High Court
Case Details
WP(C) 2048/2001 B E F O R E THE HON’BLE MR. JUSTICE A.K.GOSWAMI Heard Mr. K. Basar, learned counsel for the petitioner, Mr. B.B. Narzari , learned senior counsel for the private respondents and Mr. B.J. Ghosh, learned counsel appearing for respondent Nos. 1,2,4,5. 2. This writ petition is directed against the judgment and order dated 26/1 2/2000 passed by the learned member, Assam Board of Revenue, Guwahati, dismissin g the appeal of the appellant in a case registered as Case No.151 RA(G)/1991. For the purpose of disposal of this writ petition, it may not be necessa 3. ry to go into the details regarding the factual matrix of the case. However, a b rief outline of the case may be noted.
Legal Reasoning
The case of the petitioner is that the petitioner is managing and mainta 4. ining a Muslim graveyard, known as Muslim Kaborstan, at Nayapara at Goalpara tow n measuring 8 bighas 1 katha 11 lechas in Dag Nos.113, 116 and 127. In the said graveyard, there is also a grave of a great Muslim saint, namely, Abdul Kasim Kh arasain, revered as (cid:28)Pir Saheb (cid:29). The predecessor-in-interest of respondent Nos. 3(a), 3(b), 3(d) (i), 3(d)(ii) and 3(d)(iii), who was arrayed as respondent No.3 , namely, Said Mahiuddin Ahmed @ Habu, was a distant relation of the (cid:28)Pir Saheb (cid:29) . He filed a Title Suit being Title Suit No.176/78 in the Court of Munsiff, Goal para for declaration of right, title and interest over half a bigha of land ( 2K 10 L) within the graveyard, without, however, impleading the petitioner. The su it was decreed and precept was issued for correction of records. The respondent No.3 applied before the jurisdictional Deputy Commissioner for correction of rec ords on the basis of the precept. An objection was raised by the petitioner cont ending that in the Title Suit, the petitioner was not made a party defendant. Th e respondent No.4 did not consider the objection and further did not provide opp ortunity of hearing and issued an order dated 22/6/1990 for correction of the re cords and on the basis of the said order, the respondent No.5 passed a consequen tial order dated 26/21991 directing correction of the record and by order dated 13/9/1991 he issued a new Khatian No.127, Dag No.277 from Dag No.116 in favour o f respondent No.3. The petitioner having come to know about the said order dated 13/9/1991 preferred an appeal before the learned Assam Board of Revenue. The sa id appeal was registered as Appeal case No.151 RA(G) /1991. After hearing the le aned counsel for the parties, the learned Board passed the following order:- (cid:28) 2.6.92. Heard both sides. Perused the records. The correction of records was done by S.O. on 26.2.91 based on a communi cation from D.C. dt.22.6.90. It is a fact that the said order has been based on a ruling of a Civil Court to which the present appellants were not party. They i ncidentally had preferred their objection to the D.C. which was received and sum marily rejected by him on 23.8.90. In all fairness he ought to have sent this to the S.O. to take notice of lapse finally correcting the records. At the least t hey ought have been heard. This I feel had, violated the principles of natural j ustice. This has compelled me to set aside the order of the S.O. and remand the entire case to him for disposal as required under law after hearing all interest s concerned. (cid:29) 5. This order was challenged by filing a writ petition by the respondent No .3 which was registered as Civil Rule No.1406/1992. The said petition was dispos ed of by Judgment and order dated 3.12.96. The said order is quoted in its entir ety:- (cid:28)This petition under Article 226/227 of the Constitution, is directed ag ainst the order dated 2.6.92 passed by the Assam Board of Revenue in an appeal u nder Section 147 and 151 of the Assam Land and Revenue Regulations referred to b y Anjuman-E-Khademul Islam, a registered society, respondent No.3 against the or der dated 13.9.91 passed by the Settlement officer, Goalpara granting Khatian in favour of the respondent No.1. The order is a short one and is reproduced below , as incidentally it would also disclose the real controversy between the partie s. (cid:28) Heard both sides. Perused the records. The correction of records was done by S.O on 26.2.91 passed on a communi cation from D.C. dt.22.6.90. It is a fact that the said order has been based on a ruling of a Civil Court to which the present appellants were not party. They i ncidentally had preferred their objection to the D.C. which received and summari ly rejected by him on 23.9.90. In all fairness he ought to have sent this to the S.O. to take notice of lapse finally correcting the records. At least they ough t to have been heard. This I feel had, violated the principle of natural justice . This have compelled me to set aside the order of the S.O. and remand the entir e case to him for disposal as required under law after hearing all interests con cerned. (cid:29) Given the narrow scope of interference of the exercise of jurisdiction o f this Court under Article 227 of the Constitution, as has been repeatedly point ed out by the Apex Court in Md. Yunus vs. Mustakin, AIR 1984 SC and Laxmikant Re vchand Bhojwani & Anr. Vs. Pratapsing h, 1995 (6) SCC 576, it is strictly confin ed to cases of flagrant violation of rules resulting in gross miscarriage of jus tice. As is evident from the impugned order, the matter has been remanded back t o the Settlement officer for reconsideration of the entire case and its disposal in accordance with law, and it was because the aggrieved party was not afforded any opportunity of being herad. In these circumstances there is hardly any scop e for interference with the impugned order, as rightly urged by the learned coun sel appearing for the respondent No.3. As it is, none appears for the petitioner. An order dated 16.7.92 passed by a Division Bench of this Court, and the operation of the impugned order, was stayed in the fond hope that the matter would be heard and disposal of within t wo weeks, more than four years have expired since then and the petitioner, who i s enjoying the stay order, does not appear. In any view of the matter, this peti tion is liable to be dismissed. It is accordingly dismissed with no order as to costs. The interim stay order, needless to add, stands vacated. (cid:29) 6.
