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2009 DIGILAW 657 (GAU)

La Boruah v. Assam Board of Revenue

2009-09-10

I.A.ANSARI

body2009
JUDGMENT Iqbal Ahmed Ansari, J. 1. By making this application, under Article 226 of the Constitution of India, the petitioners, who were appellants before the learned Assam Board of Revenue (the Board), in Case No. 152 RA (K) of 2005, have put to challenge the order, dated 30.8.3006, passed by the learned Board dismissing the appeal, which the petitioners had preferred under Section 147 of the Assam Land and Revenue Regulations, 1886 (the Regulations). 2. The materials facts, giving rise to the writ petition, may, in brief, be set out as under:- (i) The petitioners herein, who are legal heirs of Late Kanak Chandra Baruah, had applied to the Circle Officer, Guwahati Circle, seeking mutation of their names in respect of a plot of land, measuring 1 Katha 17 Lecha, covered by Dag No. 3831 (new)/669 (old) of periodic Patta No. 121 (new)/181 (old) of Ulubari (new)/Panbari (old) Mouza, which stood mutated in the name of deceased Prabhat Lal Baruah, The said application, filed by the petitioners, gave rise to Mutation Case No. 311/01-02. By order, dated 3.4.2003, the Circle Officer, Guwahati Circle, granted mutation, by way of inheritance, in favour of petitioner Nos. 1, 2 and 3 herein, in respect of the land aforementioned, on the ground that the petitioner Nos. 1, 2 and 3 herein are legal heirs of late Prabhat Lal Baruah. (ii) An appeal was filed before the learned Additional Deputy Commissioner, Kamrup (Metro), by respondent No. 4 herein, namely, Smt. Subha Baruah, under Section 147 of the Assam Land Revenue Regulation, 1886, challenging the order, dated 3.4.2003, passed, in Mutation Case No. 311/01-02 aforementioned, granting mutation in favour of the petitioner Nos. 1, 2 and 3 herein. This appeal gave rise to Revenue Appeal Case No. 2/2005. The appellant's contention, in the appeal, was that the appellant, as the widow of deceased Prabhat Lal Baruah, was the legal heir of late Prabhat Lal Baruah (whose name stood recorded as pattadar in respect of the said land, but the learned Circle Officer had granted mutation of the said land in favour of those persons, who were legal heirs of deceased Kanak Chandra Baruah and not of deceased Prabhat Lal Baruah. The appeal was heard ex parte and, by order, dated 17.6.2005, learned Additional Deputy Commissioner, Kamrup, reached the conclusion that the mutation, granted in favour of the present petitioners by the learned Circle Officer was illegal inasmuch as they are not legal heirs of deceased Prabhat Lal Baruah and it is Smt. Subha Baruah (i.e. respondent No. 4 herein), who is the legal heir of said deceased pattadar. Having reached this conclusion the learned Additional Deputy Commissioner set aside the order, dated 3.4.2003, whereby mutation had been granted by the Circle Officer in Mutation Case No. 311/01-02 aforementioned, and directed the Circle Officer to take necessary steps for correction of the relevant records accordingly. (iii) Aggrieved by the order, dated 17.6.2005, aforementioned passed by the learned Additional Deputy Commissioner, Kamrup (Metro), setting aside the mutation granted in favour of the petitioner Nos. 1, 2 and 3 herein, the petitioners herein preferred an appeal, under Section 147 of the Assam Land and Revenue Regulation, 1886, before the Assam Board of Revenue, Guwahati, which gave rise to Case No. 152 RA (K) of 2005 aforementioned. After hearing the parties, learned Board of Revenue, by order, dated 30.8.2006, dismissed the appeal, on the ground, inter alia, that the mutation, granted by the Circle Officer, Guwahati, by order dated 3.4.2003, in favour of the appellants (i.e., the petitioners herein) by way of inheritance, was illegal and without jurisdiction inasmuch as Late Kanak Chandra Baruah, the deceased husband of Smt. Ila Baruah (i.e., the present petitioner No. 1) had been given, on the strength of a decree, passed in Title Suit No. 78/1979, possession of only four rooms of the Assam-type house standing on a part of the plot of the land, in question, and, therefore, Late Kanak Chandra Baruah had no right, title or interest either over the entire plot of land, in question, or on the entire Assam-type house standing thereon and, consequently, the mutation, granted in favour of the appellants, was rightly interfered with and set aside by the learned Additional Deputy Commissioner. While dismissing the appeal, learned Board directed as follows: (1) The authority concerned will mutate the names of the present respondents on the basis of their application in respect of the land, in question, as legal heirs of Late Prabhat Lal Baruah, if not already done, as they have title and possession over the land, in question, until and unless it is otherwise decided by a competent civil court. (2) The appellants, may, if so desire, approach the appropriate civil court for declaration of their right, title and interest and recovery of possession of the land, in question, with entire A.T. house thereon. (iv) It is the order, dated 30.8.2006, passed by the learned Board of Revenue, Assam, in Case No. 152 RA of 2005, which stands impugned in the present appeal. 