High Court · 2012

favour of plaintiff was cancelled.

4. Learned trial court decreed the suit and the judgment and decree of trial court in favour of the plaintiff/respondent was upheld by the First Ap pellate Court. The substantial question of law raised in this appeal are:- (cid:28)1. Whether the suit was maintainable in face of the bar under Section 32 of th e Assam Fixation of Ceiling on Land holding Act, 1956 ? 2. Whether allotment of the suit land in favour of plaintiff was illegally c ancelled and he (plaintiff) acquired the status of the land holder in respect th ereof under the Assam Fixation of Ceiling on Land Holding Act,1956 ? (cid:29). 5. of the appellants. None appears on behalf of the respondent. I have heard Mr. I.Hussain, learned counsel appearing on behalf There is no dispute that the excess land of Ashish Kr. Baruah wa s finally determined under Section 7 of Assam Fixation of Ceiling on land holdin g land. (in short ’Act’). Section 16 of the Act deals with the manner of disposa l of excess land as under:- (cid:28)If there is any cultivating tenant is occupation of the land acquired from an o wner then he shall(be given) settlement of such land within a prescribed period on the following conditions, namely:- (a) that the area of land so settled, together with any other lands held by him or any member of his family either as tenant or as owner shall not exceed in the aggregate the limit fixed under section 4 of this Act, and (b) that he shall pay to the State Government is one or more equal annual instal ments not exceeding five an amount fixed by it but not exceeding the compensatio n payable by the State Government for acquisition thereof. Provided that * (**) any amount which he is entitled to receive as compensation under the provisions of this Act. (shall be adjusted) against an equal amount wh ich (he) is liable to pay under clause (b) above. (2) On payment of the full amount under sub-section (1) above, the land shal l be settled with him with the status of a land holder as defined in the Assam L and and Revenue Regulation, 1886( Regulation 1 of 1886) * (***). (3) Where the excess land is acquired from a tenant as such and not from the owner thereof, the State Government shall be entitled to settle it, on such ter ms as it may fix, with the sub-tenant, if any, who is in occupation of such land , subject to the limit under Section 4, or if there be no sub-tenant so entitled , with any person coming within the purview of sub-section (1) of section 17 bel There is no provision under the Act enabling the Collector to ca ow, with the same status as was held by the tenant from whom the land has been a cquired (cid:29). 6. ncel the allotment of land. 7. Section 32 says that except as otherwise expressly provided in t his Act, no decision or order made in exercise of any person concerned by or und er this Act shall be called in question in any court. Under the Act as per Section, the Deputy Commissioner has been e 8. mpowered to take possession of the excess land and the land stands transferred t o and vest in the State Govt. free from all encumbrances. The land under Chapter III of the Act is to be settled within any cultivating tenant in occupation of the land acquired from an owner. 9. Here the settlement with the plaintiff made by the Deputy Commis sioner was one in the usual course under the provisions of the Act and in exerci se of powers under the Ceiling Land Holding Act. The cancellation of allotment i n favour of plaintiff is repugnant to the provisions of the Act and Section 32 c reates no Bar. 10. The plaintiff claimed that he was tenant under the original land holder paying rent to the land holder for last 25 years. He proved his case by adducing evidence. The courts below from the evidence recorded came to the concl usion that the plaintiff was tenant. 11. It is argued by the learned counsel for the appellants that the plaintiff on the basis of some revenue receipts claimed the possession of the la nd. He failed to prove that he was recorded tenant either under Assam Temperance Settled Area Tenancy Act or under Assam Land and Revenue Regulation Act, 1986.

12. Under sub-clause 0 to Section 2 says that (cid:28)Tenant (cid:29) means a perso n who holds land under another person and is, or but for a special contract woul d be, liable to any rent for that land to the other person and includes a person who cultivates the land of another person on conditions of delivering a share o f the produce. 13. tled Areas) Tenancy Act, 1971 is defined as under: Tenant unde sub-clause 17 to Section 2 of Assam (Temporarily Set (cid:28) Tenant (cid:29)- means as person who cultivates or holds the land of another p erson, and is, or but for a special contract (express or implied) would be liabl e to pay rent for that land is that other persons, and includes a person who und er system generally known as (cid:28)Adhi (cid:29) ’ barga’ ’chuki’, ’bhag’ or ’ Chukani’ cult ivates the land of another on condition of delivering a share or quantity of the produce of such land to that person.

14. Section 4 of Assam (Temporarily Settled Areas) Tenancy Act, 1971 says about the classes of tenants- (1) occupancy tenant and (2) non-occupancy tenant. The aforesaid definition of tenant do not mandate that the tenan 15. t to acquire with title of tenant must be recorded tenant. Tenant means a perso n who holds the land of another person and is or but for special contract would liable to pay rent for that land to that other person. The plaintiff proved that he was holding land for Ashish Kr. Bar 16. uah and was paying rent to him. Therefore, he was tenant within the meaning of e stablished law. 17. The appellants/defendants allotted the ceiling surplus land to p laintiff and other that then held enquiry and cancelled the allotment. No notice was served to plaintiff. No opportunity was given to plaintiff of being heard. The enquiry if there was any, ought to have preceded the allotment. The cancella tion of allotment without notice to the person was illegal and void. The trial c ourt and the appellate court rightly held that cancellation of allotment order w as illegal and liable to be set aside. 18. own the LCR forthwith along with the copy of this judgment. In view of the above, this appeal is dismissed with cost. Send d