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2003 DIGILAW 94 (GAU)

Bani Kanta Sarma v. Assam Board of Revenue

2003-03-06

B.B.DEB

body2003
JUDGMENT B.B. Deb, J. 1. The Petitioners herein challenged the judgment/order dated 10.06.1997 passed by the learned Member, the Assam Board of Revenue, Guwahati in Case No. 55 RA(K)/99 and Case No. 138 RA(K)/93. 2. The Petitioners' case can precisely be stated thus: A Hindu Religious Institution, namely, Ugratara Devalaya was the owner of land appertaining to Old Dag Nos. 3862 and 3863 at Uzanbazar, Guwahati Part I, Mouza Ulubari. The said temple locates near the main road at Uzanbazar. The entire land belonging to said Ugratara Devalaya had been acquisitioned by the State Government in exercise of power under the Assam State Acquisition of Lands Belonging to Religious or Charitable Institution of Public Nature Act, 1959 (here-in-after called as the Act of 1959) vide Notification bearing No. RRT/13/67/28 dated 1.3.1967 and RRT. 7371/33 dated 29.3.1972. During last settlement operation the old Dag No. 3862 had been renumbered in three dags viz. Dag Nos. 933, 934 and 935 and old Dag No. 3863 had been renumbered as Dag No. 932. The said land appertaining to Dag Nos. 933 and 935 had been settled with the father of writ Petitioner by the Deputy Commissioner, Kamrup in exercise of power under Section 15 of the Act, 1959. The Respondent No. 3 having found the writ Petitioner possessing some part of the land in April, 1993 started enquiring into the matter and came to learn that the Deputy Commissioner, Kamrup settled the said land of Dag Nos. 933 and 935 with the writ Petitioner. Hence he filed the appeal before the Assam Board of Revenue. The Assam Board of Revenue, after hearing the learned Counsel for the parties, by the impugned judgment quashed/set aside the order of settlement made by the Additional Deputy Commissioner measuring 16 laces. 3. Being aggrieved, the Petitioners filed this writ petition contending, inter alia, that the then Doloi Shri Sashi Kanta Sarma (Respondent No. 5 being struck off) let out the said land in favour of the predecessor in interest of the Petitioners, namely, one Premoda Kanta Sarma creating a lease for 25 years vide registered lease deed dated 9.3.1961. 3. Being aggrieved, the Petitioners filed this writ petition contending, inter alia, that the then Doloi Shri Sashi Kanta Sarma (Respondent No. 5 being struck off) let out the said land in favour of the predecessor in interest of the Petitioners, namely, one Premoda Kanta Sarma creating a lease for 25 years vide registered lease deed dated 9.3.1961. The entire land belong to Ugratara Devalaya had been acquisitioned by two Notifications dated 1.3.1967 and 29.3.1972 under Section 3 of the Act of 1959 and the Deputy Commissioner in exercise of power under Section 15 of the said Act rightly and lawfully settled the land in favour of the Petitioners because of the fact that on the date of acquisition the predecessor of the Petitioners, namely, Premoda Kanta Sarma had been in possession of the land as a lessee under the original owner Ugratara Devalaya but the Assam Board of Revenue having misconstrued the provision of law and having totally ignored the Petitioners status cancelled the order of settlement by the impugned judgment. 4. The Respondent No. 4, Ugratara Bardauries represented by its present Doloi, Respondent No. 3 entered appearance through learned Counsel. Though there is no counter affidavit filed by the contesting Respondent No. 3/4 but the learned senior Counsel Mr. C.K. Sarma Baruah being assisted by Mr. S. Shyam argued the case mainly on question of law. Having introduced no positive averments, the learned Counsel Mr. C.K. Sarma Baruah referring the averments and annexures appended with the writ petition argued the case. Mr. P.C. Deka, the learned senior Counsel for the Petitioners supporting the writ petition argued the case vehemently. 5. From the arguments of the learned senior Counsel for the rival parties and on perusal of the pleadings/annexures, the facts mentioned in the following para (para 6) are undoubtedly admitted ones. 6. The land in-question along with other lands once belonged to religious temple, namely, Ugratara Devalaya. The land belonging to Ugratara Devalaya had been acquisitioned under Section 3 of the Act of 1959. The land in-question had been settled by the Additional Deputy Commissioner, Kamrup in favour of Premoda Kanta Sarma, now deceased, the father of the writ Petitioners. 