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2012 DIGILAW 1343 (GAU)

Haren Saikia v. State of Assam

2012-12-17

AMITAVA ROY, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. Heard Mr. S.P. Roy, learned counsel for the review petitioner. Also heard the learned Government Advocate. By this petition, review of the judgment and order, dated 4.3.2011, passed in WA 327/2009, has been sought. In the said writ appeal, the judgment and order, dated 18.9.2009, passed by a learned Single Judge of this Court in WP (C) 3884/2009 stood challenged. The writ petitioner's case, in brief, may be stated as follows. "Mayang Beat Sand Mahal" (hereinafter called the "Mahal") formerly situated within the jurisdiction of the Divisional Forest Officer, Nagaon Division, was settled with the petitioner, on the basis of a tender notice, for a period of two years i.e. for 2007-2009 (from 12.11.2007 to 11.11.2009). Despite depositing the entire price, in eight installments (i.e. kist) w.e.f. 12.11.2007 to 12.8.2009, he could not operate the Mahal, by collecting sand, due to interference caused by some unauthorized persons and also inaction, on the part of the authority concerned. Therefore, the petitioner, by his letter, dated 25.7.2009, returned the challan books for favour of revalidation by extending the Mahal period. Subsequently, by his letter, dated 26.8.2009, the petitioner requested the DFO, Nagaon Division, to issue necessary permit and transit challans against the paid up kist money. In the meantime, the Chief Conservator of Forest (T) {for short CCF (T)}, Assam, on 5.5.2009, made a proposal to the Principal Chief Conservator of Forest, Assam, for transferring the "Mayang Beat and Sand Mahal" from Nagaon Division to Kamrup East Division, after the expiry of the Mahal period on 11.11.2009. But, the DFO, Nagaon Division, by his letter, dated 18.8.2009, transferred the Mahal to the Kamrup East Division, prior to the Mahal period. 2. Aggrieved by the said order of transferring the Mahal, the petitioner submitted a representation, on 20.8.2009, before the Commissioner and Secretary to the Government of Assam, Environment and Forest Department, Dispur, seeking review of the transfer of the Mahal and to allow the petitioner to extract entire Mahal materials against the deposited kist money. 3. Failing to receive any response in this regard, the petitioner, invoking the writ jurisdiction of this Court, by filing WP (C) 3884/2009, prayed for setting aside the transfer order dated 18.8.2012 and to allow the petitioner to operate the mahal. 4. 3. Failing to receive any response in this regard, the petitioner, invoking the writ jurisdiction of this Court, by filing WP (C) 3884/2009, prayed for setting aside the transfer order dated 18.8.2012 and to allow the petitioner to operate the mahal. 4. A learned Single Judge of this Court, by his order, dated 18.9.2009, disposed of the writ petition with the observation that the transfer of the Mahal, in question, from the territory of Nagaon Division to Kamrup East Division was only for administrative convenience, which did not affect the existing lease of the petitioner. It has also been observed that the lease of the petitioner to operate the Mahal should continue in terms of the agreement of the settlement, despite the transfer and that the right of the petitioner was not affected, in any manner. The learned Single Judge also observed that the petitioner, being a sitting lessee, subject to compliance of terms of settlement, would certainly be entitled to run the Mahal for the leased out period. 5. Aggrieved by the said order, the writ petitioner, as appellant, approached this Court by preferring a writ appeal i.e. WA 327/2009. 6. The grounds of challenge to the decision, rendered by the learned Single Judge, as stated in paragraph 43(vi) of the Memorandum of Appeal were that the learned Single Judge, did not travel through the annexures and the averments made in the writ petition and passed the impugned order, in a most mechanical manner, without considering the fact that the writ petitioner could not operate the Mahal for a single day due to illegal activities of unauthorized persons and that the finding, rendered by the learned Single Judge, that the appellant was operating the Mahal, was contrary to the records. The other ground raised by the appellant was that though the Principal Chief Conservator of Forest had passed the order for transfer of the Mahal, only after expiry of the lease period, the DFO, Nagaon, by his impugned letter, dated 18.8.2009, had transferred the Mahal prior to the lease period, thus violating the order of the higher authority and as such the said order was liable to be quashed. 