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2017 DIGILAW 781 (GAU)

Om Prakash Modi v. State of Assam

2017-06-13

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Mr. A.D. Choudhury, learned counsel for the petitioner, Mr. K. Agarwalla, learned senior counsel appearing for the respondent No.5 and Ms. M. Barman, learned State counsel appearing for the respondent Nos. 1 to 4. 2. The respondent No.5 Modinagar Tea Company Ltd was allotted certain land by the Government for special tea cultivation and they are holding the said land for more than 50 years. The petitioner makes a statement in the writ petition that although the said land had been allotted for the purpose of special tea cultivation, but no such tea cultivation has been carried out and most of the land of the garden had been acquired by the Government for the Oil and Natural Gas Corporation. 3. Be that as it may, one Lekh Ram Agarwalla is said to have been in possession of 1B-3K of the aforesaid land under Dag No.73 of Chah Myadi Patta No.1 of Geleki Bagan under Athkhel Mouza of Nazira Revenue Circle in the district of Sivasagar. It is stated that the said Lekh Ram Agarwalla claims his right as a ryot under the respondent No.5. 4. Subsequently, the said Lekh Ram Agarwalla sold the aforesaid land along with the permanent structure standing thereon to the mother of the petitioner vide registered Sale Deed No.2731 dated 03.11.1971. It is also stated that the respondent No.5 Company had also received its share of the sale consideration from the mother of the petitioner. 5. In the aforesaid circumstance, there is an order by the Deputy Commissioner, Sivasagar, by which mutation was granted in favour of the mother of the writ petitioner, namely, Smti Kamala Devi Modi. Prior to it, it is stated that a Katcha Khatian was also issued in favour of the mother of the petitioner in the year 1975. On the death of the mother of the petitioner on 25.08.1994, the present petitioner by virtue of being the legal heir, was issued a Land Holding Certificate dated 20.11.1995 by the Circle Officer, Nazira. 6. At that stage, the petitioner preferred an application before the Circle Officer, Nazira for a mutation in his favour in respect of the said 1B-3K of land. Consequent upon such application, the order dated 08.08.2003 was passed by the Additional Deputy Commissioner, by which mutation was granted in favour of the writ petitioner. 7. 6. At that stage, the petitioner preferred an application before the Circle Officer, Nazira for a mutation in his favour in respect of the said 1B-3K of land. Consequent upon such application, the order dated 08.08.2003 was passed by the Additional Deputy Commissioner, by which mutation was granted in favour of the writ petitioner. 7. The said order dated 08.08.2003 was assailed by the respondent No.5 before the Assam Board of Revenue, which was registered as Case No.122(RA)(S)/2003. One of the ground on which the said appeal was preferred by the respondent No.5 was that the Additional Deputy Commissioner before passing the order of mutation dated 08.08.2003 had not afforded the respondent No.5 with any opportunity of hearing. 8. Although the learned Assam Board of Revenue in the said appeal goes on to decide the respective rights of the parties as regards the validity and correctness of the order of mutation dated 08.08.2003, but the core question as to whether the respondent No.5 was given an opportunity of hearing by the Additional Deputy Commissioner before the order of mutation was passed had not been considered by the learned Board. 9. It is noticed that the learned Assam Board of Revenue went into the question that a Katcha Khatian was issued in the year 1975 in the name of the mother of the petitioner, but u/s 2 of the Assam Temporarily Settled Areas (Tenancy) Act, 1971, no tenancy can be allowed in respect of the land of special cultivation. The learned Assam Board of Revenue further goes into the question that although Lekh Ram Agarwalla was the absolute and exclusive owner and possessor of the disputed land on the strength of a Sale Deed No.2731 dated 03.11.1971, but Lekh Ram Agarwalla was neither a recorded pattadar of the land nor an authorized representative of the respondent No.5 Company and as such he did not have any authority to transfer the disputed land to the mother of the petitioner. 10. The learned Assam Board of Revenue also goes into the question that the order dated 08.08.2003 was passed by the Deputy Commissioner without examining the specific provisions of the Assam Temporarily Settled Areas (Tenancy) Act, 1971 and the other relevant laws applicable in case of transfer of land. Accordingly, by the judgment and order dated 24.01.2011, the order of mutation dated 08.08.2003 was set aside. 11. Accordingly, by the judgment and order dated 24.01.2011, the order of mutation dated 08.08.2003 was set aside. 11. In order to sustain the aforesaid view expressed by the learned Assam Board of Revenue, a factual determination as to whether the aforesaid Lekh Ram Agarwalla was a ryot under the respondent No.5 Company would necessarily have to be made. Only upon a definite finding of the said question of fact, the subsequent applicability of the Assam Temporarily Settled Areas (Tenancy) Act, 1971 can be determined. In the absence of such determination, this Court is of the view that for the present, the aforesaid findings of the learned Assam Board of Revenue be not held to be applicable and binding in respect of either of the parties. 12. As the matter requires a factual determination as to whether the aforesaid Lekh Ram Agarwalla was a ryot or not, it is deemed appropriate that the matter be remanded back to the Deputy Commissioner for its appropriate adjudication. The aforesaid view to remand the matter back to the Deputy Commissioner would also be consistent in view of the fact that while issuing the order of mutation dated 08.08.2003, the respondent No.5 Company was not issued any notice and neither they were given an opportunity of hearing. 13. In this respect, reference is to be made to the provisions of Section 52 of the Assam Land and Revenue Regulation, 1886, which provides for the procedure to be followed on an application for registration. 14. Section 52 clearly provides that on receiving an application u/s 50 or 51, the Deputy Commissioner shall, if he considers that there are sufficient ground for proceeding with the application, publish a notice requiring all persons, who desires to object to the registration of the name of the applicant to prefer a written statement of their objections and appear on the specific date as stated in the notice. The aforesaid provisions of Section 52 of the Assam Land and Revenue Regulation, 1886 is clearly a statutory requirement and makes it mandatory for the Deputy Commissioner to publish a notice inviting objections from all such persons, who may object to such registration. 15. In the instant case, it is found that before issuing the order dated 08.08.2003, no such notice was published and nor any opportunity was given to the respondent No.5 Company to raise its objection. 15. In the instant case, it is found that before issuing the order dated 08.08.2003, no such notice was published and nor any opportunity was given to the respondent No.5 Company to raise its objection. In view of both the reasons as aforesaid, this Court deems it appropriate that the matter be remanded back to the Deputy Commissioner for a fresh adjudication as to whether an order of mutation is required to be issued in favour of the petitioner and in doing so, and also as required u/s 52 of the Assam Land and Revenue Regulation, 1886, appropriate notices be issued to the respondent No.5 Company for preferring their objection to it. 16. It is also provided that while hearing the objection, if the Deputy Commissioner is of the view that a dispute exists between the parties, the matter may be referred for a formal enquiry in a Court as provided in Note-1 to Section 53A of the Assam Land and Revenue Regulation, 1886. In terms of the above, the writ petition stands closed.