Decision
The writ petitioner in Civil Rule No.1406/1993 preferred an appeal being Writ Appeal No.72/1997 and by an order passed on 26/2/99, the writ appellate Co urt passed the following order : (cid:28) This writ appeal is preferred against the Judgment and order dated 3rd December, 1996 passed in Civil Rule No.1406/92 by a learned Single Judge of thi s Court. We have heard Mr. M. Singh, learned counsel for the appellant as well as Mr. K. Basar, learned counsel for the respondents. The question raised on behalf of the appellant in this appeal before us is whether an appeal preferred under Section 147/151 of the Assam Land & Revenue Regulation, 1886 can be heard and disposed by a Single Bench of Assam Board of Revenue. The appellant herein as writ petitioner preferred the aforesaid Civil Ru le challenging the order of the Assam Board of Revenue passed on 13.9.91 observi ng as follows: (cid:28) Heard both sides. Perused the records. The correction of records was done by S.O. on 26.2.91 based on a communi cation from D.C. dt.22.6.90. It is a fact that the said order has been based on a ruling of a Civil Court to which the present appellants were not party. They i ncidentally had preferred their objection to the D.C. which was received and sum marily rejected by him on 23.8.90. In all fairness he ought to have sent this to the S.O. to take notice of lapse finally correcting the records. At the least t hey ought have been heard. This I feel had violated the principles of natural ju stice. This has compelled me to set aside the order of the S.O. and remand the e ntire case to him for disposal as required under law after hearing all interests concerned. (cid:29) Learned Single Judge on consideration of the decision rendered by the Ap ex Court in Md. Yunus vs. Md. Mustakin, AIR 1984 SC and lasxmikant Revchand Bhoj wani & Anr. Vs Pratapsingh Mohansingh Pardeshi, 1995 (6) SCC 576 came to the con clusion that the orders under challenge before the Assam Board of Revenue was pa ssed by the Deputy Commissioner in flagrant violation of Rules resulting in gros s miscarriage of justice. The learned Single Judge observing as above, came to t he finding that the order passed by the Assam Board of Revenue was in fitness of the circumstances as it would enable the respondents to represent their case be fore the Settlement Officer. It is pertinent to mention herein that the Writ App ellant is relaying primarily on a decree passed by Civil Court in which responde nt No.3 was not a party. In view of all these, we do not find any ground to inte rfere with the order of the learned Single Judge so far factual aspect of the co ntroversy is concerned. Mr. M. Singh, learned counsel for the appellant, however, raised objecti on to the competence of the learned Single Bench of the Assam Board of Revenue t o pass the aforesaid order. In this connection we may refer to the Provision of Regulation 45 of Assam Board of Revenue Regulation wherein it has been specified as to how an appeal or revision under various Acts are to be dealt with. In thi s Regulation, in clause 10 of Reg. 25 it has been specifically provided that any appeal under Section 147 or under Section 151 of the Assam Land and Revenue Reg ulations has to be disposed of by a Division Bench. It is evident from the recor d that the order of the Board which is under challenge in this appeal has been p assed by a learned Single Bench. This being the position, we are unable to susta in the order of the Assam Board of Revenue and for this purpose the order passed by the Learned Single Judge has to be modified to the extent necessary. In the result, the appeal is partly allowed and the matter is remitted b ack to the Assam Board of Revenue for rendering a decision afresh after hearing both the parties. The appellant may raise his contention as to jurisdiction befo re the Board of Revenue during the course of hearing. With this modification of the judgment of the learned Single Judge, the appeal is disposed of as above. Registry is directed to send back the case record to the Board of Revenu e immediately. (cid:29) 7. sh disposal of the case by the learned Board. The present order under challenge in this writ petition arises after fre 8. Mr. Basar, learned counsel for the petitioner, while maintaining that th e appeal is required to be disposed of by a Single Bench of the Board, submits t hat the learned Board committed manifest error of law in passing the impugned ju dgment inasmuch as the writ appellate Court only directed consideration of issue relating to competency of the learned Single Bench of the Board to decide the a ppeal and enquiry was to be confined only to that aspect of the matter. Although there is no indication in the order that the said issue was considered, the fac t that order has been passed by the learned Single Bench, bestows legitimacy to the contention of the petitioner that the appeal is to be decided by the learned Single Bench only. If that be so, the learned counsel submits that the learned Single Bench of the Board could not have embarked upon an enquiry to go into the merit of the case in view of specific direction of the writ appellate Court. Hi s contention is that if the Single Bench of the Board is competent to hear and d ispose of the appeal, the order dated 2.6.92 passed by the learned Board in the earlier round would stand and in the aforesaid context, the present impugned o rder reversing the earlier view of the learned Board suffers from an error appar ent on the face of the record. 