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2013 DIGILAW 879 (GAU)

Rajen Chutia v. State of Assam and Ors.

2013-12-18

BIPLAB KUMAR SHARMA

body2013
Biplab Kumar Sharma, J. The challenge in this writ petition is the Annexure-VI order dated Additional Deputy Commissioner (R), Sivasagar, by which the earlier settlement of land granted in favour of the petitioner has been cancelled. For a ready reference, the impugned order, dated 10.12.2010, is quoted below: No. SVRS. 23/96/50 Dated Sivasagar the 10th December, 2010 ORDER Seen the report of the Circle Officer, Sivasagar. It appears from the report that land stated to be allotted to Sri Rajen Chutia by SDLAC on 19.01.1997 is the same land for which encroachment case is pending against Sri Brojen Chutia and that the said land is Govt. Road Side Reservation land appertaining to Dag No. 180. It appears from the copy of the order dated 18.03.1999 passed by S.D.O.(S), Sivasagar in Enc. Case No. 28/98-99 that out of 52 encroachers of Govt. land Sri Brajen Chutia prayed for stopping his eviction for Govt., land vide petition dated 15.03.1999 before the Deputy Commissioner, Sivasagar and that the said petition was rejected on the ground that the encroached land was Govt. Road Side Reservation land. By the said order dated 18.03.1999 the S.D.O. (S) directed eviction of the encroachers including Shri Brojen Chutia. Some of encroachers preferred an appeal before the Hon'ble Board of Revenue against the said order of the S.D.O. (S) and the Hon'ble Board of Revenue in case No. 191 RA(S)/05 dismissed the appeal vide its order dated 29.12.1996 observing that Govt. Road Side Reservation Land could not be given settlement even to landless persons. All the above vital and material facts were not brought to my notice while passing the order dated 26.03.2010 granting settlement of 4 Kathas of land in the name of Shri Rajen Chutia. Since the settlement granted is against Govt. circular and law laid down by the Hon'ble Board of Revenue, there is an error of material fact and law appearing on the face of the record in my order dated 26.03.2010. Under the circumstances I hereby cancel the settlement granted by me said order by invoking Order 47 Rule 1 of Civil Procedure Code. Addl. Deputy Commissioner (R), Sivasagar, Memo No. SVRS. 23/96/50(A) Dated Sivasagar the 10th December, 2010. Under the circumstances I hereby cancel the settlement granted by me said order by invoking Order 47 Rule 1 of Civil Procedure Code. Addl. Deputy Commissioner (R), Sivasagar, Memo No. SVRS. 23/96/50(A) Dated Sivasagar the 10th December, 2010. According to the petitioner; he has been in possession of 4 Kathas of Government land covered by Dag No. 180 of Banmukh Chutia Gaon, under Konwarpur Mouza, since long time past and has been paying Touji Bahira revenue for the land. The petitioner had filed an application before the authority for settlement of the land. On the basis of the said application, an enquiry was conducted and the jurisdictional Circle Officer submitted a report certifying that the land is beyond 50 feet area reserved for road. Thereafter, the matter was placed before the SDLAC (Sub-Divisional Land Acquisition Committee), which, in its meeting held on 29.01.1997, approved the proposal for settlement of the land on payment of due premium. 2. After the aforesaid development, the Circle Officer, by his letter dated 22.01.2010, asked the authority to assess the premium of the land allotted to the petitioner and, accordingly, the premium for the land in question was fixed vide letter dated 23.03.2010 and the petitioner deposited an amount of Rs. 19,200/- on 25.03.2010 through Treasury Challan. Thereafter the Additional Deputy Commissioner, Sivasagar, vide his Annexure-IV letter, dated 26.03.2010, informed the petitioner about the settlement of the aforesaid land. As stated the writ petition, there was no question of handing over the possession of the land as the petitioner was already in possession of the same. 3. In paragraph 5 of the writ petition, the petitioner has stated that several other persons had also been settled with Government land alongside the land of the petitioner. When the matter rested thus, the petitioner received Annexure-V, communication dated 30.11.2010, from the Additional Deputy Commissioner, Sivasagar, asking him to appear before the Additional Deputy Commissioner on 06.12.2010 for hearing. The communication was made in reference to the settlement of the aforesaid land made with the petitioner. On receipt of the said communication, the petitioner appeared before the Additional Deputy Commissioner on 06.12.2010, but as claimed in the writ petition, he was not asked anything in respect of the land. 4. The communication was made in reference to the settlement of the aforesaid land made with the petitioner. On receipt of the said communication, the petitioner appeared before the Additional Deputy Commissioner on 06.12.2010, but as claimed in the writ petition, he was not asked anything in respect of the land. 4. The petitioner received the Annexure-VI impugned order dated 10.12.2010 conveying