6. The land in-question along with other lands once belonged to religious temple, namely, Ugratara Devalaya. The land belonging to Ugratara Devalaya had been acquisitioned under Section 3 of the Act of 1959. The land in-question had been settled by the Additional Deputy Commissioner, Kamrup in favour of Premoda Kanta Sarma, now deceased, the father of the writ Petitioners. At the instance of the then Bardauries, namely Sarat Chandra Bhattachaijee, Loknath Bhattachaijee, Lolit Chandra Sarma and Umanath Sarma a civil suit bearing No. 12 of 1930 was instituted in the Court of the then Special Sub-Judge, A.V. District at Guwahati. Other bardauries, namely, Sonapati Sarma, Dhanpati Sarma, Rupeswar Sarma, Kamaleswar Sarma, Dineswar Sarma, Brahmadutta Sarma and others were party Defendants therein. That suit was filed seeking a scheme to be formulated by the Court for the better management of Ugratara temple. The suit was decreed on 3.3.1936 and a scheme had been formulated for the management of Ugratara Temple. Bardauries are virtually trustees for the temple. As per Clause 1 of part II of the Scheme a Managing Committee was constituted with 7 members for the management of Ugratara Temple. The Doloi(Chief priest of the deity) was also an ex officio member of the Committee. Four members are to be elected from the Bardauries, 2 by each branch called Digheli and Sualkuchi branches. The other 2 (one from the tenants of Ugratara Bhogdhani land in Guwahati Town) has to be nominated by the Judge, the powers of the Managing Committee, its Secretary and Doloi have also been enumerated in the said Scheme. Regarding settlement of land belonging to Ugratara Devalaya Doloi had been vested with some powers which are available in Clause 12 and 14 of the Scheme and the same is reproduced below: 12. The Daloi shall not settle any land at a rent less than the Government revenue for similar kind of Kheraj lands, nor grant any Mourashi or long term lease exceeding 30 years without the sanction of the Managing Committee. He shall not also reduce existing rates of rent for any lands without sanction. * * * 14.(a) Now new settlement of Gauhati Town land is to be made by Daloi without the approval of the Managing Committee. He shall not also reduce existing rates of rent for any lands without sanction. * * * 14.(a) Now new settlement of Gauhati Town land is to be made by Daloi without the approval of the Managing Committee. (b) Where a lease for residential plot in Gauhati expires, and there is a condition for renewal, the Daloi will be entitled to renew the lease and resettle the land for a further term not exceeding the one which expires, on the terms and conditions laid down in the old lease, unless the Managing committee, for reasons recorded, recommend modifications in the interest of the Temple, without derogation to rights otherwise acquired under general or local law. (c) * * * 7. The related provisions of the Act of 1959 as required to dispose of the case are reproduced below: Section 3. Notification of acquisition (1) The State Government may, from time to time, by notification in the official Gazette declare that all rights in land belonging to a Religious or Charitable Institution of Public Nature shall vest in the State free from all encumbrances, with effect from the first day of the agricultural year next following the date of publication of such notification. * * * Section 5. Power to retain possession of land after acquisition. Notwithstanding anything contained in Sub-section (1) of Section 3 and Sub-section (1) of Section 4 a religious or charitable institution (including its individual branches, if any) shall, with effect from the date of vesting, be entitled to retain possession of- (i) free of revenue, all such lands which on or before the last day of Chaitra, 1365 B.S. were in the ownership of the institution and were actually occupied by it by constructing buildings and raising orchards and flower gardens together with the compound appurtenant thereto and all lands reserved for the resident devotees for residential purposes: Provided that the right of ownership or possession of such lands shall not be transferable or alienable; (ii) tea garden lands Provided that such lands shall be liable for assessment to full revenue rate under any existing law. Section 6. Taking possession. Section 6. Taking possession. The Deputy Commissioner may, at any time after the lands of an institution have vested in the State, proceed to take possession thereof, an may for that purpose take such steps as may be necessary; Provided that nothing contained in this section shall be deemed to authorise the Deputy Commissioner to take possession of lands