3. I have heard Mr. D.C. Mahanta, learned senior counsel, appearing on behalf of the appellants, and Ms. B.L. Sinha, learned Government Advocate, appearing on behalf of the respondent Nos. 1, 2, 3 and 9. I have also heard Mr. R. K. Bhuyan, learned Counsel, appearing on behalf of respondent Nos. 4 to 8. 4. Appearing on behalf of the petitioners, Mr. D.C. Mahanta, learned senior counsel, submits that the impugned order, passed by the learned Board, suffers from jurisdictional error inasmuch as the learned Board ought to have noted that the present petitioners hold prima facie title to the land, in question, inasmuch the suit, which the predecessor-in-interest of the present petitioners, had instituted, was, eventually, decided in favour of the plaintiff-petitioners and the predecessor-in-interest of the respondent Nos. 4 to 8 herein had to be evicted from the suit land in terms of the said decree. In support of the fact that the suit was, eventually, decided in favour of the present petitioners' predecessor-in-interest. Late Kanak Chandra Baruah, Mr. Mahanta has referred to the decision in Prabhat Lal Baruah vs. Ila Baruah, 2001 (3) GLT 285. 5. In the face of the decree in the suit and also the fact that the petitioners, according to Mr. Mahanta, had possession over the suit land, the learned Board of Revenue could not have refused to interfere with the order, whereby the petitioners' mutation had been cancelled. This apart, points out Mr. Mahanta, the learned Board has directed that the mutation shall be granted in favour of the private respondents herein; whereas no authority, according to Mr. Mahanta, had possession over the suit land, the learned Board of Revenue could not have refused to interfere with the order, whereby the petitioners' mutation had been cancelled. This apart, points out Mr. Mahanta, the learned Board has directed that the mutation shall be granted in favour of the private respondents herein; whereas no authority, according to Mr. Mahanta, stands statutorily vested in the learned Board of Revenue to direct mutation of land in favour of a person; whereas the learned Circle Officer had granted mutation of the land in favour of those persons, who were legal heirs of deceased Kanak Chandra Baruah and not Prabhat Lal Baruah. No mutation can be granted, further submits Mr. Mahanta, unless there is an application made, in terms of the provisions of Rule 52 read with Rule 53 of the Regulations, seeking mutation to be granted. In the present case, points out Mr. Mahanta, when the private respondents had not made any application for mutation, the learned Board had no jurisdiction to direct mutation of the land in favour of the private respondents. 6. It is further submitted by Mr. Mahanta that when the petitioners had come into possession of the land, in question, on execution of the decree, which they had obtained, their mutation ought to have been maintained and the private respondents ought to have been directed to approach civil court of competent jurisdiction for remedy of their grievances, if any, but the learned Board, instead of asking the private respondents to go to the civil court, directed the present petitioners to approach the civil court. The order, therefore, impugned in the present writ petition, is, according to Mr. Mahanta, wholly contrary to law and may, therefore, be interfered with. 7. Controverting the submissions made on behalf of the petitioners, Mr. Bhuyan, learned Counsel for the respondent Nos. 4 to 8, has taken this Court through the entire materials on record to indicate that the decree, granted in the suit aforementioned, was in respect of only four rooms of an Assam-type house and an out house and that, in the suit aforementioned, neither the predecessor-in-interest of the present petitioners had sought for, nor were the present petitioners granted, any decree declaring their title over the land. In fact, the materials on record, contends Mr. In fact, the materials on record, contends Mr. Bhuyan, clearly indicate that the private respondents had remained all along in possession of the immovable property, which stood mutated in the name of their predecessor-in-interest,, namely, Prabhat Lal Baruah, and when the Circle Officer had directed mutation of the land, in question, in favour of the present petitioners as legal heirs of Prabhat Lal Baruah, this direction was ex facie illegal inasmuch as the petitioners are not, in any way, legal heirs and successors of deceased Prabhat Lal Baruah. In the face of these facts, the learned Additional Deputy Commissioner and the learned Board were wholly correct, in taking the view that respondent No. 4 herein, being the widow of Prabhat Lal Baruah, was the legal heir and successor-in-interest of Prabhat