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2013 DIGILAW 832 (GAU)

Himatsingka Motor Works v. State of Assam

2013-11-28

NISHITENDU CHAUDHURY

body2013
JUDGMENT Nishitendu Chaudhury, J. 1. Heard Mr. J. Roy, learned counsel for the petitioner as well as Mr. M. Bhagabati, learned Government Advocate, Assam. In this application the petitioner has challenged the order dated 07.09.2007 passed by the Additional Deputy Commissioner, Kamrup(M), under Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 permitting the private respondent No. 7 to become owner of the land by depositing 50 times of the annual revenue through Treasury Challan. The case of the petitioner is that a notice was received by the writ petitioner on 21.06.2007 in Tenancy Case No. 41 of 2007 wherein no next date of the said case was mentioned and no copy of application filed by the respondent No. 7 before the Deputy Commissioner praying for ownership right was annexed. On receipt of such notice the petitioner filed an application before the Additional Deputy Commissioner, Kamrup(M) on 21.07.2007 asking for copy of application as well as documents if any submitted by the private respondent No. 7 and to permit him one month time to file objection. 2. This application was filed on 23.07.2007 though it was prepared on 21.07.2007 and it appears from the order sheet annexed to the writ petition as Annexure-4 series that thereafter on 20.08.2007 the first party (respondent No. 7 herein) was present, but the present writ petitioner being the second party did not appear. The case was accordingly fixed on 27.08.2007 on which date also the present petitioner remained absent without any step and the first party (respondent No. 7 herein) was present. Thus after putting up appearance in the month of July, 2007, the petitioner did not appear on subsequent two dates and under such circumstances, the learned Additional Deputy Commissioner passed an order on 07.09.2007 ex-parte against the present petitioner giving permission to the respondent No. 7 to obtain ownership rights under Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (herein after referred to after as 'the Act') by depositing 50 times of the Annual Revenue through Treasury Challan. The order is available at page 34 of the writ petition. From the recital of the order, it appears that circle officer submitted a report in this case and in term of the said report, it came to light that the land was Government ceiling land and was previously allotted to respondent No. 7. The order is available at page 34 of the writ petition. From the recital of the order, it appears that circle officer submitted a report in this case and in term of the said report, it came to light that the land was Government ceiling land and was previously allotted to respondent No. 7. Later on in the final order of the case name of the present petitioner was mentioned as allottee and accordingly, the land records were corrected. This is how the present petitioner became owner. Admittedly notice was duly served on the petitioner and since he did not appear on subsequent dates after putting up appearance on 23.07.2007 the Additional Deputy Commissioner had to pass an order. 3. It is stated at the Bar that after passing of the said order respondent No. 7 deposited the required revenue and thereupon, the ownership right of the respondent No. 7 has been confirmed. The aforesaid order dated 07.09.2007 has been brought under challenge before this Court. In course of argument, the learned counsel for the petitioner submits that the said order was passed without jurisdiction in view of the fact that Section 23 conferred power on the Deputy Commissioner only to pass necessary order for conferring ownership right on a occupancy tenant and not on Additional Deputy Commissioner. But here in this case whole proceeding was conducted by the Additional Deputy Commissioner and as such the proceeding was void for being without jurisdiction. The second point urged by Mr. Roy is that the notice referred to above which was served by the petitioner and pursuant to which the petitioner appeared before the authority on 23.07.2007 by filing application praying for time as well as copy of application and documents if any did not bear any date and as such it was no notice in the eye of law and consequently the whole proceeding was vitiated for the valuation of the natural justice. 4. Respondent Nos. 4 & 8 submitted an affidavit-in-opposition on 23.08.2010 and in the said affidavit it has been pointed out that respondent No. 7 Sri Digen Rahang filed petition in Form No. 5 under Rule 9 of Assam (Temporarily Settled Arrears) Tenancy Rules, 1972 and thereupon Tenancy case No. 14 of 2007 was initiated on 06.06.2007 fixing 07.07.2007 as the next date. 4 & 8 submitted an affidavit-in-opposition on 23.08.2010 and in the said affidavit it has been pointed out that respondent No. 7 Sri Digen Rahang filed petition in Form No. 5 under Rule 9 of Assam (Temporarily Settled Arrears) Tenancy Rules, 1972 and thereupon Tenancy case No. 14 of 2007 was initiated on 06.06.2007 fixing 07.07.2007 as the next date. The relevant records were called for from the concerned Circle Officer, Sonapur Revenue Circle, Kamrup, on 08.06.2007 thereof as per Rule 10 of Assam (Temporarily Settled Areas) Tenancy Rules, 1972 (herein after referred to as 'on rules'). Notice was sent to the petitioner granting him 1 month time for filing objection, if any, from the date of receiving the notice. On 21.06.2007 the writ petitioner had received the notice. It is further stated that the writ petitioner appeared before the authority on 21.07.2007 but on the subsequent dates he did not appear and under such circumstances order was passed on 07.09.2007 in good faith and after observing the procedures of requisition of ownership by the tenant as required under Chapter 13 of the Act. It is specifically stated in the affidavit that ample opportunity was given to the writ petitioner, but he never appeared before the Court after 21.07.2007. In the affidavit an objection on maintainability the writ petition has also been taken up specifically by referring the availability of remedy by way of statutory appeal under Section 67 of the Act. It is stated in the affidavit-in-opposition that the writ petitioner having tailed to prefer appeal before the statutory authority the order passed by the Additional Deputy Commissioner attained finality and there is no scope for further interference in it is disclosed in the affidavit that declaration in the official gazette was already published as to the conclusive findings of the notice of acquisition of ownership by the tenants. In short, the statement of the officers in the affidavit is that the authority having passed order in exercise of power under Section 23(i) of the Act following all procedural requirements there was no error in the decision making process and as such the same cannot be interfered with by way of judicial review. 