the decision of the authority to cancel the earlier settlement of land given to the petitioner for the reasons stated in the order itself. According to the petitioner, the impugned order has been passed by the Additional Deputy Commissioner at the behest of some interested party and without taking into account the relevant factual aspects of the matter. It has been stated that there is no question of pendency of any encroachment case against Brajen Chutia referred to in the impugned order in respect of the land in question. It has also been stated that the authority, when passing the impugned order, acted in gross violation of the principles of natural justice. The main thrust on which the writ petition is structured is that the impugned order could not have been passed invoking review jurisdiction without being empowered to exercise the said jurisdiction. 5. The respondents, both official and private, have filed their counter-affidavit opposing the writ petition. In the counter-affidavit filed by the respondent Nos. 4 and 5, it has been denied that the petitioner is in possession of the land in question since long time past, as the petitioner has been residing at Digboi after getting employment in the Indian Oil Corporation. Referring to the Encroachment Case No. 28/98-99 and the order therein passed by the SDO (S), Sivasagar, it has been stated that there was direction to evict the illegal encroachers of Dag No. 180 of Banmukh Chutia Gaon under Konwarpur Mouza. It has also been stated that against the order passed by the SDO(S), a revenue appeal, being Case No. 191 RA(S)/05, was preferred in which the respondent Nos. 4 and 5 were party respondents. According to the respondents, the said revenue appeal was dismissed by judgment and order dated 29.12.2006 and, subsequently, an application was filed before the Board of Revenue by the appellants against the said judgment and order, which was registered as Appeal No. 15 RA(S)(RVW)/07, but the same was also dismissed by order dated 25.05.2009. 6. According to the respondents, the said revenue appeal was dismissed by judgment and order dated 29.12.2006 and, subsequently, an application was filed before the Board of Revenue by the appellants against the said judgment and order, which was registered as Appeal No. 15 RA(S)(RVW)/07, but the same was also dismissed by order dated 25.05.2009. 6. According to the respondents, the payment of premium made by the petitioner cannot clothe him with any kind of right. In paragraph 6 of the counter-affidavit filed by respondent Nos. 4 and 5, it has been stated that they had filed a representation, on 29.11.2010, against the order of settlement dated 26.03.2010, issued by the Additional Deputy Commissioner, Sivasagar, based on which a report was called for from the Lal Mondal, who, vide his letter dated 6.12.2010, submitted a report to the effect that land allotted to the petitioner was in fact in possession of Brajen Chutia, an illegal encroacher. It has been further stated in the report that the land allotted to the petitioner is the same land in respect of which an Encroachment case was pending against Sri Brajen Chutia. Thereafter, the impugned order was passed. Along with the counter-affidavit, the respondents have enclosed a copy of the representation dated 29.11.2010 and report of the Lat Mondal submitted vide letter dated 06.12.2010. 7. In the counter-affidavit filed by the official respondent Nos. 2 and 3, it has been stated that the petitioner was in possession of Government land and, as recorded in the revenue records, the same is a Government roadside reserved land. Referring to the aforesaid Encroachment Case bearing No. 28/98-99, is has been stated that order was passed for removal of encroachment from the Government land. It has also been stated that the land, in question, in fact was in occupation of one Sri Brajen Chutia. Referring to the judgment of the Apex Court, in Civil Appeal No. 4484/96, it has been stated that mere payment of Touji Bahira revenue does not confer any right over the land. In paragraph 5 of the counter-affidavit of the official respondents, it has been stated that since the land is a roadside reserved land, the aforesaid encroachment proceeding was launched against Sri Brajen Chutia and 51 others. In the proceeding, the SDO (S), Sivasagar, vide his order dated 18.03.1999, issued direction for eviction of the encroachers. In paragraph 5 of the counter-affidavit of the official respondents, it has been stated that since the land is a roadside reserved land, the aforesaid encroachment proceeding was launched against Sri Brajen Chutia and 51 others. In the proceeding, the SDO (S), Sivasagar, vide his order dated 18.03.1999, issued direction for eviction of the encroachers. The appeal, preferred by some of the encroachers was also dismissed by the Board of Revenue, Assam, vide judgment and order dated 29.12.2006, passed in RA191(S)/05. 8. Referring to the aforesaid facts, it has been stated that since the earlier order of settlement dated 26.02.2010 was passed without being aware of the said facts, the mistake committed in passing the order was rectified by the impugned order. 