Lal Baruah and it is Smt. Subha Baruah (i.e., respondent No. 4 herein), who was entitled to obtain mutation and not the present petitioners. This apart, contends Mr. Bhuyan, a microscopic reading of the directions given by the learned Board shows that the learned Board has made it clear that the mutation has to be granted in favour of the private respondents herein on the basis of their application and not otherwise. Mr. Bhuyan further points out that since the present petitioners had sought for mutation of the land, in question, in their favour as if they were successors-in-interest of deceased Prabhat Lal Baruah, though they were not, the learned Board had no option, but to direct, and has correctly directed, the present petitioners to approach the civil court for remedy of their grievances, if any. 8. In the backdrop of the rival submissions made on behalf of the parties, let me, now, scan the materials on record in order to determine if the present petitioners were unjustifiably denied mutation of their names in respect of the land, in question. To begin with, in this regard, it may be pointed out that respondent No. 4 is, admittedly, the widow of deceased Prabhat Lal Baruah; whereas the present petitioners are legal heirs and successors of Kanak Chandra Baruah. 9. To begin with, in this regard, it may be pointed out that respondent No. 4 is, admittedly, the widow of deceased Prabhat Lal Baruah; whereas the present petitioners are legal heirs and successors of Kanak Chandra Baruah. 9. By instituting, in the year 1979, Title Suit No. 78 of 1979, Kanak Chandra Baruah (predecessor-in-interest of the present petitioners) sought for decree to be granted "(i) for possession of the land and the houses described in the schedule below by removing the defendant and all his men, materials and belongings, (ii) for decree of mesne profit from 15.4.1979 and for enquiry of mesne profit as provided, under Order 20, Rule 12(b) and (c) of the Civil Procedure Code, (iii) for costs of the suit, and (iv) and for any other relief or reliefs as your honour may deem fit and proper." 10. The schedule of the land, in respect of which the decree had been sought for, read as under. Schedule – One Assam Type Building comprising of four rooms and one out house situated on the FC Road, Latasil, Gauhati-1 standing on K.P. Patta No. 181, dag No. 3831 of Panbari Mouza, Sahar Gaiahati and covered by Gauhati Municipal Corporation, holding No. 16 Ward No. 24. 11. The case of the plaintiff, as succinctly described in Prabhat Lal Baruah (supra), read as under: (2) The plaintiff-respondent, being the owner of the suit premises, allowed his cousin, the defendant-appellant to stay in the said suit premises free of rent with a condition of payment of Municipal Taxes, revenues and electricity charges, etc., and delivery of vacant possession of the same on demand of the plaintiff. In this regard, two agreements were executed, by both the parties the first, the exbt. 1 on 24.4.1975 and the other one, the exbt. 2 on 29.5.1977. But those documents were admittedly not registered. The defendant took over the possession of the suit premises. But the defendant defaulted in payment of municipal Taxes etc. from 15.4.1975 to 1979. Subsequently, the plaintiff required the house for his own use and occupation and accordingly, he made the demand for vacant possession of the house to the defendant who refused to comply with the same. Thereafter, the plaintiff sent a legal notice on 15.4.1979 upon the defendants requesting him to deliver the vacant possession, but that too remain unheeded. Subsequently, the plaintiff required the house for his own use and occupation and accordingly, he made the demand for vacant possession of the house to the defendant who refused to comply with the same. Thereafter, the plaintiff sent a legal notice on 15.4.1979 upon the defendants requesting him to deliver the vacant possession, but that too remain unheeded. This necessitated the plaintiff to file the Title Suit No. 70 of 1979 praying for recovery of possession, mesne profit from 15.4.1979 and also for other relief. 12. The suit was, however, decreed in favour of the plaintiff for recovery of four rooms of an Assam Type house as described in the schedule to the plaint. The decree, so granted, was put to challenge in appeal, but the first as well as the second appeal, as rightly contended by Mr. Mahanta, failed and the decree was maintained. 13. The events, following the decree, are of immense importance for the purpose of effective disposal of this writ petition. 14. What, now, as already indicated above, needs to be noted is that neither the plaintiff, Kanak Chandra Baruah, nor his successors-in-interest, namely, the present petitioners, had sought for decree for declaration of their rights, title and interest over the entire land measuring 1 katha, 17 lechas, which form the subject-matter of mutation, and, therefore, no such decree of declaration was granted. There was also no decree for recovery of possession by evicting the judgment-debtor (i.e., deceased Prabhat Lal Baruah) from the entire land measuring 1 katha, 17 lechas. The decree was basically for recovery of possession of only four rooms of an Assam type house and one out house, though the said Assam-type house had as many as nine rooms. 