9. Mr. B.B. Narzari, learned senior counsel also endorses the submission of Mr. Basar to the extent that the matter is required to be disposed of by a lear ned Single Bench of the Board, the order assailed being an original order and no t being an appellate order. The learned senior counsel submits that if the appea l before the Board is preferred against an appellate order, then it is required to be heard by a Division Bench of the Board and if the appeal is against an ori ginal order, the same is required to be disposed of by Single Bench. Admittedly, the order impugned being an original order, the learned Single Bench of the Boa rd rightly passed the order. It is also contended by him that no fetters had bee n placed by the writ appellate Court upon the learned Board and the learned Boar d was directed to dispose of the appeal in accordance with law after hearing the parties and not confining only to decide on the competency of a learned Single Bench of the Board to hear the appeal as contended by Mr. Basar. He submits that the learned Board, on meticulous consideration of the materials on record, had passed the impugned order and there being no error apparent on the face of the r ecord, no interference is called for. 10. Mr. B.J, Ghosh, learned State counsel, in view of the adjudication made by the Division bench of this Court advocates remanding the matter once again to the learned Board to be heard by a Division Bench. 11. There is a volte-face by the private respondents, obviously because the judgment is in their favour. A perusal of the order of the writ appellate Court dated 26/2/99 would leave no manner of doubt that the learned Division Bench was satisfied on the contentions advanced by the private respondents that the appea l ought to have been heard by a Division Bench, and accordingly was of the opini on that it was unable to sustain the order passed by a Single Bench of the Assam Board of Revenue. The stand taken by the private respondents before the writ ap pellate Court was that Single Bench of the Revenue Board had no competence to he ar the appeal. Certainly, they cannot now be permitted to take a contrary stand. It has been brought to my notice that different publications on the subject are at variance with regard to the constitution of the Bench that is required to he ar appeals under Section 147 of the Assam Land and Revenue Regulation, 1886. But for the controversy with which we are concerned, the issue need not detain me a ny further inasmuch as a finding was recorded by the writ appellate Court in the very same case between the same parties that the order passed by the learned Si ngle Bench was not sustainable. A perusal of the order of the Division Bench wou ld also go to show that the matter was remanded back to the Assam Board of Reven ue for rendering a decision afresh after hearing both the parties. 12. The contention of Mr. Basar that the Division Bench did not find any gro und to interfere with the order of the learned Single Judge so far factual aspec t of the controversy is concerned will have to be understood in the context of t he case in the narration of events and not the decision. Therefore, I am not inclined to accept the submission of the learned cou 13. nsel for the petitioner that the learned Board was only required to consider the competency of the learned Single Bench to take up and decide the appeal. On the face of the finding recorded and the matter thus being remanded, the contention that the writ appellate Court required the learned Board to address its mind on the issue of competency of the learned Single Judge to take up the appeal is wh olly misplaced. The operative portion of the order of the learned Division Bench that the appellant may raise his contention as to jurisdiction cannot be equate d with competency of a particular Bench to hear the appeal and it is for the pri vate respondents to make such arguments as they deem fit with regard to jurisdic tion as engrafted in the said order dated 26/2/1999. 14. In view of the discussions above, I set aside judgment and order dated 2 6/12/2000 and remand the matter to the learned Assam Board of Revenue with a dir ection that the appeal be heard by a Division Bench of the Board. The parties to the proceeding will appear before the learned Board on 25/3/2013 for further or ders. 15. ing the learned counsel for the parties. The learned Board would render a fresh decision in the appeal after hear 16. Send back the record forthwith.