Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 1007 (GAU)

Amiya Deb Laskar v. Assam Board of Revenue

2006-11-16

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J. 1. By means of this application under Article 226 of the Constitution of India the petitioners have sought for quashment of the common Judgment and Order dated 11.10.1999 passed by the Assam Board of Revenue (for short, 'the Board') in Case Nos. 64MRA(C)/97; 65RA(C)/97 and 66RA(C)/97 by which three appeals preferred by the appellants/petitioners herein were dismissed without interfering with the order dated 28.2.1997 passed by the Additional Deputy Commissioner, Cachar (for short, 'the A.D.C) under Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, 'the Act'). 2. The basic grievance of the petitioners as projected herein is that though tenancy of the respondents under the petitioners was admitted, the Deputy Commissioner granted acquisition of ownership to the respondents under Section 23 of the Act without following the procedural law so prescribed under Rules 10, 11 and 12 of the Assam (Temporarily Settled Areas) Tenancy Rules, 1972 (for short, 'the Rules') and as such the entire acquisition process as well as the ownership granted to the respondents were vitiated. It is contended on behalf of the petitioners that one of the respondents was admittedly a Government servant who was not at all entitled to ownership under the prescribed law under Section 23 of the Act and even more surprisingly, enquiry so envisaged under the rules was not conducted by the authorities to arrive at a just and reasonable finding. 3. Per contra, Mr. M.H. Rajborbhuyan, learned Counsel for the respondents has forcefully submitted that since both the Act and Rules are social beneficial legislations, the Deputy Commissioner acted accordingly in terms of the Act as well as Rules framed thereunder and there was no illegality whatsoever or any jurisdictional error was ever committed by both the authorities below including the Board in arriving at the decision that the respondents were entitled to ownership as provided under Section 23 of the Act. 4. 4. Having given my anxious consideration to the rival contentions so advanced on behalf of the parties and also upon impugned perusal of the materials available on record including the impugned judgment and order as well as order dated 28.2.1997 passed by the A.D.C. including the objection filed by the petitioners before the Deputy Commissioner (Annexure-1 to the writ petition), it appears that the petitioners before the Deputy Commissioner preferred objection stating that one of the respondents was a Government servant and that apart, the owners of the land were the widow and handicapped person, but consideration of that objection was not at all reflected in the order passed by the Deputy Commissioner. Even though the same was pleaded before the Board, the said authority also failed to consider that aspect of the matter. Rather, surprisingly, the Board recorded that there was no bar to a Government employee holding land as tenant when the Act itself puts clear embargo on holding the land by a person other than cultivator, the authorities also did not discuss anything as to whether the land was under personal cultivation of the respondents so as to have benefit of the definition of "personal cultivation" as provided under Section 3(10) of the Act to the Government employee. 5. Given facts and circumstances in its entirety, it appears that procedural law prescribed under the Statute has not been properly followed and adhered to herein. 6. For the sake of convenience as well as for the purpose of proper adjudication of the issue raised herein, it would be necessary and relevant to quote the relevant provisions of law laid down under Rules 10, 11 and 12 of the Rules which read as under: 10. Disposal of application for acquisition filed by tenants. - The Deputy Commissioner on receipt of an application under rule, shall cause and enquiry to satisfy himself about the eligibility of the applicant to acquire the intermediary rights and the ownership rights before ordering further proceedings. If the Deputy Commissioner is satisfied that there is a prima facie case for acquisition under Section 23 he shall serve notices in Form 6 to all persons mentioned in the application at applicant's cost and to any other person or persons who, in the opinion of the Deputy Commissioner are interested in it. 11. Proceedings for acquisition. If the Deputy Commissioner is satisfied that there is a prima facie case for acquisition under Section 23 he shall serve notices in Form 6 to all persons mentioned in the application at applicant's cost and to any other person or persons who, in the opinion of the Deputy Commissioner are interested in it. 11. Proceedings for acquisition. - The Deputy Commissioner shall hear all objections presented within one month of the service of notice under Rule 10 and make a memorandum of the evidences, if any, adduced by the parties and shall, for the purposes of the enquiry, have all the powers of a civil court. 12. Allowing acquisition and deposit of compensation. - (1) When the Deputy Commissioner allows the acquisition of a parcel or parcels of land by the applicant, he shall record a formal order in the proceedings to that effect and call upon the applicant to deposit the cost of acquisitions as may be estimated under Rule 14.... 7. The language of Rules 10, 11 and 12 noted above clearly indicates that those provisions of law are mandatory and ex facie those were not complied with in the case at hand. 8. In view of the same, this writ petition is accepted and the impugned orders stand quashed and set aside. 9. The entire mater is, in the interest of justice, remitted to the original file and number of the Deputy Commissions to re-hear the same afresh in strict adherence to and compliance of the provisions of law laid down under the rules above mentioned. 10. In the result, this writ petition succeeds and stands allowed. However, there shall be no order as to costs. Petition allowed.