and buildings mentioned in Section 5. * * * Section 15. Settlement of acquired land with persons in occupation. Subject to the limitation prescribed under Section 4 of the Assam Fixation of Ceiling on Land Holdings Act, 1956(Assam Act 1 of 1957) where the land acquired under this Act is in occupation of a raiyat on the date of notification under Section 3. it shall be settled with him with the following status: (a) If he has acquired the status of a privileged raiyat under the Assam (Temporarily Settled Districts) Tenancy Act, 1935 (Assam Act III of 1935), then the land in his holding as privileged raiyat shall be settled with him with the status of a land-holder as defined in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886), and he shall, upon such settlement be absolved from the obligation, if any, of rendering services or making payment of "bhog" to the institution concerned in respect of his holding: Provided however that notwithstanding anything contained in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886), his right of transfer of such holding shall extend only to persons belong to the same religion as the institution in which the ownership of the land was vested before the date of notification under Section 3 of this Act. (b) If he has acquired the right of occupancy under any law for the time being in force, the land shall be settled with him with the status of a land-holder as defined in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886), or of an occupancy raiyat as defined in the Goalpara Tenancy Act, 1929 (Assam Act 1 of 1929), or the Shlhet Tenancy Act, 1936(Assam Act XI of 1936), as the case may be; (c) If he has acquired the status of an occupancy tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 then the land in his holding shall be settled with him with the status of a land-holder as defined in the Assam Land and Revenue Regulation, 1886 and he shall, upon such settlement be absolved from the obligation, if any, of rendering services or making payment of "bhog" to the institution concerned in respect of his holding and if he has not acquired the status of an occupancy tenant, then the land shall be settled with him with the status of a settlement holder (other than the land-holder) as defined in the Assam Land and Revenue Regulation, 1886: Provided however that notwithstanding anything contained in the Assam Land and Revenue Regulation, 1886 the right of transfer of such holding shall extend only to persons belonging to the same religion as the institution in which the ownership of the land was vested before the date of notification under Section 3 of the Act. 8. Admittedly the land belonging to religious temple had been acquisitioned by the State Government pursuant to Section 3 of the Act of 1959 vide Notifications dated 1.3.1967 and 29.3.1972. The provision of Section 15 of the Act of 1959 as quoted above had been in vogue on the date of Notifications. Clauses (a), (b) and (c) of Section 15 of the Act of 1959 had been amended substituting new clauses vide Assam Act No. V of 1975 effective from 14.6.1975. Since the date of notification was prior to 14.6.1975 the un-amended provision of Section 15 of the Act of 1959 would be applicable in the present case. The said Act of 1959 got assent of the President of India on 2.4.1961 and published in Official Gazette on 12.4.1961 though the Bill was passed in the year 1959. Since the date of notification was prior to 14.6.1975 the un-amended provision of Section 15 of the Act of 1959 would be applicable in the present case. The said Act of 1959 got assent of the President of India on 2.4.1961 and published in Official Gazette on 12.4.1961 though the Bill was passed in the year 1959. The learned Counsel for the writ-Petitioners vehemently submits that the Assam Board of Revenue had mis-interpreted the provision of Section 15 of the Act of 1959 and mis-construed the lease deed dated 29.3.1961 and on such mis-application and mis-construction the Assam Board of Revenue fell in error in deciding the case. As a result the impugned judgment is contrary to law and is liable to be quashed in this writ petition. On the other hand Mr. C.K. Sarma Baruah, the learned senior Counsel appearing on behalf of the Respondents having referred the related provision of the Act of 1959 submits that the Assam Board of Revenue correctly interpreted the Section 15 of the Act of 1959 and rightly refused to act upon the purported lease deed dated 29.3.1961. 