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2016 DIGILAW 465 (GAU)

Niranjan Chakraborty v. State of Assam

2016-05-26

HRISHIKESH ROY

body2016
JUDGEMENT : Heard Mr. K. Choudhury, the learned Counsel for the petitioner. The learned Govt. Advocate Mr. J. Handique appears for the respondent No.1. The Rangapara Town Committee (hereinafter referred to as ‘the Town Committee’) and their Chairman (respondent Nos.2 & 3) are represented by the learned lawyer Mr. P. Mahanta. The private respondent Nos.4 - 7 are represented by the learned counsel Ms. B. Choudhury. 2. The petitioner purchased a plot of land measuring 4 Lechas out of total 6 Lechas, covered by Dag No.551, Periodic Patta No.337, situated at Rangapara Town, Ward No.3 of Balipara Mouza in Sonitpur District, from the pattadars and possessors Kashinath Paul and Tapan Paul (sons of Late Makhan Paul), through the Regd. Sale Deed No.923, dated 2.6.1999 (Annexure-1). Just a month before the sale transaction, the category of the sold land was converted from annual patta into periodic patta, under the Govt. Approval dated 20.5.1999 (Annexure-2) and after the stipulated premium was deposited, the Addl. DC (Revenue), Sonitpur passed the order on 29.5.1999 (Annexure-4) for conversion of the 6 Lechas land under Dag No.551 to miyadi patta from annual patta. The purchaser applied for mutation and the same was granted on 12.9.2001 in the Mutation Case No.40 and the land measuring 4 Lechas, covered by Dag No.551 of Periodic Patta No.337 was mutated in favour of Niranjan Chakraborty, in place of the sellers, Kashinath Paul and Tapan Paul. 3. After the purchased land was mutated in his favour, the purchaser made an application on 24.9.2001 (Annexure-6) to the Circle Officer, Chariduar, where he prayed for a direction on Chairman of the Town Committee to provide a Holding No. for the purchased property. The application for the Holding No. was forwarded to the Chairman on 24.9.2001 (Annexure-7) by the Circle Officer with the request for consideration of granting of the Holding No. 4. Following the application made by the purchaser, the Chairman of the Town Committee issued notice on 5.11.2001 (Annexure-8) to Surendra Dhar (the predecessor of the private respondent Nos.4 -7), the two sellers Kashinath Paul and Tapan Paul and the purchaser Niranjan Chakraborty, for a discussion on 8.11.2002, in the Chairman’s office. Thereafter demarcation of the land purchased by the petitioner was ordered by the Chairman on 11.1.2002 (Annexure-9). Thereafter demarcation of the land purchased by the petitioner was ordered by the Chairman on 11.1.2002 (Annexure-9). Finally the order No.50/2001-2002 was passed on 20.8.2002 (Annexure-10), whereby granting the Holding No.263(ka) to the applicant/writ petitioner for the purchased 4 Lechas land was ordered: “Order No. 50/2001-2002 : On the basis of the application dated 8.10.2001 and 5.11.2001 submitted by Sri Niranjan Chakraborty today on 7.2.2002, the Chariduar Circle Officer vide letter being TCTB-1/2001-2002/58 dated 11.01.2002 was requested to find out the person in whose name 4 lechas of land under Dg No.551 of K.P. Patta No.337 did exist and to identify the same with demarcation of boundary and in pursuance to that the latmandal of the Circle Officer demarcated the boundaries of that land which is under possession of Sri Niranjan Chakraborty and under mutation in his name. As per the records of the Town Committee the holding situated on that land is in the name of Sri Surendra Dhar. Hence on consideration of all aspect of the matter of land which is under possession of Niranjan Chakraborty with mutation in the Revenue Records of the holding No.263 has been included under holding No.263(Ka). In future on the dispute arises the Town Committed shall abide by the order of the Hon’ble Court. Sd/- Sri Kamania Naga Chairman Rangapara Town Committee.” As can be seen from the above, in the Chairman’s order, a rider was given to the effect that the decision of the Chairman is subject to Court’s order. 5. Eight years after the Holding No.263(ka) was issued to the writ petitioner, the Chairman of the Town Committee passed an order on 15.12.2010 (Annexure-12), whereby the Holding No.263(ka) was cancelled and the same is ordered to be merged with the Holding No.263, existing in favour of Surendra Dhar. This order was passed at the instance of the private respondents. It was reflected in the impugned order that the decision for canceling the Holding No.263(ka) was on the basis of the Court’s direction. This observation must have been made in the context of the rider in the earlier order of 20.8.2002, whereby the granting of Holding No.263(ka) was made subject to the decision of the Court. 6. It was reflected in the impugned order that the decision for canceling the Holding No.263(ka) was on the basis of the Court’s direction. This observation must have been made in the context of the rider in the earlier order of 20.8.2002, whereby the granting of Holding No.263(ka) was made subject to the decision of the Court. 6. But interestingly when the writ petitioner as the aggrieved party applied under the RTI Act, for the concerned Court order on the basis of which the cancellation of the holding was ordered to the prejudice of the applicant, he was informed (Annexure-13) in writing by the Chairman that the cancelation decision was not based on any Court verdict and as such the Chairman failed to provide any order or judgment of the Court which may justify the cancelation of holding. 