7. 7. As indicated in the memo of the writ appeal {paragraph 43(ii)}, the contention of the appellant before the learned Single Judge, was that, though the Principal Chief Conservator of Forest, Assam, had sent the proposal for transferring the Mahal, after the lease period i.e. 11.11.2009, the DFO committed illegality by transferring the Mahal by his letter, dated 18.8.2009, which act was in violation of the direction given by the CCF(T) and PCCF, Assam. 8. Having heard the learned counsel, appearing for both the parties, this Court, by the judgment and order under review, dismissed the appeal, observing that the transfer of the Mahal did not adversely affect the appellant's right to operate the Mahal as per terms of the agreement, inasmuch as the impugned order, dated 18.8.2009, did not take away his right to run the Mahal during the stipulated period. 9. Dissatisfied with the said decision, the appellant as petitioner, has come up with this review petition, seeking review of the said judgment and order, passed by this Court in WA 327/2009. The grounds taken for review are as follows:- (i) That this court, failed to consider that the T.P. book being taken by the DFO, Nagaon, and that the same not been returned to him with revalidation, the petitioner was not in a position to operate the Mahal and as such the finding 'that the petitioner's right to operate the Mahal was not denied' is not factually correct, which warrants review. (ii) That the matter regarding return of the deposited kist money with interest was not considered by this Court. (iii) That the findings of this Court, that the coy of the letter dated 18.8.2009 was sent to the appellant, was not correct and that the said finding was also an error apparent on the face of the record, requiring review. (iv) That the DFO, Nagaon's, affidavit in opposition to the effect that there was no encroachment or unauthorized occupation in the said mahal was not correct, inasmuch as, as per the joint investigation report, other person(s) i.e. representatives of M/s. Simplex Infrastructure was found removing sand from the 'Mahal'. (iv) That the DFO, Nagaon's, affidavit in opposition to the effect that there was no encroachment or unauthorized occupation in the said mahal was not correct, inasmuch as, as per the joint investigation report, other person(s) i.e. representatives of M/s. Simplex Infrastructure was found removing sand from the 'Mahal'. (v) That the finding that the petitioner did not approach the DFO, Nagaon Division, is not correct because the petitioner, on 20.8.2009, filed an application before the Commissioner and Secretary, alleging non-issue of permit and challan and that this aspect of the matter was not considered by this Court. (vi) That there is no whisper, in the judgment, regarding the averments made in the additional affidavit with regard to full payment of kist money (8th kist) and sending of the entire record to the DFO, Kamrup, without issuing any permit and non-service of the copy of the letter dated 18.8.2009. (vii) That the failure of this Court to consider that, in view of return of challans/TP to the DFO, Nagaon, followed by transfer of the record to the DFO, Kamrup East, with TP/Challans, the petitioner could not operate the mahal within the validity period is a mistake apparent on the face of the records, requiring review of the judgment and order rendered in the writ appeal aforesaid. 10. Mr. S.P. Roy, learned counsel, appearing for the review petitioner, has submitted that as the T.P. Book/challans were taken by the DFO, Nagaon, the petitioner was not in a position to operate the mahal and as such, in view of the non-return of the challans, this Court's finding that the transfer of the mahal did not adversely affect the petitioner's right to enjoy the mahal, not being based on record, is an error apparent on the face of the record requiring review of the impugned judgment and order. It is also submitted, by the learned counsel for the petitioner, that though there was direction from the superior authority to transfer the mahal only after the lease period, i.e. after 11.11.2009, the transfer of the mahal, by the letter dated 18.8.2009, was in violation of the higher authority's order and that the said transfer adversely affected the petitioner's right to enjoy the mahal. It is further submitted that though, in the letter dated 18.8.2009, it has been mentioned that copy of the same was issued to the petitioner, the fact, the copy of the same was neither received by the petitioner, nor served on him and therefore, the transfer, being made keeping him in dark, was illegal and in violation of the principles of