9. In developing the argument Mr. P.C. Deka, the learned senior Counsel appearing on behalf of the Petitioners submits that on the date of Notification under Section 3 of the Act of 1959 the Petitioners' father Premoda Kanta Sarma was in occupation of the land in-question and as such Premoda Kanta Sarma acquired a statutory right to get settlement of the land pursuant to Section 15 of the Act of 1959. 10. In view of Section 15 of the Act of 1959(supra) if the land under acquisition on the date of Notification is/was "in occupation of a raiyat" said raiyat is entitled to get settlement. If the raiyat already acquired a status of privileged tenant under the Assam (Temporarily-Settled Districts) Tenancy Act, 1935 the land in his holding as privileged tenant shall be settled with him with the status of a land-holder as defined in the Assam Land and Revenue Regulation, 1886. The learned senior Counsel Mr. Deka submits that the father of the Petitioners was in occupation of the land as a raiyat under religious temple. The learned senior Counsel Mr. Deka submits that the father of the Petitioners was in occupation of the land as a raiyat under religious temple. The learned senior Counsel laid foundation of his argument on the registered lease deed dated 9.3.61, by the said registered lease deed the then Doloi leased out the land in-question to Premoda Kanta Sarma for 25 years and as such Premoda Kanta Sarma acquired the status of a raiyat. 11. The term "raiyat" has not been defined under the Act of 1959. Section 2(f) of the Assam (Temporarily-Settled Districts) Tenancy Act, 1935 envisages that the provision of the said Act of 1935 is not applicable to non agricultural land. Similarly the Assam (Temporarily-Settled Areas) Tenancy Act, 1971 also does not contemplate agricultural land to be covered by the said Act. After careful consideration of the related provision as mentioned above, I am of the considered opinion that the term "raiyat" as has been used under Section 15 of the Act of 1959 does not contemplate to include a person relating to any non agricultural land, rather raiyat generally means a person who occupies or holds a land of the landlord of the purpose of cultivation on consideration of payment of rent or share of crops or on rendering manual labour in favour of the landlord. The said term "raiyat" has not contemplated to include a person holding an urban non-agricultural land under the owner. 12. The learned senior Counsel Mr. Deka submits that even a tenant in occupation of the land on the date of Notification under Section 3 of the Act of 1959 has acquired a right to get settlement of the land after acquisition and on considering the status of the Petitioners' father, which status has been inherited by the Petitioners, the Revenue Authority correctly settled the land with the Petitioners' father. The learned senior Counsel appearing on behalf of the Respondents submits that in view of Clause 14 of the Scheme settled by the Civil Court Doloi cannot create a new settlement without the approval of the Managing Committee relating to any town land of Guwahati belonging to Ugratara temple. Learned senior Counsel Mr. Deka submits that it is not a new settlement. Learned senior Counsel Mr. Deka submits that it is not a new settlement. Lease deed itself contains recitals that long before, the father of the Petitioners had been in occupation being praja (subject) under the religious temple and as such Doloi in exercise of power under Clause 12 of the Scheme transferred the land in favour of the Petitioners' father by a registered lease deed. The lease deed was registered on 9.3.1961. 12A. From the nature and location of the land under lease it remains proved that the land situates within Guwahati Town (Uzanbazar) and is of non agricultural one. Under the Registration Act lease of immovable property exceeding one year requires to be registered one. The lease deed dated 9.3.1961 is undoubtedly a registered one and as such it cannot be treated to be retrospective lease deed though in the recitals in the lease deed had been made to the effect that the lessee had been in possession since long as praja (subject). That recital cannot alter the legal position. The Scheme was settled by the Civil Court on 3.3.1936 and thereafter in view of Clause 14(a) of the Scheme Doloi ceased of any right to settle any town land belonging to Ugratara temple without the approval of the Managing Committee. The recitals of Clauses 12 and 14 of the Scheme are to be read in harmonious manner to get reconciled inference. Clause 12 empowers the Doloi to let out the land belonging to Ugratara temple for a term not exceeding 30 years and at a rent not less the revenue rate of