7.1. Assailing the legality of the decision of the Chairman of the Town Committee, Mr. K. Choudhury, learned Counsel submits that a valuable right was conferred upon the petitioner by issuing the Holding No.263(ka) on 20.8.2002 and the said right could not have been extinguished, without affording hearing to the affected party. The petitioner contends that neither any notice was issued by the Chairman nor any hearing was afforded and therefore the Chairman’s order is contended to be vitiated under the principles of audi alteram partem. 7.2. The petitioner refers to the order dated 20.8.2002, whereby the Holding No.263(ka) was granted and submits that all concerned parties (including the private respondents) were heard before the Holding No. was issued to the applicant, after he secured mutation over the purchased property and since only a Court’s order could have permitted the Chairman to cancel the Holding No., in the absence of any such Court order, as has been acknowledged by the Chairman himself, the cancellation of the Holding ordered on 15.12.2010 is totally unjustified. 7.3. 7.3. The learned counsel for the petitioner submits that the predecessor of the private respondents had initiated eviction proceeding against their tenants through the T.S. No.42/1987 but this case do not relates to the property purchased by the petitioner under Dag No.551 of Periodic Patta No.337 and therefore it is argued that the proceeding in the Title Execution Case No.15/1996 could never be the justification for cancellation of the holding granted to the petitioner for a different property, which has no connection at all with the decree in the eviction suit. 8. In the absence of any counter affidavit of the Rangapara Town Committee, Mr. P. Mahanta, learned counsel is not in a position to make any meaningful submission and accordingly he leaves the burden to be discharged by the learned lawyer for the private respondents. 9.1. Representing the respondent Nos.4-7, Ms. B. Choudhury, learned counsel refers to the notice issued on 29.11.2010 by the Chairman of the Town Committee to project that the writ petitioner was asked to appear for a hearing in the Chairman’s office on 30.12.2010 and since copy of this notice was marked to the other side, Ms. Choudhury submits that the writ petitioner too must have received the notice and yet he failed to appear during the proceeding for cancellation of the holding number. 9.2. The private respondents also contend that the cancellation of the Holding No.263(ka) was rightly ordered as the respondents succeeded with their eviction case and the order of the Chairman is based upon the verdict of the Civil Court. 10. The impugned order passed by the Chairman of the Town Committee on 15.12.2010 (Annexure-12), nowhere reflects that due notice was given to the affected party or hearing was afforded to him. In fact, the so called notice annexed to the counter affidavit of the private respondent is simply an assertion of the private respondents but the Chairman even in the reply to the legal notice (Annexure-15) do not mention of any such notice. Interestingly it is asserted that the Chairman did “……………….. not feel necessary to issue any notice ……………… to cancel the Holding No.263(ka)……….”. Interestingly it is asserted that the Chairman did “……………….. not feel necessary to issue any notice ……………… to cancel the Holding No.263(ka)……….”. In such circumstances, when the Chairman himself has taken the stand that notice was unnecessary and cancellation of holding can be made, without affording any opportunity, this Court is inclined to hold that notice was never served on the affected party before cancellation of the holding was ordered on 15.12.2010 by the Chairman. 11. While the reply of the Chairman (Annexure-3) to the RTI Application of the writ petitioner clearly reflects that “……………….. there is no judgment or order of the Hon’ble Court, …………………..” for cancellation of Holding, it may be unnecessary to seek support for the Chairman’s order on Court verdict. But since the predecessor of the private respondents had initiated an Eviction Case, it might be appropriate to consider whether that case i.e. T.S. No.42/1987 relate to the property purchased by the petitioner, through the Regd. Sale Deed No.923, dated 2.6.1999 (Annexure-1). In paragraph-4 of the counter affidavit, the private respondents have given details of the eviction suit and also the shop rooms involved in that case and it is the specific averments of the respondents that the property purchased by the writ petitioner from the two sons of Makhan Paul in 1999, relate to different Patta under different Dag Numbers and those have no connection with the suit land of the T.S. No.42/1987. Hence no steps could thus be taken for the 4 Lechas land, covered by Dag No.551 of Periodic Patta No.337, as it is clearly averred by the private respondents themselves that, the property involved in the Eviction Suit are unrelated to the property, purchased by the petitioner. 12. In the above circumstances, I am of the considered opinion that the cancellation of the Holding No.263(ka), ordered by the Chairman on 15.12.2010 (Annexure-12) is legally unsustainable and the same is accordingly quashed. Thus the Holding No.263(ka) is ordered to be restored to the petitioner, in terms of the earlier order passed by the Chairman on 20.8.2002 (Annexure-10). But if any cancellation of the holding is found necessary, the same should be done only through due process, after affording hearing to all concerned. It is ordered accordingly. 13. With the above order, the case stands disposed of in the manner indicated. No costs.