natural justice, which aspect of the matter affected the petitioner's right was not considered by this Court, at the time of disposing the appeal. The learned counsel also submitted that, there being sufficient materials on record, more particularly the impugned inspection report, dated 29.10.2008, to show that due to interference caused by unauthorized persons the petitioner could not operate the mahal, the statement made by the DFO, that upon joint inspection, no unauthorized persons/occupants were found in the mahal, is not correct. It is further contended that the averment made by the DFO, in his affidavit-in-opposition, that after paying the 8th kist money, the petitioner did not approach the respondent No. 5 i.e. DFO, Nagaon, for issuance of challans is not correct, in as much as the petitioner, by his letter, dated 20.8.2009, approached the Commissioner and Secretary to the Government of Assam and by the letter dated 25.7.2009, while returning the challans requested the Range Officer to revalidate the challans. Therefore, it is contended that the findings of this court that the learned Single Judge committed no error, requiring interference is not based on record, need to be reviewed. It is also submitted, by the learned counsel, appearing for the petitioner, that, in view of the deposit of the entire kist money of the mahal and inability of the petitioner to operate the mahal, for no fault on his part, he was entitled to get refund of the amount with interest thereon. 11. The learned Government Advocate, supporting the impugned judgment and order, has submitted that the judgment and order has been rendered considering all the relevant points and on the basis of the materials, and that the grounds for review, taken by the petitioner, are not good grounds for review. 12. 11. The learned Government Advocate, supporting the impugned judgment and order, has submitted that the judgment and order has been rendered considering all the relevant points and on the basis of the materials, and that the grounds for review, taken by the petitioner, are not good grounds for review. 12. Having heard the learned counsel appearing for both the parties and carefully perusing the impugned judgment and order and the materials on record, we find that the basic contentions of the review petitioner, are that due to interference made by unauthorized persons, non-issuance of challans after revalidation, non-extension of time and transfer of the mahal before the lease period, he could not operate the mahal, despite paying the full kist money. According to the petitioner, non-consideration of the said aspects of the matter and the finding that the transfer of the mahal did not effect the petitioner's right to enjoy the same was an error apparent, on the face of the record, warranting review. 13. Order 47 Rule 1 of the Code of Civil Procedure, which prescribe the statutory provision for review reads as follows:- any person considering himself aggrieved-(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. 25. 25. In view of the above statutory provisions, an aggrieved person may apply for review of the order on the grounds, firstly, new or important matter or evidence, which after the exercise of due diligence, was not brought to his knowledge or could not be produced by him at the time, when the decree or order was passed or made, secondly, there was some mistake or error apparent on the face of the record and thirdly, for any other sufficient ground. In the case at hand, the review has not been sought on the ground that new or important matter or evidence, despite due diligence could not be brought on record. The ground of review is that there was mistake or error apparent on the face of the record. The term mistake or error apparent on record indicates an error, which is evident per se from the record of the case and does not require detailed explanation. Therefore, in view of the above statutory provision, we are required to examine if there was any error apparent on the face of the record of the judgment passed in the writ appeal aforesaid. 14. There is no dispute that the mahal was settled with the petitioner w.e.f. 12.11.2007 to 11.11.2009 for two years and he deposited the entire kist money i.e. upto the 8th kist on 12.8.2008. By letter dated 12.8.2009, the petitioner had sent a cheque towards the 8th kist money. Admittedly, in the joint inspection report dated 29.12.2008, it has been found that the Beat Officer, Chandrapur, informed that the approved agent of M/s. Simplex Infrastructure which was permitted to collect sand from Digaru Sand Mahal No. 4 upto 31.12.2008 collected sand from the mahal of the petitioner. By the said report, considering operational convenience, the transfer of the petitioner's mahal to Kamrup East Division was suggested. 