High Court
Case Details
WP(C) 5424/2012 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL Both the aforesaid writ petitions are based on identical facts and the reliefs s ought for by the writ petitioners are also intrinsically bonded with each other. Hence, I propose to dispose of both the writ petitions by this common judgment. 2.
Legal Reasoning
Heard Sri R Sharma, learned Standing counsel for the N.F Railway and Sri R Dubey, learned counsel for the Company (respondent No.6 in 1st WP). The State respondents i.e. R-1 to 4 are represented by Ms. R Gogoi, learned Government Co unsel. However, none appeared for the private respondent Nos.5 and 7, arrayed in the writ petition filed by the railway, nor they have filed any counter affidav it. I have also gone through the pleadings of both the writ petitions as well as the documents annexed therewith. 3. WRIT PETITION No. 2908 of 2012: This writ petition has been filed by th e N.F Railway (in short ’railway’) praying for a writ of Mandamus basically to d irect the Revenue authorities of the State to demarcate and correct the land rec ords in favour of the railway. The petitioners’ case is in a narrow compass. The ir case is that during the period 1961 to 1969 the Government of Assam had acqui red a plot of land measuring 14 Bighas 1 Kathas 16 lechas covered by different p attas and dag nos. in the revenue village of Gotanagar, Kamrup, Assam and therea fter, the government handed over the possession of the land and as a follow up a ction the railway had also erected cemented post with the inscription ’NFR’ in t he four corners of the boundary. As per the petitioner the land was acquired to develop the infrastructure, more so, by way of construction of railway quarters. However, the land remained vacant for a long period whereupon the general publi c destroyed the boundary pillars and attempted to occupy the acquired land. Appr ehending loss of the acquired land the railway, for the first time, submitted a letter to the Settlement Officer, Guwahati on 4.9.2009 for verification of railw ay land and mutation thereof in the name of the railway. This letter was followe d by some more correspondences. However, the State authorities failed to corr ect the land records till the end of 2010. Hence, a general FIR was also lodged with the offi cer-in-charge of Jhalukbari police station on 3.1.2011. Even thereafter the writ petitioners submitted two more letters on 12.3.2012 and 17.4.2012 to the Deputy Commissioner, Kamrup, Metro for correction of the land record. Simultaneously, the Estate Officer of the NF Railway also issued an order dated 7.4.2011 to the respondent Nos. 5, 6 and 7 in exercise of his powers under the Public Premises ( Eviction of Unauthorized Occupants)Act, 1971 and directed the said respondents t o maintain status quo of the possession. At this stage itself I would like to me ntion that in the Schedule of the Notices except mentioning the colony and plot number of the railway neither patta number nor Dag number nor the boundary of th e land were mentioned. 4. The writ petition was filed on 11.6.2012 and an interim order was also p assed by the High Court on 18.6.2012 directing the parties to maintain status qu o of the disputed land. However, in the meanwhile, the revenue authority had alr eady mutated the name of the railway on 13.6.2012. In other words, the name of t he NF Railway was brought in the record of title only on 13.6.2012, replacing th e names of recorded pattadars. In this way the writ petition of the railway has technically become infructuous. Despite that the dispute is still alive since in the counter writ petition the respondent No. 6 has challenged the mutation orde
Decision
r in favour of the railway and also asserting the right title and interest. 5. WRIT PETITION No. 5424 of 2012 : This writ petition has been filed by a private limited company. It is also the respondent No.6 in the writ petition o f the railway. This writ petition has been filed so as to challenge, inter-alia, the mutation order dated 13.6.2012, passed by the ADC, Guwahati in favour of th e railway. The petitioner’s case is that they have purchased altogether 5 bighas a 5.1 nd odd land from different pattadars by way of registered sale deeds executed on 16.8.2011 and 17.11.2011. According to the petitioner, before purchasing the la nds No-Objection Certificates were also obtained by the vendors from the Deputy Commissioner, Guwahati and the sale permission was given only after due notice t o the railway and demarcation of the lands, proposed to be sold by the vendors t o the writ petitioner by Lat-Mandal from the office of Circle Officer. A Copy o f the notice of demarcation issued by the representative of the writ petitioner has been annexed with the writ petition under Annexure No.23-A. 5.2. After execution of the sale deeds the petitioner received a notice dated 24.11.2011 from the Estate officer of the railway. Thereafter, the petitioner s ubmitted a reply to the Estate officer on 8.12.2011, asking for certain document s. Despite repeated demands the railway did not furnish requisite documents and information to the petitioner company. Even then apprehending their illegal evic tion the petitioner submitted its reply on 27.3.2012. After receipt of the reply the Estate Officer passed another order on 6.3.2012 directing the petitioner to maintain the status quo of the land and further directed that no construction s hould be carried out on the land. This order of the Estate officer dated 6.3.201 2 was challenged by the petitioner company before the learned District Judge, Ka mrup, being Misc. appeal No. 5 of 2012. While admitting the appeal the learned D istrict Judge stayed the order of the Estate officer dated 6.3.2012. In the mean while the railway filed WP 2908 of 2012 and obtained an order of status quo on 1 8.6.2012, as has already been noted earlier. On the other hand, the order of the Additional Deputy Commissioner, Kamr 5.3. up dated 13.6.2012, whereby the name of railway was mutated in the records of ri ghts by way of deleting the names of recorded pattadars, was challenged by the p etitioner company before the Assam Board of Revenue by way of filing an appeal u /s 147 of the Assam Land Revenue Regulation, 1886 (briefly ’ALRR’). The appeal w as disposed of on 6.11.2012 upholding the mutation of the name of the railway in the records. Since the certified copy of the order was issued to the appellant on 6.11.2012 the order of the Revenue Board dated 5.11.2012 has also been challe nged, albeit with a typing mistake as 6.11.2012 in the writ petition. 