Judgment · High Court · 2009

#1. appellant and Ms. B. Goyal, learned Government Advocate, Assam. Heard Mr. C. K. Sharma Baruah, learned Senior Counsel appearing for the

#2. The challenge in this appeal is against an order dated 11.02.2009 passed in a proceeding registered and numbered as WP(c) No.399 of 2009. By the aforesa id order a learned Single Judge of this Court refused to interfere with an order dated 14.7.2008 (Annexure-8 to the writ petition) passed by the Deputy Commissi oner, Golaghat to the following effect. (cid:28)You are well aware of the fact that as per joint survey carried out by the LR S taff of Golaghat Revenue Circle and surveyor engaged by your garden authority, y ou have been occupying excess ceiling surplus land measuring 371 B-2 K 15 L whic h are required to be surrendered to the authority as per provision of law. As such, you are asked to take immediate steps to hand over the aforesaid ceilin g surplus land to the district authority within 7 days from the receipt of this letter for further necessary action from this end. (cid:29)

#3. The primary ground on which the learned Single Judge felt disinclined to cause any interference with the aforesaid order is that on the contentions rais ed by the rival parties, a disputed question of fact had arisen as to whether th e petitioner had handed over possession of 1710 Bighas 3 Kathas 10 Lechas which was determined to be surplus land under the provisions of the Assam Fixation of Ceiling on Land Holding Act, 1956 (hereafter referred to as the Ceiling Act). The materials on record indicate that the very same order dated 17.4.200 4. 8 was subjected to a challenge before this Court in an earlier writ proceeding r egistered and numbered as WP(C) No.3173/2008. The said writ petition was dispose d of on 30.7.2008 by requiring the appellant/writ petitioner to avail of his rem edy by way of appeal before the Assam Board of Revenue under Section 147 of the Assam Land and Revenue Regulation, 1886. 5. Thereafter the writ appellant had approached the learned Board of Revenu e by instituting an appeal registered and numbered as 90 RA (GLT)/2008. The lear ned Board of Revenue disposed of the said appeal by its order dated 22.12.2008 b y recording a finding that out of 1710 Bighas 3 Kathas 10 Lechas of land declar ed as ceiling surplus land of the appellant, possession of 1338 Bighas 4 Katha 1 5 Lechas was taken over leaving a balance area of 371 Bighas 2 Kathas 15 Lechas. Accordingly, the learned Board of Revenue issued directions to the Deputy Commi ssioner, Golaghat to identify the said land measuring 371 Bighas 2 Kathas 15 Lec has for being taken over by the Government. Consequently, the order dated 14.7.2 008 of the Deputy Commissioner, Golaghat was upheld. Aggrieved by the aforesaid order the writ appellant had instituted the w 6. rit proceeding out of which this appeal has arisen. In the said proceeding the p rimary contention was to the effect that, as would evident from the certificate evidencing delivery of possession, surplus land to the extent of 1710 Bighas 3 K athas 10 Lechas of land was taken by the Government from the appellant. Furtherm ore, it was contended that the language of the order dated 14.7.2008 indicates t hat the 371 Bighas 2 Kathas 15 Lechas of land covered by the said order is addit ional land i.e. over and above the 1710 Bighas 3 Kathas 10 Lechas of surplus l and. On the said premises a contention was advanced before the learned Single Ju dge that the additional area of 371 Bighas 2 Kathas 15 Lechas of land cannot be taken over from the appellant without subjecting the same to a fresh process und er the provisions of the Ceiling Act.

#7. The contentions advanced by the writ appellant before the learned Single Judge, which have been reiterated before us, indicate that the core question th at has to be decided in the present proceeding is whether possession of 1710 Big has 3 Kathas 10 Lechas of land determined as ceiling surplus land was taken ov er from the appellant or possession of any lesser area of land was so taken over . The stand of the official respondents, as recorded in the earlier order of thi s Court dated 30.7.2008 passed in WP(C) No.3173/2008 as well as in the proceedin gs before the Assam Board of Revenue, indicate that the area of land covered by the notice i.e. 371 Bighas 2 Kathas 15 Lechas is a part and parcel of the surplu s land of the appellant as earlier determined, possession of which had not been taken over. The stand of the appellant, however, is that the said area of land i .e. 371 Bighas 2 Kathas 15 Lechas is additional land. In such circumstances, it was reasonably possible for the learned Single Judge to take the view that the s aid question revolve around disputed facts which needs to be effectively reconci led. Such an exercise, therefore, was considered to be inappropriate in a procee ding under Article 226 of the Constitution of India. Having regard to the fact t hat the same dispute persists before us on the rival submissions advanced we are of the view that the conclusion reached by the learned Single Judge should not be disturbed by us in appeal.

#8. As we have already identified the core dispute between the parties to be as to whether the entire ceiling surplus land of 1710 Bighas 3 Kathas 10 Lechas was taken over by the State or possession of only a part of the said land was t aken over, in fitness of things, we are of the view that before the order dated 14.7.2008 of the Deputy Commissioner is given effect to, the aforesaid matter sh ould be verified. Thereafter, if the area of land covered by the notice dated 14 .7.2008 is found to be part and parcel of the ceiling surplus land of 1710 Bigha s 3 Kathas 10 Lechas the Deputy Commissioner will take necessary steps to take over possession of the land in accordance with law. If, however, on verification , the aforesaid area of land covered by the notice i.e. 371 Bighas 2 Kathas 15 L echas is found to be additional land over and above the area of 1710 Bighas 3 Ka thas 10 Lechas determined as ceiling surplus land of the appellant, naturally, taking over of the said additional area, if so found, will require adherence to the provisions of the Ceiling Act and such other law as may be in force.

#7. he writ appeal shall stand disposed of in the above terms. In view of the foregoing discussions and the conclusions reached by us t