revenue paying land while Clause 14 prevents Doloi from entering into new settlement of town land. According to the Petitioner, the land in-question has been settled by Doloi by virtue of registered lease deed dated 9.3.1961. The learned senior Counsel for the contesting Respondents submits that Bill was introduced in Assam Assembly in 1959. It was passed and awaited the assent of the President of India which was received only on 2.4.1961. Anticipating the consequence of the aforesaid Act, Doloi taking advantage of his official position fiduciary in nature created the lease deed in favour of his niece and that was done keeping the Managing Committee in dark and as such the action of Doloi could easily be inferred to be a fraudulent one. 13. Anticipating the consequence of the aforesaid Act, Doloi taking advantage of his official position fiduciary in nature created the lease deed in favour of his niece and that was done keeping the Managing Committee in dark and as such the action of Doloi could easily be inferred to be a fraudulent one. 13. The learned senior Counsel for the Respondents relying on a decision of the Hon'ble Apex Court in S.P. Chengalvaraya Naidu(Dead) by L.Rs. v. Jagannath (Dead) by L.Rs. and Anr. reported in (1994) SCC submits that to get undue advantage of Section 15 of the Act, 1959 the Doloi before the said Bill became an Act exercised fraud on his own power and during the intervening period between the passing of the Bill and assent of the President created the purported lease deed and as such the activity of Doloi could easily be inferred to be a fraudulent one with deliberate intention to deceive the religious Institution itself to which he was Doloi. The lease deed is nothing but a deception in order to gain for himself by causing loss to the religious temple. Deity of Ugratara Devalaya is/was a perpetual minor to be protected by the Managing Committee of the trust to which Doloi was a member and as such Doloi was supposed to deal with the property belonging to the deity only for the beneficial purpose of the deity and not to the detrimental to the interest of the deity. In the lease deed there is nothing mentioned for what purpose it was necessitated to create the lease deed regarding the land belonging to deity. The learned senior Counsel Mr. C.K. Sarma Baruah appearing on behalf of the Respondents referred to a decision of the Apex Court in Dondeti Gopi Reddy and Ors. v. Shri Anjaneya Swamyvaru Agraharam and Anr. reported in AIR 1980 SC 105 and submits that without real necessity the de facto trustee cannot deal with the land of deity in a manner detrimental to the interest of the deity. 14. v. Shri Anjaneya Swamyvaru Agraharam and Anr. reported in AIR 1980 SC 105 and submits that without real necessity the de facto trustee cannot deal with the land of deity in a manner detrimental to the interest of the deity. 14. On perusal of the lease deed, copy of which has been produced at the time of hearing and having regard to Clauses 12 and 14 of the Scheme formulated by the competent civil Court I am of the considered opinion that the then Doloi created the lease deed dated 9.3.1961 in order to deceive the deity and the same is nothing but a sham transaction. Doloi, in view of Clause 14 of the Scheme, acquired no right to make settlement of deity's land situated at Guwahati Town without the approval of the Managing Committee and the purported lease deed appears to be a sham transaction and thus in my considered opinion the learned Member of the Assam Board of Revenue correctly doubted the genuineness of the transaction of the said purported lease deed. 15. This Court while exercising jurisdiction under Article 226 of the Constitution of India does not sit in appeal over the judgment of the Tribunal. The power of the High Court in such case is very much circumscribed. Unless the finding of the Tribunal appears to be perverse, contrary to any statutory provision of law and in absence of any mis-construction of any evidence done by the Tribunal, the High Court cannot disturb the finding of the Tribunal in exercise of power under Article 226 of the Constitution of India. 16. On perusal of the impugned judgment of learned Tribunal and having paid anxious consideration to the related provision of the Act, 1959 the Scheme formulated by the competent civil Court and the recitals of the lease deed I am in complete agreement with the findings recorded by the Tribunal and thus it requires no interference in the present writ petition. 17. The writ petition is accordingly dismissed. No order as to costs. Petition dismissed