High Court
Case Details
WP(C) 2956/2008 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of judgment and order dated 8.7.2008 passed by the Assam Board of Revenue in Case No.15RA ( DBR)/2007 as well as order dated 1 0.9.2007 passed by the Assistant Settlement Officer, Dhubri. 2. By order dated 10.9.2007, land record of land measuring 12 bigha s 1 katha 9 dhoor covered by dag No.45 of khatian No. 1, Dhubri town, was cha nged by deleting the name of the petitioner as pattadar and inserting the name o f N.F.Railway as the pattadar. By the judgment and order dated 8.7.2008, the r evenue appeal filed by the petitioner against the aforesaid order of the Assist ant Settlement Officer was dismissed by the Board of Revenue. 3.
Legal Reasoning
Case of the petitioner is that the aforesaid land was originally settled with his father late Gayanath Biswas by the erstwhile Gauripur estat e. On the death of his father, petitioner inherited the aforesaid land. Settlem ent Officer did not mutate his name in place of his father but rather mutated th e name of N.F.Railway. At this stage, petitioner instituted a civil suit in the Court of the learned Civil Judge( (Junior Division) No.1, Dhubri, which was reg istered and numbered as Title Suit No.320/1998 seeking a declaration of right, title and interest and confirmation of possession over the suit land. State of Assam as well as N.F. Railway were arrayed as defendants. 4. The suit was decreed on contest on 7.12.1999 declaring right, ti tle and interest of the petitioner over the suit land and also confirming his p ossession. 5. Railway. As such, the aforesaid decree attained finality. No appeal was filed either by the State of Assam or by the N.F. 6. Petitioner instituted Title Execution Case No.12/2000 in the C ourt of Civil Judge (Junior Division) No.1, Dhubri. Executing Court passed order dated 20.6.2000 directing the District Collector to correct the land records a s per the decree. 7. It appears that certain persons with vested interest had subm itted application before the Settlement Officer, Dhubri as well as before the Di rector of Land Records & Surveys, Assam not to make such correction. Director of Land Records and Surveys by order dated 25.11.2002 rejected all such petitions and directed the Settlement Officer, Dhubri to correct the land records as per d ecree of the Civil Court. Thereafter, letter dated 13.12.2002 was issued by the Deputy Secretary to the Government of Assam, Revenue( Settlement) Department to the Settlement Officer, Dhubri requesting the latter not to take steps for cor rection of land records as per order of Director of Land Records and Surveys. Th e said letter was issued on a petition filed by respondent No.6 dated 12.12.2002 .
Decision
8. Aggrieved, petitioner filed WP( C) No.139/2003. This Court by orde r dated 21.1.2003 admitted the writ petition and in the interim, suspended the o peration of the communication dated 13.12.2002. 9. It appears that thereafter the revenue authorities corrected the land records by recording the name of the petitioner as patta holder of the suit land as per decree of the Civil Court. The said correction was made on 21.4.200 3. 10. As the records were corrected, petitioner submitted before the Co urt that WP ( C) No.139/2003 had become infructuous. Accordingly, by order dated 14.5.2007, the writ petition was closed as infructuous and the stay order pass ed earlier was vacated. 11. Mis-construing the above order of this Court, Settlement Office r, Dhubri directed the Assistant Settlement Officer on 28.8. 2007 that the name of N.F.Railway be recorded as pattadar of the suit land as was recorded prior t o correction in the name of the petitioner. Following the above direction, Ass istant Settlement Officer, Dhubri made the impugned correction on 10.9.2007 rec ording the name of N.F.Railway as the pattadar of the suit land. 12. Aggrieved by the above, petitioner filed an appeal under Section 147 of the Assam Land and Revenue Regulation, 1886.(Regulation) before the Assa m Board of Revenue. Assam Board of Revenue by the judgment and order dated 8.7. 2008 dismissed the appeal. 13. Hence the writ petition. Heard Mr. B. Banerjee, learned counsel for the petitioner and M 14. r. B.K. Bhagawati, learned counsel appearing for the Settlement Officer and the Assistant Settlement Officer, Dhubri. Also heard Mr. A. Sarma, learned counsel f or respondent No.6. 15. Mr. Banerjee, learned counsel for the petitioner submits that a fter the Civil Court had decreed the right, title and interest of the petition er over the suit land and had confirmed his possession, there cannot be any man ner of doubt about the title of the petitioner over the suit land. It, therefore , naturally follows that mutation of the suit land has to be done in favour of t he petitioner. Government interference in the matter was totally unjustified and without jurisdiction. When this was challenged before this Court, the direct ion of the Government not to mutate the name of the petitioner in respect of t he suit land was stayed. Thereafter, the Assistant Settlement Officer, Dhubri ha d corrected the land records and entered the name of the petitioner as the recor ded pattadar of the suit land. When the petitioner got the relief, he fairly su bmitted before this Court that the writ petition which he had filed had become i nfructuous. Accordingly, the writ petition was closed as infructuous and the sta y order was vacated. On a complete and perhaps deliberate mis-reading of this order, the Settlement Officer and the Assistant Settlement Officer removed the n ame of the petitioner from the land records and inserted the name of N.F. Railw ay as the pattadar of the suit land. Appeal filed by the petitioner against such correction of land records was dismissed by the Assam Board of Revenue by holdi ng that in view of the bar under Section 154 of the Regulation, Civil Court ha d no jurisdiction to pass order or to issue direction for correction of record- of- right. He submits that the order of the Assam Board of Revenue is patentl y untenable as ouster of jurisdiction of Civil Court should not be readily inf erred and bar of Section 154 of the Regulation would not come in the way of a party invoking jurisdiction of the Civil Court for declaration of right, title and interest over the suit land. He also submits that the impugned correction of the land records were made by the Assistant Settlement Officer without issui ng notice or without affording any opportunity of hearing to the petitioner. He, therefore, seeks quashing of the judgment of the Assam Board of Revenue as well as the order passed by the Assistant Settlement Officer as being wholly unsusta inable in law. 16. Mr. Bhagawati, learned counsel appearing for the Settlement Offic er and the Assistant Settlement Officer submits that they had only carried out the orders of the superior authorities and they had no intention to violate the decree of the Civil Court. 