High Court
Case Details
WP(C) 386/2009 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI Heard Mr. D. Baruah, learned counsel for the petitioners. Also heard Mr. R. Baru ah, learned counsel appearing for the respondent No. 2. None appears for the Set tlement Officer i.e. the respondent No. 3, who is to be represented by the learn ed State Counsel. There is no representation on behalf of other respondents also . 2. This writ petition under Article 226 of the Constitution of India is dir ected against the judgment and order dated 22.12.2008 passed by the learned Assa m Board of Revenue in Case No. 15 R.A.(K)/2004 allowing the appeal of the respon dent No. 2, which was preferred against the order dated 21.08.2001 passed by the respondent No. 3. 3.
Decision
At the very outset, the facts, relevant for the purpose of this case, be noticed. Various plots of land covered by Dag No. 17(old) 27 (new) of Patta No. 41(old) 15(new) and Dag No. 343(old) 12(new) of Patta No. 40(old), 15(new) was given on annual lease to the predecessor-in-interest of the petitioners, Beliram Das. Land measuring 10 bighas 8 lechas corresponding to 134.85 ares covered by Dag No. 27 is the subject matter of dispute and is referred to as (cid:28)disputed land (cid:29). Name of Beliram Das was included in the jamabandi of the annual patta of the year 1957-64 of Mouza - Beltola, Village - Bagharbori. After death of Beliram Da s, the names of the legal heirs of Beliram Das including that of the original wr it petitioner, who was a daughter of Beliram Das, were mutated. It is stated in the writ petition that Beliram Das, during his lifetime, was in exclusive and un interrupted possession of the aforesaid land and thereafter, the legal heirs are also in possession of the same. A boundary wall was erected and an Assam Type h ouse was built and a chowkider is also engaged to look after the property. 4. On 19.02.2001, the respondent No. 3, without serving any notice upon the petitioners, cancelled the annual patta of the legal heirs of Beliram Das on th e ground that the possession of the disputed land had changed and that the same amounts to violation of the terms and conditions of annual patta. Accordingly, a fter cancelling the patta, land has been made (cid:28)Sarkari (cid:29). By the said order, annu al patta was cancelled in respect of 10 bighas 8 lechas in Dag No. 27 only. The said respondent No. 3 suo-motu reviewed the earlier order dated 19.02.2001 by hi s order dated 21.08.2001 on the ground that no notice was served upon the pattad ars as per prescribed procedure and that no proof was provided by the (cid:28)applicant s (cid:29) as to how he was possessing the land. 5. The respondent No. 2 challenged the said order dated 21.08.2001, as has been noticed earlier, by filing an appeal under section 147 of the Assam Land an d Revenue Regulation, 1886, for short, the Regulation. The appeal was filed on 2 3.02.2004 along with an application under section 5 of the Limitation Act, 1963 for condonation of delay. The appeal was admitted on 23.02.2004 keeping the poin t of limitation open. In the appeal, all the legal heirs of Beliram Das were not made parties. The original writ petitioner was also not made party and only pro forma respondent Nos. 4 and 5 herein were made parties before the learned Assam Board of Revenue. The original writ petitioner, by filing an application for imp leading, got herself impleaded in the proceedings and thereafter filed an affida vit contesting the appeal. In this proceeding, the respondent No. 2 has filed an affidavit stating 6. that the respondent No. 2 is a registered Non Governmental Organization (NGO) es tablished for welfare of old and handicapped persons. The case projected in the affidavit is that the annual pattadars were not in exclusive and uninterrupted p ossession of the disputed land and that the said disputed land has been in posse ssion of the respondent No. 2 for long. There was abandonment on the part of the heirs of Beliram Das, qua the disputed land. 7. A question arises what prompted the respondent No. 2 to prefer an appeal against the order dated 21.08.2001. The affidavit of respondent No. 2 does not answer the question but before proceeding further, it will be appropriate to put the issue in proper perspective. 8. The materials on record and more particularly, the judgment of the learn ed Assam Board of Revenue goes to show that one Prabinjyoti Kalita filed an appl ication on 30.10.2000 to the Deputy Commissioner, Kamrup, praying for settlement of land in respect of land in his possession in respect of which, there was a d eclaration of possession in his favour in Case No. 139(M)/1996 under section 145 Cr.P.C. vide order dated 31.03.2000. Prabinjyoti Kalita is the Secretary of res pondent No. 2 and the land stated to be in his possession measured 11 bighas 17 lechas in Dag No. 27 and 12 of Village - Bagharbori, Mouza - Beltola. As noted e arlier, disputed land is in Dag No. 27, in respect of which, orders had been pas sed by the respondent No. 3. 