15. By his letter dated 20.8.2009, the petitioner, alleging interference by others, requested the Commissioner and Secretary to the Government of Assam to grant time as non-functional period. By the letter dated 25.07.2009, the petitioner, while returning the challan books, requested to revalidate the same by extending the mahal period. Again, by his letter dated 26.8.2009, the petitioner, informing about the deposit of the 8th kist money (on 12.8.2009), requested the DFO, Nagaon, to issue the necessary permit and transit challans with a certificate regarding deposit of full kist money. Again, by his letter dated 26.8.2009, the petitioner, informing about the deposit of the 8th kist money (on 12.8.2009), requested the DFO, Nagaon, to issue the necessary permit and transit challans with a certificate regarding deposit of full kist money. The Chief Conservator of Forest (T) (for short CCF), by his letter dated 5.5.2009, drawing reference to the complaint, made by the petitioner, regarding interference by some unscrupulous person(s), in running the mahal, the joint inspection report, wherein it has been stated that due to transfer of some mahal, the petitioner's mahal had fallen within the jurisdiction of Kamrup East Division, made a proposal to the Principal CCF to transfer the mahal to Kamrup East, after the expiry of the current lease period on 11.11.2009 to ensure better operation and collection. The said proposal being approved, the DFO, Nagaon Division, by his letter dated 18.8.2009, sent the file of the mahal along with unused challans. The said letter, addressed to the DFO, Kamrup East, indicates that copy of the same was addressed to the petitioner and other officials. Aggrieved by the said transfer, the petitioner filed a writ petition, being WP (C) 3384/2009 seeking the following relief. The said letter, addressed to the DFO, Kamrup East, indicates that copy of the same was addressed to the petitioner and other officials. Aggrieved by the said transfer, the petitioner filed a writ petition, being WP (C) 3384/2009 seeking the following relief. It is, therefore, most respectfully prayed that your Lordships may graciously be pleased to admit this petition, call for the records and issue a Rule calling upon the respondents to show cause as to why a writ in the nature of certiorari/shall not be issued to set aside and quash the impugned order No. B/Sand/78/Mayang/7889-91 dated 18.8.2009 (Annexure 24 to writ petition) issued by DFO Nagaon thereby send all records pertaining to Mayang Beat Sand Mahal to DFO, Kamrup East Division and/or a writ in the nature of mandamus shall not be issued to cancel, rescind, forbear from giving effect to the order dated 18.8.2009 and the writ in the nature of prohibition should not be issued prohibiting the respondent authority from transferring the mahal in question and/or be pleased to issue appropriate direction/command to allow the petitioner to run the Mayang Beat Sand Mahal for its full term along with the non-functional period under the office of DFO, Nagaon, without any hindrance or obstacles created from any quarter and/or after cause or causes being shown, upon perusal of the records and/or hearing the parties be pleased to make the Rule absolute and/or further be pleased to pass such other further order or orders as to your Lordships may deem fit and proper so as to full and complete relief to the petitioner as prayed for and Pending disposal of the Rule your Lordships may be pleased to suspend/stay the impugned letter No. B/Sand/78/Mayang/7889-91 dated 18.8.2009 (Annexure 26 to writ petition) issued by the DFO, Nagaon, and/or be pleased to pass such other order or orders as your Lordships may deem fit and proper so as to grant adequate interim relief to the petitioner. 15A. The learned Single Judge, by judgment and order dated 18.9.2009, disposed of the writ petition with the following observations. By the aforesaid two letters, the proposal of the C.C.F., Assam for transfer of the Mahal to Kamrup (East) Division has been approved by the authority. It is not understood as to how, if during the operation of the Mahal, the same is transferred to Kamrup (East) Division, the petitioner would be affected. By the aforesaid two letters, the proposal of the C.C.F., Assam for transfer of the Mahal to Kamrup (East) Division has been approved by the authority. It is not understood as to how, if during the operation of the Mahal, the same is transferred to Kamrup (East) Division, the petitioner would be affected. The petitioner is a sitting lessee and in the event of compliance of the terms of settlement, certainly he would be entitled to run the Mahal for the leased out period. With the above observation, the writ petition stands disposed of. 16. From the prayer made in the said writ petition, i.e. the relief prayed for, it is found that the petitioner was aggrieved by the transfer of the mahal, during the mahal period i.e. prior to 11.11.2009. The appeal being preferred against the said order, this court is, required to examine if the said order, in the premise of the relief sought, suffered from any error or illegality infringing the petitioner's right to enjoy the mahal. 