9. The petitioner has filed reply-affidavits against the counter-affidavits. While reiterating and re-affirming the stand in the writ petition, the petitioner has also denied the contentions raised in the said counter-affidavits. According to the petitioner, the land in question was never in possession of the said Brajen Chutia, but, in fact is all along under his possession. 10. I have heard Mr. G.N. Sahewalla, learned Senior counsel, assisted by Ms. R. Jain, appearing for the petitioner. I have also heard Mr. G. Sharma, learned State counsel and so also Mr. C. Baruah, learned counsel, along with Mr. S.J. Sharma, learned counsel, representing respondent Nos. 4 and 5. I have considered the entire materials on record and also given my anxious consideration to the submissions made by the learned counsel for the parties. 11. Mr. Sahewalla, learned counsel for the petitioner, referring to the materials on record, made his submissions against the impugned order. He has also placed reliance on the decisions reported in 2008 (3) GLT 229 : 1994 (1) GLR 268 (Jiban Chandra Deka & Ors. v. The State of Assam & Ors.), AIR 1961 A&N 3 (The State of Assam v. Sifat Ali & Ors.), (2001) 6 SCC 512 (Kewal Chand Mimani v. S.K. Sen), (2008) 8 SCC 92 (SBI v. S.N. Goyal). 12. Both Mr. G Sharma, learned State counsel, and Mr. C. Baruah, learned counsel representing the private respondents, made their submissions in favour of the impugned order. 12. Both Mr. G Sharma, learned State counsel, and Mr. C. Baruah, learned counsel representing the private respondents, made their submissions in favour of the impugned order. According to them, when the earlier order of settlement, made in favour of the petitioner, was based on incorrect facts and without appreciating the relevant materials, the authority was within its jurisdiction to cancel the said order of settlement and pass the impugned order. As regards the decisions referred to above by the learned counsel for the petitioner, they submitted that none of the said decisions is applicable to the instant case. 13. On perusal of the earlier order of settlement dated 26.03.2010, it appears that the settlement was granted in favour of the petitioner on the basis of the proposal submitted by the Circle Officer, Sivasagar. In the said order, there was no mention of any pending Encroachment case, etc. When the relevant facts, relating to the land, were brought to the notice of the authority, the petitioner was asked, vide letter dated 30.11.2010, to appear before the Additional Deputy Commissioner (Revenue), Sivasar, on 06.12.2010. Thereafter, the impugned order was passed on 10.12.2010, which has been quoted above. As per the impugned order, there was an Encroachment case, in respect of the land that was allotted to the petitioner, in which there was an order for eviction of the encroachers and the said order was also affirmed by the Board of Revenue in Case No. 191 RA(S)/05. In the said proceeding, there is a clear finding that the Government roadside reserved land could not have been given settlement even to landless persons. It is under such circumstances, the Additional Deputy Commissioner had to cancel the earlier settlement order. While doing so, he has referred to the provisions of Order 47 Rule 1 of the Code of Civil Procedure. 14. Order 47 CPC provides for a review jurisdiction of the Court. It is in this context that Mr. Sahewalla, learned counsel for the petitioner has argued that unless the authority, which had earlier passed an order, is conferred with the power of review jurisdiction, it cannot review its own order. According to him, since the Additional Deputy Commissioner is not empowered to exercise review jurisdiction, he could not have passed the impugned order exercising the said jurisdiction without being vested with the said jurisdiction. According to him, since the Additional Deputy Commissioner is not empowered to exercise review jurisdiction, he could not have passed the impugned order exercising the said jurisdiction without being vested with the said jurisdiction. The decisions, on which he has placed reliance, are to buttress the said argument. 15. In Jiban Chandra Deka (supra), the Full Bench of this Court held that once a periodic patta is issued, it can only be cancelled for violation of the terms embodied in the patta Rule 26 reads as follows: Subject to the general control of the State Government, the Commissioner shall have power to confirm all settlements, and also to cancel any settlement made in contravention of these rules, after giving the lease-holder an opportunity of being heard. 16. In the instant case, the Additional Deputy Commissioner has only cancelled the settlement order, which was passed erroneously in not taking into account the facts mentioned in the impugned order. It is not a case of cancellation of periodic patta. 17. In Sifat Ali (supra), also the Division Bench of this Court, referring to the power of Commissioner exercising jurisdiction under the Assam Land and Revenue Regulation, held that the power is administrative and, in absence of violation of rules, he is not vested with the jurisdiction to cancel periodic patta issued in pursuance of an order of settlement. 