5. In short, the statement of the officers in the affidavit is that the authority having passed order in exercise of power under Section 23(i) of the Act following all procedural requirements there was no error in the decision making process and as such the same cannot be interfered with by way of judicial review. 5. Private respondent No. 7 has also filed an affidavit-in-opposition against the writ petition and in Paragraph-8 of the said writ petition the same objection as to availability of statutory remedy has been asserted as a ground for refusing the exercise of the power of judicial review. The objection taken in the affidavit-in-opposition of the private respondent is that by following due process, ownership right has been conferred on him and once a benefit has been given to him by following the procedure established by law and if the said order giving such benefit is to be challenged it can be done in the manner prescribed in the Act and not otherwise. The remedy of appeal under Section 67 is the statutory remedy available to the person aggrieved by such order and admittedly, the petitioner in the present case has failed to file such alternative efficacious remedy. 6. Respondent No. 7 has annexed a copy of Assam Gazette published on 10.10.2007 which shows that declaration was made by the appropriate authority giving right of ownership to the petitioner under Section 23 of the Act with effect from 07.09.2007. The respondent No. 7 has annexed a copy of a judgment in title suit No. 61 of 2002 as Annexure-4 to the affidavit-in-opposition. The said judgment was passed by the learned Civil Judge Junior Division No. 3, Guwahati, dismissing the suit of the writ petitioner filed for ejectment of the respondent No. 7 as tenant under Assam (Temporarily Settled Areas) Tenancy Act, 1971. The writ petitioner filed the suit for ejectment of respondent No. 7 under the provision of Section 50 & 51 of the Act, The status of the respondent No7, therefore, as tenant under the writ petitioner is admitted fact. In that view of the matter proceeding under Section 23 of the Act cannot be said to be baseless. 7. Coming to the question of objection taken by the writ petitioner in this case that the order has been passed by the Additional Deputy Commissioner and the Deputy Commissioner cannot be countenanced. In that view of the matter proceeding under Section 23 of the Act cannot be said to be baseless. 7. Coming to the question of objection taken by the writ petitioner in this case that the order has been passed by the Additional Deputy Commissioner and the Deputy Commissioner cannot be countenanced. The Act does not define 'Deputy Commissioner' anywhere. However, in Assam Land and Revenue Regulation, 1886, the Deputy Commissioner has been defined under Section 3(m). The said definition is quoted as below: "(m) 'Deputy Commissioner' includes and shall be deemed always to have included the Additional Deputy Commissioner;" 8. On the face of the definition given in the Assam land and Revenue Regulation, 1886 and in view of the law laid down by this Court leading to incorporation of the present Section 2(m) of the Assam Land and Revenue Regulation, it is established that the Deputy Commissioner in State of Assam includes the Additional Deputy Commissioner as well. Since the question as to the status of the Additional Deputy Commissioner and the Deputy Commissioner is no longer res integra, the objection of the petitioner that the proceeding was done by the Additional Deputy Commissioner unauthorisely is not acceptable. 9. Besides facts remain that notification was issued by the Additional Deputy Commissioner and the proceeding was done by the Additional Deputy Commissioner. The writ petitioner filed application before the Additional Deputy Commissioner and as such for all practical purpose Additional Deputy Commissioner was the authority for exercising power of Deputy Commissioner in regard to the Section 23 of the Act. By application of de fecto doctrine which is upheld by the Supreme Court in the case Gokaraju Rangaraju Vs. State of Andhra Pradesh reported in (1981) 3 SCC 132 , it is no longer in dispute that once an authority de fecto exercises the jurisdiction even if he does not have the power de jure, the exercise of power will not become vitiated. To prevent confusion in the conduct of public business the legal maxim provides that the act of an officer de fecto cannot be questioned collaterally even if de fecto one who is not authorised but holds office under colour of lawful authority and though his appointment is defective. To prevent confusion in the conduct of public business the legal maxim provides that the act of an officer de fecto cannot be questioned collaterally even if de fecto one who is not authorised but holds office under colour of lawful authority and though his appointment is defective. In the case in Gokaraju Rangaraju (Shupra) the Hon'ble Supreme Court has applied the principle of de fecto doctrine in the Indian Context and as such by application of the said principle also an order passed by the Additional Deputy Commissioner in regular course of business cannot be challenged as without jurisdiction 10. So the basic objection of the writ petitioner that the order is without jurisdiction and illegal is not tenable in any view of the matter. 11. The next submission of the learned counsel for the petitioner is that the notice issued to the petitioner did not contain the next date for appearance. Fact remains that the notice was served on the petitioner and the said notice admittedly contain the case number inasmuch as the said notice has been annexed to the writ petition as well. Thereafter, the writ petitioner appeared before the learned Addl. Deputy Commissioner praying for time and under such circumstances once the notice was served, the petitioner became aware of the case number and filed application before the authority, he cannot be heard to say that the notice was not a due notice. After all, proceeding under Section 23 of the Act is a beneficial legislation for agrarian reforms. The basic purpose of notice is to make the pattadar aware that a proceeding was going on under Section 23 of the Act and if the said purpose is served and the Patadar appear before the authority only because the notice did not contain details cannot vitiate the proceeding and as such the objection of the writ petitioner that the proceeding has been vitiated cannot be maintainable. Both the arguments of the learned counsel for the petitioner having been found of no substance, the writ petition is bound to fail. The writ petition is dismissed. However, no order as to cost.