9. The application dated 30.10.2000 for settlement of land was forwarded to the Settlement Officer. The Assistant Settlement Officer, Guwahati called for a report. (cid:28)Lat Mandal (cid:29) submitted a report stating, amongst others, that 10 bighas 8 lechas of land under Dag No. 27 forming part of annual patta No. 15 i.e. the disputed land, was not in possession of the pattadars and that the same was in o ccupation of Prabinjyoti Kalita and some others. Based on the said report of the (cid:28)Lat Mandal (cid:29), a non-renewal case being N 10. .R. Case No. 7/2000 was started by the respondent No. 3, which had culminated in the orders dated 19.02.2001 and 21.08.2001. 11. Mr. D. Baruah, learned counsel for the petitioners is very precise in hi s submissions. First and foremost, he submits that there was no service of notic e upon the pattadars as required under Rule 186 of the Settlement Rules framed u nder the Regulation read with Order V Rules 17 and 19 of the C.P.C. The admitted position as appearing from the records, according to him, is that notice was pu rportedly served by hanging outside the disputed land and that no steps were tak en to serve the pattaders personally as required by the aforesaid provisions. Th e entire proceeding proceeded behind the back of the pattadars and the pattadars did not have any opportunity to put forward their case and for gross violation of principles of natural justice, the order dated 19.02.2001 cannot withstand th e scrutiny of law and the learned Assam Board of Revenue committed error apparen t on the face of the records in holding that the said order does not suffer from any infirmity. Learned counsel further submits that the order dated 21.08.2001, which was the subject matter of challenge before the learned Assam Board of Rev enue, was not passed at the instance of the petitioners. The order was passed by the respondent No. 3 on his own as it came to his notice, as would be reflected by the order, that notice was not served in proper manner. Learned counsel, while not disputing that possession was once declared i 12. n a proceeding under Section 145 Cr.P.C. which was initiated at the instance of one of the legal heirs of Beliram Das in favour of the respondent No. 2 along wi th 10 others, submits that of the same is not conclusive of the fact that the re spondent No. 2 and others are still in possession of the land. It is his content ion that the petitioners are in possession of the land presently. 13. In absence of any patta in favour of the respondent No. 2, for all inten ts and purposes, the respondent No. 2 is a trespasser so far as the disputed lan d is concerned and therefore, the respondent No. 2 did not have any locus-standi to question the legality or validity of any order passed by the Settlement Offi cer in respect of the said annual patta and therefore, the appeal preferred befo re the learned Assam Board of Revenue by the respondent No. 2 was not maintainab le in law, he submits. That apart, there was no explanation in the application f or condonation of delay to justify the delay and the learned Assam Board of Reve nue mechanically condoned the delay. Learned counsel submits that the learned As sam Board of Revenue completely misdirected itself and committed error apparent on the face of the record in holding that notice was duly served upon the petiti oners as service of notice by hanging is sufficient when pattadars were not avai lable in their annual patta land. The learned Assam Board of Revenue was also in gross error in interfering with the order dated 21.08.2001 at the instance of a stranger, he concludes. 14. Mr. R. Baruah, learned counsel for the respondent No. 2 does not dispute that there was an application filed by Prabinjyoti Kalita for settlement of lan d. He also has not disputed that as a sequel to his application for settlement, a report of the (cid:28)Lat Mandal (cid:29) was called for, which formed the foundation and the basis for the order dated 19.02.2001. According to him, service of notice by ha nging is due service in the facts and circumstances of the case and when his pos session was declared in Section 145 Cr.P.C. proceeding, in respect of the disput ed land, he can certainly maintain an appeal, before the learned Assam Board of Revenue if on the basis of order passed by the Settlement Officer, his prospect of getting settlement of the land is jeopardised. Viewed in that context, he sub mits that the appeal was very much maintainable. He has candidly submitted that respondent No. 2 cannot have any say in the matter of cancellation of the annual patta but his possession in the land can certainly be looked into by the author ities. On the question of delay in preferring the appeal, learned counsel submit s that it was not known to the respondent No. 2 about the passing of the order d ated 21.08.2001 and once that order came to his notice, the appeal was preferred . It is also submitted by him that when some of the legal heirs of Beliram Das w ere arrayed as party respondents in the appeal, the estate of Beliram Das was du ly represented by such of the respondents, who had chosen not to contest the pro ceeding. There being no power of review conferred on the Settlement Officer, the suo-motu review by the Settlement Officer cannot be sustained and therefore, th e learned Assam Board of Revenue, was wholly right, in the facts and circumstanc es of the case, in interfering with the order dated 21.08.2001. 