18. In Kewal Chand Mimani (supra), the Apex Court, referring to the provisions of Order 47 of the CPC, held that the power to review is not an inherent power and it must be conferred by law, either specifically or by necessary implication. In S.N. Goel (supra) also the same proposition has been laid down. 19. Needless to say that the ratio of a decision will have to be understood in the background of fact situation of each case. In the instant case, although the impugned order refers to the provisions of Order 47 CPC, but that by itself cannot render the order bad in law on the analogy that the authority, passing the impugned order, did not have review jurisdiction specifically or impliedly conferred on it. On a reading of the impugned order, what has transpired is that certain relevant facts and vital aspects of the matter were not taken into consideration while settling the Government land in favour of the petitioner. On a reading of the impugned order, what has transpired is that certain relevant facts and vital aspects of the matter were not taken into consideration while settling the Government land in favour of the petitioner. When those things were brought to the notice of the authority, which had earlier settled the land with the petitioner, the order of settlement was cancelled. 20. It is an admitted position that there was an Encroachment case in respect of the land in question along with some other plots of land, which are, admittedly, Government land. The order passed by the Additional Deputy Commissioner for removal of encroachment attained finality with the final judgment and order passed by the Board of Revenue, Assam. Such finality of the order could not have been set at naught by issuing the order of settlement in favour of the petitioner. When the relevant facts, including the order for removal of encroachment, were brought to the notice of the authority making the settlement, it had no other option but to cancel the settlement. Such a course of action, in my considered view, cannot be said to be review of the earlier order of settlement. The impugned order is merely a correction of mistake earlier committed in settling the Government land with the petitioner. 21. Although the earlier settlement order was passed on 26.03.2010, but before the same could lead to issuance of patta etc., the authority issuing the order of settlement, issued notice to the petitioner on the basis of materials made available to it against the order of settlement and, thereafter, passed the impugned order on the grounds stated therein. 22. Along with the counter-affidavit filed by the respondent Nos. 4 and 5, they have enclosed a copy of the judgment and order dated 29.12.2006, passed by the Assam Board of Revenue in Case No. 191 RA(S)/05. The judgment clearly refers to the land under Dag No. 180 and the above-referred Encroachment case. While upholding the order of eviction, the Board of Revenue made the following observations: 13. After careful perusal of the records and hearing the advocates for the respondents I am satisfied that no encroachment on Govt., land especially on roadside reserve should be allowed. Therefore, there is no reason to interfere with the impugned eviction order. While upholding the order of eviction, the Board of Revenue made the following observations: 13. After careful perusal of the records and hearing the advocates for the respondents I am satisfied that no encroachment on Govt., land especially on roadside reserve should be allowed. Therefore, there is no reason to interfere with the impugned eviction order. The appeal has no merit and just because one is landless it does not mean that encroachment on roadside and river bank etc. can be allowed. The appeal is therefore dismissed as the same is not maintainable. Before parting the Deputy Commissioner, Sivasagar, is directed to examine the case of the appellants regarding their landless character and if the appellants are really landless and eligible for getting allotment of land as per the State's land Policy then he will take action accordingly subject to the availability of suitable land. In result the appeal is dismissed. No costs. Stay order passed on 04.10.2005 is vacated. 