6. Sri Sharma, learned counsel for the railway submitted that since the lan ds were acquired for the railway and since they were in possession of the land M /S Jupitar Real Estate Pvt. Ltd. cannot acquire any right and title over the sai d land. On the other hand, Sri Dubey learned counsel for the company submitted t hat the railway was never in possession of the land and the names of the pattada rs, either original or their legal heirs or their successors continued to remain in the records of title. Hence, the company has acquired a valid title and thei r names should be recorded in the records of rights. Sri Dubey, learned counsel for the company also argued that the State of Assam issued a sale permission on 25.7.2011 in the form of NOC, which is mandatory from the concerned Deputy Commi ssioner and such sale permission is granted only after spot verification by the revenue officers and the demarcation of the land proposed to be sold and purchas ed. In other words, the learned counsel for the company submitted that not only the name of the railway existed in the records of title they were in possession of land at any point of time. The learned counsel also contended that even after execution of the sale deeds the petitioner company had also applied for permiss ion from GMDA for construction of a building and after verification of the title documents as well as spot verification of the land the GMDA also issued their N OC and on the basis of their permission from the GMDA the petitioner company has started construction of a residential apartment by way of collecting advances from the intending flat purchasers and substantial construction work has already been completed. The learned counsel for the company also argued that the impugn ed mutation order dated 13.6.2012 passed by the ADC, Kamrup, Guwahati is untenab le in law inasmuch as the said mutation was done without any notice to the patta dars or any local inspection. The learned counsel for the company has also assai led the order of the Revenue Board on the ground that the same is de hors to the statutory provision of ALRR, 1886. 7. Without referring to the bunch of the documents annexed with the writ pe tition of the company the admitted fact is that the company had purchased the la nd after obtaining NOC from the Deputy Commissioner and also after giving a publ ic notice in a newspaper to that effect and also specific notice to the railway on 13.6.2011 under Annexure-23 A. The statutory provision regarding obtaining of sale permission from the Deputy Commissioner can be found from Section 21-A ins erted in the Registration Act, 1908 by way of State amendment on 30.12.2009. As per this amendment there can be no transfer of any non-testamentary instrument w ithout any NOC from the Deputy Commissioner. I have already mentioned earlier th at such NOC is given only after verification of record of rights and field verif ication by the officials of the revenue office. From annexure -41 and 42 submitt ed by the company with its writ petition it is abundantly clear that the name of vendors of the petitioner company were existing in the records of rights till 1 3.6.2012. Hence, it cannot be said that the vendors of the petitioner had no tit le to sell their respective lands to the petitioner company. 8. Strangely, the railway has failed to produce a single document about the acquisition of the land that has been purchased by the petitioner company eithe r in their writ petition or by way of filing any counter in the writ petition of the company. There is not even any mention of the date and number of the notifi cation, purportedly issued u/s 4 & 6 of the Land Acquisition Act or any copy of the Award has been filed to take a view that the lands purchased by the petition er company were, in fact, a part of the acquired land. Only photocopy of two she ets of payment register of acquisition compensation have been annexed with the w rit petition by the railway. Though names of predecessor of the vendors appear i n these sheets but the payment appears to have been collected by some persons ot her than the patta holders. Even otherwise photocopy of payment sheet is not a c onclusive document to hold that the lands purchased by the petitioner company ar e the same land that were allegedly acquired by the Government for the railway. The pattadars may have some more land than what was acquired. Besides this, the boundaries described in the sale deeds also do not show that NF Railway has any land contiguous to the petitioners land. 9. From the documents annexed with the writ petition of the company it appe ar that after 1960 a number of settlement operations were carried out by the gov ernment to update the records of right. Had the railway been in actual possessio n of the land or had the demarcation pillars existed the names of vendors of the petitioners company could not have existed in the record. The fact of possessio n of the railway over