17. The respondent No. 5 i.e. the DFO, Nagaon, contesting the writ petitioner's claim and refuting the grounds taken in the appeal, by filing an affidavit-in-opposition (16.12.2009) clearly stated that, though the relevant files were sent to the DFO, Kamrup East, the mahal was not physically transferred to the DFO, Kamrup East and that the said transfer, being made for administrative convenience, did not affect the petitioner's right to operate the mahal and that the petitioner was bound by the terms of the agreement. He also averred that, even after depositing the 8th kist, the petitioner did not approach him for issuance of challans. 18. The said respondent No. 5, claiming the allegations made by the writ petitioner to be baseless, devoid of any iota of truth and ill motivated categorically stated that, on receipt of the complaint from the petitioner, prompt action was taken, that no unauthorized person was found in occupation of the mahal and that the agent of M/s. Simplex Infrastructure (P) Ltd. was stopped from collecting sand. It has also been stated that the petitioner's plea that he could not extract even a small quantity of sand was misleading. It has also been stated that the petitioner's plea that he could not extract even a small quantity of sand was misleading. Terming the averments, made by the petitioner, as motivated, the respondent No. 5 stated that the petitioner, with an ulterior motive, did not approach the respondent No. 5, seeking challans and that in view of the agreement, the petitioner was bound by the terms of the agreement. The said averments made by the respondent No. 5, in his affidavit-in-opposition, were neither controverted nor challenged by the petitioner by filing additional affidavit. Therefore, the said contentions, made by the respondent No. 5 remained uncontroverted. 19. This court, while considering the said statements made by the respondent No. 5, took note of the petitioner's contention regarding interference made by other persons, in operating the mahal, the deposit of the challans and also the transfer of the mahal vide letter dated 18.8.2009. Though, on behalf of the petitioner, it has been alleged, that the challans were not returned to him, that the copy of the letter dated 18.8.2009 was not served on him, that he could not operate the mahal due to interference by others, in view of uncontroverted averment, made by the respondent No. 5 in his affidavit, there is nothing on record to show that the respondent authority had refused to issue the challans during the mahal period or that he was debarred from enjoying the mahal. There is no material on record to show that the petitioner was completely ousted from possession of the mahal during the lease period. Though the inspection report, as referred to by the petitioner, indicates collection of sand by the agents of M/s. Simplex Infrastructure (P) Ltd., the respondent No. 5 stated that, coming to know about such collection, the company was stopped from collecting the sand. There is nothing on record to show that, except the said incident of collection of sand by the M/s. Simplex Infrastructure (P) Ltd., that too for a short period, any other person(s) had caused any hindrance to the petitioner. Therefore, after the said action, taken by the respondent authority, there is nothing, on record, to show interference by any other person(s) in connection with the enjoyment of the Mahal by the petitioner. 20. Therefore, after the said action, taken by the respondent authority, there is nothing, on record, to show interference by any other person(s) in connection with the enjoyment of the Mahal by the petitioner. 