17. Mr. A. Sarma, learned counsel appearing for respondent No.6 whil e not disputing the facts pleaded by the petitioner, however submits that resp ondent No.6 had instituted a title suit in the year 2002 in the Court of Civil J udge (Junior Division), Dhubri being Title Suit No. 249/2002 for a declaration that the decree obtained in Title Suit No.320/1998 is a nullity. The proceeding is at the evidence stage. He, therefore, submits that the revenue authorities may be directed to await the verdict of the Court in Title Suit No.249/2002. 18. idered. Submissions made by learned counsel for the parties have been cons 19. As already noticed, facts are not in dispute. It is also not in di spute that the Civil Court had decreed right, title and interest of the petitio ner over the suit land and had also confirmed his possession. Following interve ntion of this Court, record of right was corrected and petitioner’s name was m utated as the pattadar of the suit land. When the petitioner got the relief, th e writ petition filed by him against the Government interference directing the Settlement Officer not to enter the name of the petitioner in the land record as the pattadar of the suit land, became infructuous and was accordingly closed as infructuous. Consequently, continuance of the stay order which was granted e arlier by this Court became unnecessary and therefore was vacated vide order da ted 14.5.2007. From a careful reading of this order, the only conclusion that ca n be arrived at is that since the land records were corrected, further orders f rom this Court were not called for. No other view is possible or plausible. Ther efore, to take the view that this Court had vacated the interim order and theref ore the name of the petitioner as recorded pattadar of the suit land should be replaced by the N.F.Railway, can by no stretch of imagination be construed a s a legal consequence following closure of the writ petition as infructuous. 20. The Assam Board of Revenue not only over looked this aspect of th e matter but also misconstrued Section 154 of the Regulation. As per the aforesa id section, jurisdiction of the Civil Court is barred in respect of matters enum erated therein. 21. A Full Bench of this Court in the case of Daulatram Lakhani vs. The State of Assam and Others, reported in (1989) 1 GLR 131, considered the provis ion of Section 154 of the Regulation. It was held that Civil Court’s jurisdicti on would not be barred in the following cases :- (cid:28) (1) When the order under Rule 18 is patently illegal or without jurisdiction ; (2) Where the remedy provided by the Regulation to adjudge the objection raised is not sufficient; (3) Where complicated questions relating to title are involved ; (4) Where the plaintiff seeks declaration of his title over the land from which he is sought to be evicted. (cid:29) 22. This position has been consistently followed by subsequent decisio ns of this Court and it has been held that Section 154 of the Regulation does not bar the Civil Court from entertaining declaratory suit for title. 23. Having regard to the above, this Court is of the considered op inion that a decree of Civil Court unless it is reversed by a higher Court can not be disregarded. It is not open to the Assam Board of Revenue to say that th e Civil Court had no jurisdiction to pass a decree of title and, therefore, s uch a decree would be a nullity and not binding on the Assam Board of Revenue. Such an approach would not only be highly inappropriate but would have dangerou s consequences. The proper course of action in such a case would be for the agg rieved party to move the higher Court for setting aside the decree of the Civil Court. It is certainly not open to a Revenue Board or any other authority or any person to say that order of the Civil Court is a nullity and therefore they are not bound by the order of the Civil Court. This position is quite well settl ed and therefore re-statement of the case laws on the subject is considered n ot necessary. 24. Contention of Mr. Sarma, learned counsel for respondent No.6 that t he verdict of the Civil Court in the suit instituted by respondent No.6 should be awaited, cannot be accepted, firstly on the ground that this petition is conc erned only with the facts as are on record and is not concerned about any dec ision which may come in the future. In any case, the said suit is now pending for more than 11 years with no end in sight. It only reflects the complete lack of urgency on the part of respondent No.6 as the present situation suits it. Th erefore, declining relief to the petitioner on such a ground would be against all tenets of law and justice. 25. Having regard to the discussions made above, I am of the unhesi tant view that the writ petition deserves to be allowed and is accordingly allo wed. Impugned judgment and order of the Assam Board of Revenue dated 8.7.2008 a nd the order of the Assistant Settlement Officer, Dhubri dated 10.9.2007 are he reby set aside and quashed. 26. For the unnecessary litigation that was forced on the petitioner, cost of Rs.10,000/- ( ten thousand) is awarded, which shall be paid in equal pr oportion by the Settlement Officer, Dhubri and by the Assistant Settlement Offi cer, Dhubri to the petitioner within 60(sixty) days from the date of receipt of a copy of this judgment.