the land has been negated by the Addl.Deputy Commissioner (Metro) in its affidavit 18.2.2013 filed in WP 2908 of 2012 in the following wor ds: (cid:28)4. That with regard to the statements made in paragraphs 3 and 12 of the writ p etition, the deponent states that as reported by LR staff they did not notice an y NFR symbol cemented iron boundary post over the land. In fact the LR staff not iced bamboo fencing and residential house of some of the pattadars over some por tion of land, as reported (cid:29) 10. In the case of State of UP Vs. Hari Ram; reported in (2013) 4 SCC 280, t he Hon’ble Supreme has differentiated the expression (cid:28)deemed to have been acquir ed (cid:29) and (cid:28)deemed to have been vested absolutely (cid:29) in the context of Section 10 (3) of the Urban Land (Ceiling and Regulation) Act, 1976. The Apex Court has held t hat the word vested only indicates vesting of title or interest in respect of la nds which are deemed to have acquired and nothing more. Their Lordships have hel d that ’vested’ may not include (cid:28)transfer of possession (cid:29) and ’vesting absolutely ’ is that (cid:28)what is deemed to have been acquired (cid:29). Their Lordships have further h eld that the vacant land is not actually acquired but deemed to have been acquir ed, in deeming things to be what they are not. Acquisition, therefore, does not take in possession unless there is an indication to the contrary. While holding so the apex court has taken a view that there must be express words of utmost cl arity to persuade a court to hold that the legislature intended to divest posses sion also, since the owners or holders of the vacant land are pitted against a s tatutory hypothesis. The case in hand relates to an acquisition proceeding under the provisions of the Land Acquisition Act, 1894 where there is no stipulation that acquisition would automatically vest the title and possession of land to th e authority for which the land hass been acquired. 11. In the case of Immami Appa Rao -Vs- G. Ramalingam, (AIR 1962 SC 370) two parties were claiming the title and possession over a plot of land. In that cas e the Hon’ble Supreme Court found that two contesting parties were equally partn ers in the fraud and misrepresentation. In that situation also the Hon’ble Supre me Court took a view that the party, who is in possession of the property, shoul d not be disturbed as it would be less injuries to public interest. However, in the case before me no fraud appears to have been played by the petitioner compan y. They have acted bonafide and have purchased the land with due notice to all a nd with statutory permission from the Deputy Commissioner. They are also entitle d to protection U/s 41 of the Transfer of Property Act, 1882. Hence, it would be advisable to unsettle their possession. 12. The infirmity in the order dated 13.6.2012, whereby the ADC, Kamrup(M) h as mutated the name of the railway can also be ascertained from the fact that in the affidavit of the State authorities there is no statement that before correc ting the records notices were duly served upon the recorded pattadars. Chapter-I V (Part-B) of the ALRR mandates filing of an application before the revenue auth ority for mutation of the name by the purchaser and thereafter such authority is required to give notice to the recorded pattadars. Such application for mutatio n of the name is required to be made within 6 months of taking possession or ass umption of charge to the D.C. under Regulation-50. Thereafter the Deputy Commiss ioner is under an obligation to make an enquiry meaning thereby the recorded pat tadars have to be heard and spot verification of the land should be made before correcting the records of the land. However, the instant case the name of the ra ilway has been abruptly inserted in the records without any notice to the pattad ars. Hence, the orders of the ADC, Kamrup, Guwahati 13.6.2012, mutating the name of the railway in the records of right is illegal and unsustainable in law. Eve n otherwise, the company is a bonafide purchaser of land from recorded pattadars . On this ground also the law of estoppel would operate against the railway and eviction of the company can not be justified on the basis of the impugned mutati on order. I need not dwell upon at length the perversity of the order passed by th 13. e Assam Revenue Board inasmuch as the Board has also upheld the of mutation orde r of the ADC on the sole ground that the correction of land records is an automa tic process. This legal view taken by the Revenue Board is contrary to the provi sions of ALRR, mentioned herein above. If the view of the Revenue Board is accep ted then the name of the petitioner company should also have been automatically recorded by the ADC soon after the purchase of the land vide sale deeds dated 16 .8.2011 and 17.11.2011. Though I do not agree with the proposition taken by the revenue board I hold that with the same analogy the company’s name should also h ave been recorded in the records of right in the year 2011 itself and thereafter the petitioner company was also entitled to a notice from the revenue authority before mutating the name of the railway. For these reasons the order of the Rev enue Board dated 6.11.2012 (sic 6.05.2011) is also hereby set aside. 14. In the result the Writ Petition number 5424 of 2012 filed by M/S Jupitar Real Estate Pvt. Ltd is allowed. The impugned order dated 13.6.2012 passed by t he ADC, Kamrup, (M), Guwahati mutating the name of the NF Railway in the records of right is hereby set aside. On the same premise the order of the Assam Board of Revenue is also hereby set aside. Stay order/status-quo orders passed by this court in the aforesaid writ petitions and by other authorities stand vacated.