23. The Full Bench of this Court, in State of Assam v. Moslem Mondal, reported in 2003 (I) GLT 809, dealing with the power of the Foreigners Tribunal to set aside its ex parte orders, while holding that as soon as the Tribunal renders its opinion, it becomes functus officio as no proceeding thereafter remains pending, also held that it cannot be said that the Tribunal has no jurisdiction to pass an order even after disposal of the proceeding, in the interest of justice. In this connection, the following observations of the Full Bench may be referred to: (90) Though strictly speaking as soon as the Tribunal renders its opinion it becomes functus officio as no proceeding thereafter is pending, it cannot be said that the Tribunal has no jurisdiction to pass an order, even after the disposal of the proceeding, in the interest of justice. The Courts and the Tribunals exist to do justice. The Courts and the Tribunals exist to do justice. It cannot refuse to entertain an application, even after the proceeding before it is over, on the ground that there is no specific provision in law laying down the procedure for entertaining such application, if such application is required to be entertained to do justice between the parties, otherwise the very existence of the Court or the Tribunal would be meaningless, if in a given case where such an order is required to be passed, the Court or the Tribunal refuses to pass such order on the plea of technicalities. The procedures are handmaid of justice and must be regarded as something designed to facilitate justice and further its ends and not a thing designed to trip people up (Sangram Singh v. Election Tribunal, Kotah, reported in AIR 1955 SC 425 ). Moreover, by the nature of the quasi-judicial proceeding before the Tribunal they have the trappings of the Civil Court. Neither the 1946 Act nor the 1964 Order or any procedure formulated by the Tribunal prohibits acceptance of any application after rendering the opinion by the Tribunal, if the entertainment of the same is required for ends of justice. (91) The Apex Court in Grindlays Bank Ltd. (supra) while dealing with the power of the Labour Court, constituted under the Industrial Disputes Act, to entertain an application to set aside its ex-parte award, has held that there being no statutory prohibition to entertain such an application, the Tribunal has the power to entertain the same in the interest of justice. It has also been held that though there is no express provision in the Industrial Disputes Act or the Rules framed thereunder giving the Tribunal jurisdiction to entertain such application, the Tribunal should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. It has also been held that the power given to the Tribunal under Section 11(1) of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 to follow such procedure as the Arbitrator or other authority concerned may think fit, are of widest amplitude and confer ample power upon the Tribunal and other authorities to devise its procedure as the justice of the case demands. The Apex Court further opined that the object of giving such wide power being to mitigate the rigour of the technicalities of the law for achieving the object of effective investigation and settlement of the disputes, the Tribunal can entertain an application for setting aside an ex-parte award. The Tribunal, however, is required to exercise its discretion relating to the entertainment of such application, in a judicial manner, without caprice and according to the general principle of law and rules of natural justice. The same view has also been reiterated by the Apex Court in Satnam Verma (supra). 24. The petitioner cannot assert his right on the ground that the order of settlement, once made by the authority, could not have been cancelled on a review of the same. A distinction will have to be made between exercising review jurisdiction and correction of an error on factual aspect of the matter. In the instant case, the earlier order of settlement was based on factual errors, but when the same was brought to the notice of the said authority issuing the said order, it could not have allowed the illegality to continue on the technical ground, as has been asserted by the petitioner. 25. If there was encroachment in respect of the land, based on which the order of eviction was passed and the same was affirmed on appeal, that was a relevant consideration for the authority before issuing the order of settlement. If the land in question is a Government roadside reserved land, that was also a relevant consideration. However, all these facts were not brought to the notice of the authority making the settlement of the land in favour of the petitioner. Once the real facts were brought to the notice of the said authority, it merely corrected the earlier mistake committed by issuing the impugned order. Merely because the same refers to the provisions of Order 47 CPC relating to review jurisdiction, the same cannot be viewed in the context of the issue relating to exercise of review jurisdiction, as has been discussed in the aforementioned decisions referred to by the learned counsel for the petitioner. 26. Merely because the same refers to the provisions of Order 47 CPC relating to review jurisdiction, the same cannot be viewed in the context of the issue relating to exercise of review jurisdiction, as has been discussed in the aforementioned decisions referred to by the learned counsel for the petitioner. 26. The requirement of the concept of justice being of prime consideration, the same cannot be defeated on the technical point raised by the petitioner coupled with the fact that by the impugned order the authority merely has undone the mistake earlier committed by it. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed without, however, any order as to costs.