15. I have heard the learned counsel for the parties and have considered the materials on record. 16. Rule 1(c) of the Settlement Rules provides that an annual lease means a lease granted for one year only and confers no right in the soil beyond the time of user for the year for which it is given and that it confers no right of inhe ritance beyond the year of issue. It confers no right of transfer or of sub-lett ing and shall be liable for cancellation for any transfer or sub-letting even du ring the year of issue. In the case of Prasanna Ram Pathak Vs. Balabox Agarwalla, reported in AI 17. R (37) 1950 ASSAM 209 [C.N. 74.](1), this Court had held that an annual patta, u ntil it is either cancelled or notice of non-renewal given to the patta-holder b y the authorities concerned, confers good title upon the person to whom the patt a is issued. It was further held that possession of the person other than the an nual patta-holder is irrelevant and that his possession is that of a trespasser or of a kind of permissive possession emanating from the patta-holder himself. 18. In Babur Ali Vs. Ramgopal Chaudhury, reported in 1957 ILR (9) ASSAM 437, thi s Court had held as follows: (cid:28) & & & & & & & &.We do not think this contention merits much attention since the holdin g of an annual patta itself confers a right on the holder to have the patta rene wed for a subsequent year provided he complied with the terms of the annual patt a. Therefore the holder of an annual patta can legitimately ask for a declaratio n of his rights in respect of the lands covered by the patta that was issued to him and another renewal of the patta will support his claim for subsequent years unless the patta is lawfully cancelled. Therefore a suit is competent for a dec laration of the rights of the holder of an annual patta on the basis of the term s of the patta itself. (cid:29) 19. Bearing in mind the rights flowing to the annual patta-holders as enunci ated by this Court, it would be appropriate to engage attention to the order dat ed 19.02.2001 which reads as follows: (cid:28) Perused the report of the Circle Officer. The possession of land measuring 10 Bigha 8 lechas covered by Dag No. 27 of annual Patta located in village Bagharba ri under Beltola Mouza, has been transferred, so as the rules of the annual patt a has been violated, the annual Patta of this land has been cancelled and the sa id land has been made Sarkari (Government). (cid:29) 20. There is no dispute that notice was served by hanging in a place near th e disputed land. Rule 186 of the Settlement Rules provides for mode of service o r process, which is as under: (cid:28)186. Except where otherwise directed by the Land and Revenue Regulation or by R ules issued thereunder, the provisions of the Civil Procedure Code and of enactm ents amending the same shall apply to the issue, service, and return of processe s on parties and witnesses in any revenue case, appeal, or investigation pending before a Revenue Officer or a Settlement Officer. (cid:29) 21. Thus, the provisions of Order V Rule 17 and 19 will naturally come into play. Mr. R. Baruah has not been able to point out any express provision that in matters of service of notice on annual patta-holders, provision of Order V will not apply. It is in the background of submission of Mr. Baruah that Order V Rul es 17 and 19 have been complied with, it will be appropriate to advert to the sa id provisions. Order V Rule 17 and Order V Rule 19 provide as follows: (cid:28)Order-V Rule 17. Procedure when defendant refuses to accept service, or cannot be found. - Where the defendant or his agent or such other person as aforesaid r efuses to sign the acknowledgement, or where the serving officer, after using al l due and reasonable diligence, cannot find the defendant, [who is absent from h is residence at the time when service is sought to be effected on him at his res idence and there is no likelihood of his being found at the residence within a r easonable time], and there is no agent empowered to accept service of the summon s on his behalf, nor any other person on whom service can be made, the serving o fficer shall affix a copy of the summons on the outer door or some other conspic uous part of the house in which the defendant ordinarily resides or carries on b usiness or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed theret o stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identi fied and in whose presence the copy was affixed. (cid:29) (cid:28)Order - V Rule 19: Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serv ing officer, and may, if it has been so verified, examine the serving officer on oath, or may make such further enquiry in the manner as it thinks fit; and shal l either declare that the summons has been duly served or order such service as it thinks fit. (cid:29) 22. It is not the case that the pattadars had refused to sign the acknowledg ement. It is also not the case that the serving officer after due and reasonable diligence could not find the pattadars. No attempt was made to serve the pattad ars at their ordinary place of residence. There is also no affidavit of the serv ing officer. 