15. The present petitioners, who got themselves substituted, became the decree-holder and they put the decree into execution. Title Execution Case No. 45 of 2001 was accordingly born. In the Execution Proceeding, the judgment-debtor, Prabhat Lal Baruah, resisted the execution of the decree on the ground that there were as many as nine rooms in the Assam-type house, but the decree had been passed in respect of only four rooms and, hence, the decree was inexecutable. The learned executing court, in order to ascertain the factual situation, constituted a Commission. From the report of the Commission, the learned executing court came to a conclusion that the house, in question, consists of nine rooms. The learned executing court, in order to ascertain the factual situation, constituted a Commission. From the report of the Commission, the learned executing court came to a conclusion that the house, in question, consists of nine rooms. The learned executing court, therefore, ordered, on 22.7.2002, to execute the decree in respect of four rooms and one out house. This direction was passed on the ground that executing court couldn't go beyond the decree. The Civil Nazir, points out Mr. Bhuyan, accordingly executed the decree, on 1.9.2002, as had been shown by the decree-holders themselves through their Attorney, and, upon recovery, handed over possession of the said four rooms of the Assam type house and one out house to the Attorney of the decree-holders. 16. It is worth pointing out that there is nothing on record to show that at any point of time, either Kanak Chandra Baruah or the present petitioners had obtained declaration of heir title in respect of the entire land on which the said Assam-type house stood. It has been further pointed out by Mr. Bhuyan that as far as their possession is concerned, the petitioners, admittedly, came into possession of only four rooms and not of the entire house, which consists of nine rooms. In such circumstances, when the petitioners had no declaration of their rights, title, interest and possession over the entire land, measuring 1 katha, 7 lechas, their names could not have been mutated, particularly, when they were not the legal heirs of deceased Prabhat Lal Baruah in whose name the said entire plot of land stood mutated. When considered in this light, it becomes more than transparent that the learned Circle Officer had committed serious illegality in directing mutation of the names of the present petitioners in place of deceased patta-holder, Prabhat Lal Baruah, on the ground that the present petitioners were legal heirs of Prabhat Lal Baruah though they were not. 17. In fact, the present petitioners filed yet another application in the execution proceeding, long after the decree already stood executed, seeking to get the execution proceeding restored and to get the private respondents herein evicted from the remaining rooms of the said Assam-type house. By order, dated 11.7.2003, passed in Title Execution Case No. 45 of 2001, the learned court below, however, dismissed the application by observing, thus. By order, dated 11.7.2003, passed in Title Execution Case No. 45 of 2001, the learned court below, however, dismissed the application by observing, thus. As the four rooms of Assam-type House and out house was handed over to the attorney of the decree holder, the decree can be said to be fully executed as the decree mentions only about Assam-type building with 4 rooms and an out house. As the executing court cannot go beyond, the decree, it has to ascertain as to whether the decretal property as described in the decree has been handed over to the decree holder or not and in the instant case, it appears from record that the same has been handed over to the decree-holder's attorney. 18. To put it a little differently, the present petitioners got their names mutated in place of Prabhat Lal Baruah as legal heirs of Prabhat Lal Baruah. This was wholly illegal and was rightly set aside by the learned Additional Deputy Commissioner. As there was no infirmity in the direction given by the learned Additional Deputy Commissioner, it logically follows that the learned Board of Revenue could have done nothing, but dismissed the appeal and that is what has actually been done by the learned Board. 19. Coming to the directions, which have been issued by the learned Board, it may be pointed out that since the present petitioners have been seeking mutation in their favour and in the facts and circumstances of the present case, no such mutation could have been granted in their favour, the leaned Board was wholly justified in asking the present petitioners to get their rights, title and interest established by taking recourse to a civil suit. This apart, the learned Board has not directed, as correctly pointed out by Mr. Bhuyan, that mutation in favour of the private respondents herein shall be granted without any application having been made by them seeking such mutation. 