20. With regard to the contention that the letter dated 18.8.2009 was issued without serving a copy of the same on the petitioner, it is found, form the said letter, that a copy of the same was sent to the petitioner. The said act being done in normal course of official business, unless contrary is proved, it is to be presumed that said copy issued to the petitioner was received by him. That apart, the said letter, transferring the file, was issued on 18.8.2009 and the representation was made to the Commissioner and Secretary to the Government on 20.8.2009. In the said representation, it was stated that the petitioner came to know that the entire process of transferring the mahal was completed. By the said representation, the petitioner prayed for allowing him to extract entire mahal materials as allotted to him and also to review the process of transferring the mahal. The writ petition, whereby the transfer of the mahal was challenged, was disposed of on 18.9.2009 i.e. within the mahal period. The said attending facts and circumstances do not inspire confidence to believe that the transfer order was not communicated to the petitioner. Therefore, the findings that a copy of the transfer order was sent to the petitioner is not found to be an error apparent on the face of the record. 21. In his affidavit in opposition, which remained uncontroverted, the respondent No. 5, clearly stated that though the relevant file of the mahal was sent to the DFO, Kamrup East, the physical possession of the mahal was not transferred to the DFO, Kamrup East, and that the appellant i.e. the present petitioner was bound by the agreement executed by him with the respondent. Neither in the said affidavit, nor in the impugned order dated 18.8.2009, there is any whisper indicating curtailment of petitioner's right to operate the mahal. As discussed above, in the said affidavit, the respondent No. 5 stated that no unauthorized unscrupulous occupier was found in the mahal. Though the petitioner complained about interference by unauthorized persons, there is nothing on record to show that he was dispossessed from the mahal and that his right to operate the same was taken away. As discussed above, in the said affidavit, the respondent No. 5 stated that no unauthorized unscrupulous occupier was found in the mahal. Though the petitioner complained about interference by unauthorized persons, there is nothing on record to show that he was dispossessed from the mahal and that his right to operate the same was taken away. 22. That apart, the respondent No. 5, in his said affidavit, in clear terms, stated that the petitioner, even after depositing the 8th kist money, did not approach him for obtaining challans. The said statement made on oath (affidavit) has not been challenged by filing any counter affidavit. Hence, the same remained unrebutted. It is the admitted fact that the challans remained with the petitioner till he deposited the same on 25.7.2009. Therefore, it was his duty to collect the same. There is no material to show that, after the deposit of the challans on 25.7.2009 by the petitioner, the authority concerned had refused to return/issue the challans in favour of the petitioner. 23. In view of the above discussion, we are of the considered opinion that the findings of this Court, that there was no material on record to show that, after the said transfer of the mahal, despite his approach, the petitioner was not issued challans etc. during the mahal period or that he was not allowed to enjoy the mahal do not suffer from any error apparent on the face of the record. 24. The transfer of the mahal being an inter divisional arrangement only, for the sake of smooth administrative functioning and operational convenience, and the petitioner's right of enjoying the mahal during the lease period not being denied, either by the transferring or the transferee authority, there is no difficulty in arriving at the conclusion that the said transfer did not, in any manner, adversely affect the appellant's (present petitioner's) right to operate the mahal as per terms of the agreement. The said findings, being based on record, more particularly the averments made in the affidavit in opposition, filed by the respondent No. 5, we have no hesitation in holding that the same does not suffer from any error apparent on the face of the record, warranting review. In the light of the above discussion, we find no merit in this review petition. Accordingly, the review petition is dismissed. No costs. In the light of the above discussion, we find no merit in this review petition. Accordingly, the review petition is dismissed. No costs. The learned counsel for the petitioner has submitted that, despite direction made by court, the respondent authority failed to refund the deposited kist money with interest. In view of the above contention, we direct that, if there is any order for refund of the deposited amount, the respondent authority shall return the deposited money to the petitioner with interest, thereon, as per direction, if any. Petition dismissed