23. sam 520, it is laid down as follows: (cid:28) & & & & &It is true that the peon attempted to serve some 12 annual patta-holders w ho were affected by the order of the Deputy Commissioner, dated 9th July 1947. B ut it is also clear from the report made by the process-server that he did not s erve the appellant personally but left the notice ’hanging’ whatever that may me an, in his dwelling house. I am not prepared to hold, on the facts in this case, that the service of the non-renewal notice alleged to have been made upon the a ppellant was a satisfactory one. If the appellant did not know anything about th e non-renewal notice, it is not likely that he was aware of the cancellation of the annual patta cancelled by the Deputy Commissioner’s order dated 9th July 194 7. 24. Thus, it would appear that in the instant case procedure prescribed unde r Order V was not at all followed. Therefore, only conclusion that has to be rea ched is that before passing of the order dated 19.02.2001, there was no service of notice on the pattadars. On accepted legal principles of law, on the ground o f violation of principles of natural justice, the said order dated 19.02.2001 is not sustainable in law. In view of the above, the finding of the learned Assam Board of Revenue that the order dated 19.02.2001 is valid in law is liable to be In Someswar Choudhury Vs. Province of Assam, reported in 1949 ILR (1) As interfered with. 25. The writ petitioners, in absence of the second order dated 21.08.2001, i f aggrieved, could have challenged the earlier order dated 19.02.2001 but when t he subsequent order was passed on 21.08.2001, though not at their instance, thei r grievances were suitably redressed and therefore, there was no occasion for th em to challenge the earlier order dated 19.02.2001. The learned Assam Board of R evenue is, however, right in setting aside the order dated 21.08.2001. However, in view of the finding recorded by this Court that the earlier order dated 19.02 .2001 being itself an illegal order, and the same having been interfered with, o rder dated 21.08.2001 becomes inconsequential and setting aside of the same will not result in cancellation of the patta in question. 26. The order of the learned Board of Revenue has been considered on merits. However, on the point of maintainability of the appeal, the learned Assam Board of Revenue only noted that an NGO being a juristic person, it has a right to ge t settlement and to file an appeal against any order, directly or indirectly inv olved in the disputed land. I am afraid, the same is not a correct view. Right t o get settlement in a plot of land cannot be mixed up with cancellation of patta of an existing patta-holder and both stand on different footings. May be, if ca ncellation of patta takes place, the applicant for settlement may get settlement but such a fortuitous event cannot confer right of appeal if the right of appea l is otherwise not conferred. Mr. R. Baruah has himself submitted that in the ma tter of cancellation of patta, the respondent No. 2 does not have any say. In th at view of the matter, the respondent No. 2 cannot be considered to be an aggrie ved person and therefore, the appeal preferred by the respondent No. 2 was other wise not maintainable. However, as extensive arguments had been advanced on meri ts, this Court considered it appropriate to consider the validity of the order o f the learned Assam Board of Revenue on merits. The Settlement Officer had passed the orders dated 19.02.2001 and 21.08. 27. 2001 as the settlement operation was going on at the relevant point of time and there is no dispute at the bar that as on to-day, if any exercise is to be under taken for cancellation of patta, in absence of a settlement operation, the Deput y Commissioner will be the competent authority for undertaking such an exercise. 28. Accordingly, the order of the learned Assam Board of Revenue is interfer ed with to the extent indicated above. Further, without expressing any opinion o n merits, the order dated 19.02.2001 is set aside for the reasons assigned. It w ill be open for the authorities to proceed in the matter of cancellation of the annual patta in accordance with law. Needless to say, the annual patta continues to be in the names of the heirs of Beliram Das until cancelled by the authoriti es. It is also made clear that this Court has expressed no opinion on the questi on of possession of the disputed land as in this proceeding, no such issue has a risen for consideration. 29. wn the records. The writ petition is disposed of in terms of the above. No cost. Send do