20. Notwithstanding, however, the fact that no direction has been issued by the learned Board to grant mutation of the land, in question, in favour of the private respondents herein, it is important to understand the scheme of mutation as embodied in the Regulations. It must be borne in mind that the Regulations do not lay down making of an application for mutation as the only way for mutation of the name of a person. It must be borne in mind that the Regulations do not lay down making of an application for mutation as the only way for mutation of the name of a person. Far from this, Rule 53A reads: 53.A(1) Notwithstanding anything contained in Sections 50 to 53, where the Deputy Commissioner has received information, otherwise than through an application, of any such taking possession or assumption of charge as is referred to in Section 50, he may make an order directing the registration of the name of the person so taking possession or assuming charge. Provided that:- (a) The information has been verified by local enquiry made by an officer not below the rank of an Assistant Settlement officer. (b) Notice has been published and an inquiry has been held in the manner prescribed by Sections 52and 53 as if an application for registration had been received from the person to whom the information relates. (2) Where any person is aggrieved by an order directing registration under this section, which has been made after verification of the information received by load inquiry only, he may within a period of three years of the date of such order apply to the Deputy Commissioner to have such order set aside, and on receipt of such application the Deputy Commissioner shall cancel the registration and then proceed to publish the notice and hold the inquiry prescribed by Sections 52 and 53 as if an application for registration had been received from the person whose name had been registered, 21. A bare reading of the provisions, contained in Rule 53A, makes it abundantly clear that even when an application has not been made seeking mutation, it is within the powers of the Deputy Commissioner to direct mutation of the name of a person in respect of a land. The scheme of the Regulations shows that apart from the fact that the Deputy Commissioner has such a power, Rules 52 and 53 give every person, interested in getting his name mutated in respect of a land, to apply, as provided in Rule 52, for mutation, and, if such an application is made, it, will be dealt with, and disposed of, by making necessary orders in accordance with the provisions of Rule 52 read with Rule 53. Logically, therefore, when, on an appeal, preferred under Section 147, mutation, granted in favour of a person, is set aside and the mutation is directed to be cancelled, there is no impediment, on the part of the appellate authority - be it the Deputy Commissioner, Additional Deputy Commissioner or the Assam Board of Revenue - to direct mutation of the land in favour of the person on whose appeal mutation has been cancelled, if such a person is found to have title to, and possession of, the land involved in such a mutation proceeding. The remedy of the person, who feels aggrieved by such a decision - if the decision is, otherwise, in accordance with law - lies in instituting appropriate suit seeking declaration of his rights, title and interest, and, if necessary, recovery of possession. 22. Situated, thus, it becomes clear that contrary to what has been submitted on behalf of the present petitioners, the learned Additional Deputy Commissioner, while setting aside the order, dated 3.4.2003, passed by the Circle Officer, Guwahati Circle, had the jurisdiction to direct, and had rightly directed, the land record to be corrected in terms of the findings reached by the learned appellate authority. The learned Board also committed no error of jurisdiction in maintaining such an order and in suggesting to the present petitioners to take recourse to appropriate civil proceedings for remedy of their grievances. Though the learned Board has not specifically directed the mutation to be granted in favour of the private respondents without, an application having been made by them, in this regard, there was really no impediment, in law, and there is no impediment, on the part of the revenue authorities, to mutate the land, in the facts and circumstances of the present case, in favour of the private respondents herein. 23. Because of what have been discussed and pointed out above, this Court finds no merit in this writ petition. This writ petition, therefore, fails and the same shall accordingly stand dismissed. 24. There shall, however, be no order as to costs. 25. Send back the LCR. Petition dismissed.