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2014 DIGILAW 622 (GAU)

UNION OF INDIA v. STATE OF ASSAM

2014-06-12

A.M.SAPRE, UJJAL BHUYAN

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JUDGMENT : - A.M. Sapre, J. This is an intra-court appeal filed by the writ petitioner of WP(C) No.2908/2012 and respondent No. 1 of W.P(C) No. 5424 of 2012 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 03.10.2013 passed by the Single Judge in abovementioned writ petition. By impugned common order, the learned Single Judge disposed of the aforementioned two writ petitions being WP(C) No.2908/2012 and WP(C) No.5424/2012 and while allowing the writ petition No. 5424/2012 dismissed the writ petition No. 2908/2012 both arising between the same parties and relating to same subject matter. So the short question, which arises for consideration in this writ appeal filed by the Union of India (General Manager - NF Railways) is whether learned Single Judge was justified in allowing the writ petition of respondent no. 6 herein and was in consequence justified in dismissing the appellant’s writ petition? The dispute involved in this appeal centers around to the land bearing Dag No.558/151, KM Patta No.74, Dag No. 544/149 KM Patta No.14, Dag No. 545/150 KM Patta No.1 of situated at Gotanagar, Mouza Jalukbari. It is between the appellant (Union of India through General Manager -NF Railway’s Maligaon GHY – II District Kamrup) on the one hand and respondent no. 6 of WP(C) No.2908/2012 - a private party on the other hand. Both claim ownership rights over the land in question. The appellant (Railway’s) claim on the basis of some correspondence which they have had in past with the State Government in respect of the land in question, and entries in revenue records whereas the respondent no. 6 claim on the basis of a sale deed said to have been executed by some private party in their favour. This dispute started from the revenue courts for mutation of their names as to whose name be allowed to be mutated in revenue records against this land. As mentioned above, both asserted their respective rights, title and interest on the strength of the documents in their possession and opposed the claim of mutation of each other in revenue courts. The matter eventually reached to the writ court at the instance of both from the revenue courts to the High Court in aforementioned 2 writ petitions. As mentioned above, both asserted their respective rights, title and interest on the strength of the documents in their possession and opposed the claim of mutation of each other in revenue courts. The matter eventually reached to the writ court at the instance of both from the revenue courts to the High Court in aforementioned 2 writ petitions. So far as appellant was concerned, their writ petition was WP(C) No.2908/2012 whereas so far as respondent No.6 was concerned, their writ petition was WP(C) No.5424/2012. The learned Single judge while deciding both the writ petitions by common order went into the question of title to find out as to who could be held as owner of the land in question on the basis of the documents/exhibits filed by the parties in revenue courts and on appreciating the documents recorded a finding that the respondent no. 6 was the “bonafide purchaser” of the land and hence their names be mutated in the revenue records in place of appellant (Railway’s). It is apposite to mention this finding of the writ court herein below. “12. The infirmity in the order dated 13.6.2012, whereby the ADC, Kamrup(M) has mutated the name of the railway can also be ascertained from the fact that in the affidavit of the State authorities there is no statement that before correcting the records notices were duly served upon the recorded pattadars. Chapter-IV (Part-B) of the ALRR mandates filing of an application before the revenue authority for mutation of the name by the purchaser and thereafter such authority is required to give notice to the recorded pattadars. Such application for mutation of the name is required to be made within 6 months of taking possession or assumption of charge to the D.C. under Regulation-50. Thereafter the Deputy Commissioner is under an obligation to make an enquiry meaning thereby the recorded pattadars have to be heard and spot verification of the land should be made before correcting the records of the land. However, the instant case the name of the railway has been abruptly inserted in the records without any notice to the pattadars. Hence, the orders of the ADC, Kamrup, Guwahati 13.6.2012, mutating the name of the railway in the records of right is illegal and unsustainable in law. Even otherwise, the company is a bonafide purchaser of land from recorded pattadars. Hence, the orders of the ADC, Kamrup, Guwahati 13.6.2012, mutating the name of the railway in the records of right is illegal and unsustainable in law. Even otherwise, the company is a bonafide purchaser of land from recorded pattadars. On this ground also the law of estoppel would operate against the railway and eviction of the company can not be justified on the basis of the impugned mutation order. (Emphasis supplied) The learned Single Judge in the light of aforesaid finding proceeded to allow the respondent no. 6’s writ petition No.5424/2012 and in consequence dismissed the appellant’s writ petition [WP(C) No.2908/2012] giving rise to filing of this appeal by the Railways. Heard Ms. B Devi, learned counsel for the appellants and Mr. R Dubey, learned counsel for the respondents. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the writ appeal and while setting aside the impugned order dispose of the two writ petitions named above as under: In our considered opinion, the writ court (Single Judge) should not have embarked upon any factual inquiry much less roving factual inquiry in to the question of ownership of the land in writ jurisdiction under Article 226/227 of the Constitution of India and nor it had jurisdiction to do so . In no case, the writ court could have returned the aforesaid finding of fact and declared the respondent no. 6 to be the owner of the land in question in these proceedings. It was an admitted fact that the proceedings of the two writ petitions had arisen out of mutation proceedings decided by the Revenue Courts under the Assam Land Revenue Code. It is the settled law that revenue courts while deciding the rival claims of the parties in mutation proceedings does not possess the jurisdiction to decide the ownership claims of any party on a particular land. The jurisdiction to decide the ownership issue in relation to any immovable property is with the civil court. The mutation proceedings are subject to the result of the decision of the civil court and depending upon the civil courts decision, the order of mutation is passed in favour of the party in whose favour the decision is given by the civil court. The mutation proceedings are subject to the result of the decision of the civil court and depending upon the civil courts decision, the order of mutation is passed in favour of the party in whose favour the decision is given by the civil court. In substance therefore, the revenue court could not decide the rival ownership claims of the parties over the land and had to grant liberty to parties concern to get their claim adjudicated by the civil court in a civil suit. A fortiori - the writ court while deciding the writ petition arising out of such mutation proceedings also did not have jurisdiction to decide the ownership claims either way. Coming now to the facts of the case, the writ court, in our view, erred in recording a finding of fact in respondent no. 6’s favour on their ownership rights. Such finding could be recorded only by the civil court and that too with the aid of evidence (oral /documentary) adduced by the parties if led. In other words, where there were rival claimants, then the only course open to the writ court was to direct the parties to approach the civil court and seek declaration of their ownership rights over the land and till the decision was not given by the civil court, the mutation proceedings should have been stayed or /and kept in abeyance. Once the civil suit was filed, the civil court would have called upon the parties to adduce evidence to prove their title in accordance with law. The order of mutation could be passed in the light of decision of the Civil Court. Since this legal position arising in the case was not applied and hence interference in the impugned order is called for in the appeal. In the light of foregoing discussion, the appeal succeeds and is allowed. Impugned order is set aside. Liberty is granted to the appellant or/and respondent no. 6 as the case may be to file the civil suit /counter claim in the competent civil court for declaration of their ownership rights over the land in question and on proving their right, title and interest in the land obtain the decree from the civil court. Till the civil suit is decided, the mutation proceedings out of which this appeal arise shall remain stayed. Till the civil suit is decided, the mutation proceedings out of which this appeal arise shall remain stayed. Depending upon the declaration granted by the civil court, the revenue court would mutate the name of owner over the land in revenue records. Need less to observe, the civil court would decide the suit strictly in accordance with law on the basis of pleadings and evidence adduced by the parties and would not be influenced by any observations or/and findings of either revenue courts/tribunal or the writ court or this court. No cost.