High Court
Case Details
WP(C) 2250/2009 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER Heard Mr. T.H. Hazarika, learned counsel for the petitioner as well as Mr. T. Is lam, learned counsel representing the respondents No. 2 to 7. I have also peruse d the entire materials on record including the LCR received from the Assam Board of Revenue.
Legal Reasoning
2. This writ petition is directed against the judgment dated 18.4.2009 pass ed by the learned Member, Assam Board of Revenue in case No. 160 RA(DBR)/2007, b y which, while allowing the appeal by setting aside the sale order dated 14.11.1 991 and the sale confirmation order dated 4.4.1992 as well as other related orde rs, direction has been issued to restore the name of the recorded pattadars i.e. the respondents No. 2 to 7 in the relevant land records. The grounds on which the said order has been put to challenge are as fol 3. lows: (cid:28)1. ed by limitation having been preferred after 16 years of the impugned orders. The appeal preferred against the orders passed in 1991 and 1992 was barr 2. The appeal was admitted without first condoning the delay although the same w as accompanied by delay condonation petition.
Decision
3. The respondents in the appeal, who is the writ petition was not heard on the prayer for delay condonation. 4. The issue relating delay condonation was taken up along with the merit of the appeal and the appeal was disposed of by the impugned judgment clubbing togethe r merit of the appeal and the prayer for condoning the delay. 5. The delay in preferring the appeal was condoned on untenable ground and that too after taking a decision on merit in respect of the appeal. (cid:29) 4. Mr. Hazarika, learned counsel for the petitioner submits that the impugn ed order is not sustainable in law in view of the above grounds. Referring to th e records received from the Assam Board of Revenue, he submits that there being inordinate delay in preferring the appeal, the learned Member, Revenue Board oug ht to have dismissed the appeal on that ground alone. He submits that since the sale orders were validly passed followed by confirmation etc. the said position ought not to have been lightly interfered with by the Board of Revenue. Mr. Islam, learned counsel representing the respondents No. 2 to 7, on t 5. he other hand, submits that the petitioner had full knowledge about the delay co ndonation petition, which accompanied the appeal. He submits that since the peti tioner did not have any knowledge about the impugned orders passed way back in 1 991 and 1992, the appeal was well within the time from the date of knowledge of the said orders. According to him, the delay condonation petition was filed as a measure of caution, although there was no delay in filing the appeal from the d ate of knowledge. He further submits that since the appeal was filed under Secti on 81 read with Section 151 of the Assam Land Revenue Regulation, the Board of R evenue was within its competence and jurisdiction to entertain the appeal irresp ective of the delay attributed to the appellant i.e. the respondents herein. I have given my anxious consideration to the submissions made by the lea 6. rned counsel for the parties. On perusal of the records received from the Board what is seen is that initially the appeal was filed under Section 151 of the Ass am Land Revenue Regulation, 1886. However, subsequently ahead of the typed porti on, hand written portion ’an application under Section 81 read with’ was inserte d so as to make the appeal to be one under Section 81 read with Section 151 of t he Assam Land Revenue Regulation, 1886. The appeal was filed on 28.9.2007 withou t accompanied with any delay condonation petition. The delay condonation petitio n was filed thereafter on 4.10.2007. While entertaining the appeal by order date d 8.10.2007, the Board of revenue straightway admitted the appeal without consid ering the delay condonation petition. It was incumbent on the part of the Revenu e Board to first consider the application for condonation of delay instead of ad mitting the appeal straightway with the observation that the delay condonation p etition would be considered along with the appeal. Thus while admitting the appe al, correct procedure established by law was not followed. 7. Mr. Hazarika, learned counsel for the petitioner has drawn my attention to the order dated 23.3.1994 passed in L.S. Case No. 103/91 forming part of the Revenue Board records. As per the said order, the land in question was given pos session to the purchaser. Direction was issued for correction of the land revenu e records. It appears that an application seeking cancellation of the auction sa le was made, but the said application was rejected holding that it is not within the jurisdiction of the authority, which passed the said order dated 23.3.1994. Referring to the said order, Mr. Hazarika, learned counsel for the petitioner h as submitted that it is incorrect to say that the respondents No. 2 to 7 had no knowledge about the sale order and confirmation order passed way back in 1991 an d 1992. However, Mr. Islam, learned counsel for the respondents No. 2 to 7 submi ts that the said order being not signed by any authority is unauthentic and that the said respondents were not party to the said proceeding. 8. The impugned order dated 8.10.2009 has been passed long after 17/18 year s of the sale orders. Thus there was delay in preferring the appeal. As noted ab ove, at the first instance the appeal was preferred under Section 151 of the Ass am Land Revenue Regulation. Thereafter the handwritten portion quoted above was inserted. 9. Under Section 81, the Board may, on application made to it at any time w ithin one year of a sale becoming final under Section 80, set aside the sale. Un der Section 151, the Board may call for the proceeding held by any officer subor dinate to it. While the limit prescribed under Section 81 is of one year, under Section 151 no limit has been prescribed. However, the same cannot mean that a p arty can approach the Board at any point of time irrespective of the time gape f rom the date of the impugned sale order. If this is allowed, there will be no fi nality to any proceeding and the Board will be at a position to reopen the sale order on the basis of the application filed after considerable delay. It is in v iew of the above, the provision for condonation of delay as good and sufficient has been made. Thus, it was incumbent on the part of the Board of Revenue to con sider that aspect of the matter instead of straightway admitting the appeal keep ing the delay condonation matter open. 10. delay was condoned only after the final decision was taken in the appeal. On a perusal of the impugned order dated 18.4.2009, it appears that the 11. For all the aforesaid reasons, I am of the considered opinion that the i mpugned order dated 18.4.2009 is not sustainable in law. The matter shall now go back to the Assam Board of Revenue for a fresh decision. Needless to say that f resh decision on merit will be dependent on the outcome of the issue relating to delay in respect to which the parties will be heard first. 12. 13. The writ petition is allowed to the extent indicated above. Mr. Islam, learned counsel for the respondents No. 2 to 7 submits that a date may be fixed for appearance of the parties. As suggested by the learned co unsel for the parties, the parties may appear before the Board of revenue on 29. 4.2013 for further proceeding. 14. Needless to say that while considering the delay condonation petition, t he Board of Revenue shall decide it on its own merit and shall not be guided by any of the observations made in this order. 15. Writ petition is allowed. Send down the LCR with a copy of this order.