate authority, he can challenge the same under sub-section [2] of Section 53A. Therefore this is the specific remedy provided under the Regulation. But the Section 151 is somewhat like a revisional/inherent power and when specific remedy is available under another head, i.e. Section 53A[2], recourse by the petitioner to Section 151 is declared to be unjustified.
21. If the petitioner was aggrieved by the mutation granted to the respondent no. 3, he could have filed appeal under sub-section [2] of Section 53A of the Land & Revenue Regulation, but the petitioner failed to apply for cancellation of Page No.# 24/26 registration under the specific legal provision. Consequently the invocation of the residuary power under Section 151 by the Settlement Officer is declared to be impermissible."
36. In the cases in hand, the applicants seeking cancellation of the mutation, had failed to apply for such cancellation under the specific statutory provision, that is, Section 53A[2] of the Regulation, 1886. The Additional Deputy Commissioner, in such situation, cannot clothe himself to invoke the residuary power available to him under Section 151 of the Regulation, 1886 to cancel the chitha mutations effected in favour of the petitioners. In such view of the matter, the orders passed by the Additional Deputy Commissioner purportedly under Section 151 of the Regulation, 1886 are not sustainable in law and the same are liable to be set aside.
37. It is apposite to refer the decision of this Court in Dhebor Gohain Baruah vs. Assam Board of Revenue at Guwahati and others, reported in [2018] 3 GLR 133. In that case, the respondent nos. 2, 3 and 4 questioned the validity of a mutation order before the Assam Board of Revenue by filing an application under Section 151 of the Regulation, 1886 after 20 [twenty] years of such mutation and the Court had observed that no right of any immovable property get transferred without a registered document. But the Revenue Board, in that case, overlooked that aspect and interfered with a mutation order passed 20 [twenty] years earlier. In that connection, the Court had observed as under :-
13....... when the mutation order was appealable under Section 147 of the Regulation and the limitation period is also prescribed for such Appeal, the respondent nos. 2, 3 and 4 could not have filed the Section 151 application and convert it into an appeal and on that basis maintain the belated challenge, against a mutation order passed in favour of the petitioner's father, Gopal Singh Gohain Baruah. The Revenue Board undoubtedly possess the revisional power under Section 151 of the Regulation but in my considered view, such power could not have been exercised on a matter which stood concluded 20 years earlier."
Page No.# 25/26
38. The Revenue Board noted the fact that the applicants approached the Additional Deputy Commissioner after 16 [sixteen] years of mutation in a surprising manner. The Revenue Board was also of the view that the applicants i.e. the petitioners herein, were entitled to get mutation. It is settled that for a decision on such issue, only two factors are relevant, firstly, the title of the particular plot of land and secondly, the possession of the particular plot of land. It was not the case of the applicants before the Additional Deputy Commissioner that they had the title of the plots of land under reference nor it was their case that they had the possession of the plot of land. Yet, the Revenue Board decided the revenue appeals without any discussion on those two vital aspects. The title of the land in respect of the plots of land had been crystallized in favour of the petitioners by virtue of the registered sale deeds and issuance of the periodic khiraj pattas in their favour. The matter of possession was decided in their favour at the time of the re-settlement operation. It has been held by a Division Bench of this Court in Jayanta Kumar Das vs. Assam Board of Revenue and others , reported in [1983] 1 GLR 318 that the law declared by the High Court is binding on the lower courts and the tribunals. It has been held that the Assam Board of Revenue is bound by the ratio of the decision of this High Court. It is also settled that the Revenue Board is also not entitled to decide the title in respect of the landed property which is exclusively within the jurisdiction of the civil court.
39. In exercise of the power of judicial review vested upon this Court under Article 226 of the Constitution of India, a finding of fact arrived at by a tribunal is not to be interfered with ordinarily. But if a decision is rendered by the tribunal is in ignorance of a binding precedent and thereby, the tribunal has acted unreasonably to come to a finding ignoring what has been stated and held by a higher authority, then such a finding is lilable to be interfered with. The decision in Dipak Kumar Choudhury [supra] was rendered on 06.05.2014 whereas the common judgment and order passed by the Revenue Board was rendered on 04.08.2014. The decision in Dipak Kumar Choudhury [supra] was rendered at an anterior point of time and has thus, become a binding precedent for the Revenue Board.
Page No.# 26/26
40. In the light of the above discussion, this Court is of the considered view that the common judgment and order dated 04.08.2014 passed by the learned Revenue Board in the revenue appeals under reference is not sustainable in law and the same is liable to be set aside.
41. Having found the common judgment and order dated 04.08.2014 [supra] passed by the learned Revenue Board and the orders dated 27.06.2013 [supra] passed by the Additional Deputy Commissioner wherefrom the revenue appeals had arisen, unsustainable in law for the reasons mentioned hereinabove, the writ petitions, by setting aside those orders impugned herein, are allowed. The interim orders, if any, stand merged with this order. As a corollary, the mutations in respect of Plot no. 1, Plot no. 2, Plot no. 3 and Plot no. 4 stand restored in the name of the respective petitioners. The authority concerned shall act accordingly. There shall be no order as to cost.
JUDGE Comparing Assistant