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2017 DIGILAW 972 (GAU)

Epyayen Gohain v. Shyam Talkies Pvt. Ltd

2017-07-24

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER (ORAL) : Heard Mr. P.C Dey, learned counsel for the petitioner, Ms. M. Hazarika, learned senior counsel appearing for the respondent No.1 and Mr. G. Pegu, learned State Counsel appearing for the respondent Nos. 2 and 3. 2. Late Chouken Gohain, who was the father-in-law of the present writ petitioner, was the original owner and pattadar of certain land, which was covered by Dag No.247, 249 and 250 of periodic Patta No.33 of Margherita Town, Mouza Makum in the district of Tinsukia. It is stated that Dag No.247 originally contained 4B-4K-7L of land, Dag No.249 contained 3K-6L, whereas Dag No.250 contained 1B-15L of land. 3. In respect of the said land, late Chouken Gohain entered into a registered Sale Deed dated 29.05.1967 with a legal entity in the name of Shree Shyam Talkies Private Limited, Margherita. The Sale Deed pertains to 3K-19L of land out of 4B-4K of land in Dag No.247, the whole of 3K-6L of Dag No.249 and the whole of 1B-15L of Dag No.250. 4. Subsequent to such Sale Deed, the legal entity Shree Shyam Talkies Private Limited had constructed and operated a Cinema Hall in the name of Shyam Talkies over the aforesaid land. It is also stated that in the said legal entity namely Shyam Talkies Private Limited, late Chouken Gohain had 125 shares. 5. It is the case of the petitioner that late Chouken Gohain died leaving behind his two sons namely, Robin Gohain and Chouney Gohain, where Robin Gohain died in the year 1993 and Chouney Gohain died on 14.09.1984 leaving behind their respective legal heirs. It is stated that during the life time of late Robin Gohain and late Chouney Gohain, there was an amicable family settlement between the two brothers in respect of the properties left behind by their father. It is also stated that a land measuring 2B-1K-15L of Dag No.752 fell in the share of late Chouney Gohain, who had possessed the same till his death. It is further stated that the license for operating the Cinema Hall was initially in the name of late Chouken Gohain and thereafter on his death in the year 1970, the license was transferred in the name of late Chouney Gohain being the husband of the present petitioner. It is further stated that the license for operating the Cinema Hall was initially in the name of late Chouken Gohain and thereafter on his death in the year 1970, the license was transferred in the name of late Chouney Gohain being the husband of the present petitioner. After the death of her husband late Chouney Gohain, the petitioner was required to apply for a fresh license, which was granted in her favour on 08.06.1988 under No.DAC.17/85/166 by the then Deputy Commissioner, Dibrugarh, which had been subsequently renewed from time to time. 6. In paragraph-9 of the writ petition, it has been stated that during the last settlement operation in respect of the land covered by Dag No.752, wherein the Cinema Hall M/s Shyam Talkies was located, the name of M/s Shyam Talkies was recorded as the land holder. The petitioner was of the view that she being the proprietor of M/s Shyam Talkies, the said recording ought to have been in her name and not in the name of M/s Shyam Talkies. In the aforesaid circumstances, the petitioner is aggrieved by the act of the respondent No.1 in filing an application dated 02.11.1995 before the Additional Deputy Commissioner, Tinsukia, wherein, certain false allegations of manipulating the name of the pattadar in the land revenue record pertaining to Periodic Patta No.274 was made. In the said application it was the case of the respondent No.1 that the original land holder ought to have been M/s Shyam Talkies Private Limited, but the same was erased in some manner so as to make it appear that the land owner was Shyam Talkies and not Shyam Talkies Private Limited. 7. The Additional Deputy Commissioner while considering the aforesaid application by his order dated 09.11.1995, had directed that the words Private Limited be included after the name Syham Talkies and also for correction of the Sadar Jamabandi of Tinsukia district and Laat Jamabandi of Margherita Circle by the concerned Lat Mandal. 8. 7. The Additional Deputy Commissioner while considering the aforesaid application by his order dated 09.11.1995, had directed that the words Private Limited be included after the name Syham Talkies and also for correction of the Sadar Jamabandi of Tinsukia district and Laat Jamabandi of Margherita Circle by the concerned Lat Mandal. 8. The Additional Deputy Commissioner in his order dated 09.11.1995 had recorded as such:- “After examining the concerned Sadar Jamabandi along with the above said P.P No.274, it appears that the name of the pattadar apparently tempered partly by somebody in the Sadar Jamabandi here by erasing and defacing the words “Private Limited” and keeping the words M/S Shyam Talkies in the facts the said words “Private Ltd” so erased and defaced in the Sadar Jamabandi that the words still indistinctly legible. As per report of the C.O Margherita vide his letter No.MRC.8/95-96/600 dated 06.11.1995 it also appears that the entry of the name of the pattadar is similarly tempered by erasing and defacing as said above in the Hat Jamabandi kept with the Lat Mandal in the Margherita Circle Office also.” 9. The order further provided that when the matter was brought to the notice of the Deputy Commissioner, the Deputy Commissioner had directed that the defaced word Private Limited be restored in the Sadar Jamabandi as well as Laat Jamabandi of the concerned Dag and Patta number. The aforesaid order of the Additional Deputy Commissioner dated 09.11.1995 had been assailed by the present writ petitioner in an appeal before the learned Assam Board of Revenue being Appeal No.190 RA(Tin)/1995. In paragraph-2 of the said memo of appeal filed before the learned Assam Board of Revenue, the writ petitioner had taken a stand that during the last settlement operation, the land covered by Dag No.752 was included in Khiraj Patta No.274 and was recorded in the name of M/s Shyam Talkies though the same ought to have been recorded in the name of the petitioner, who is the proprietor of Shyam Talkies. In paragraph-3, it was the case of the writ petitioner that although the writ petitioner is the lawful owner and proprietor of the said M/s Shyam Talkies and possessor of the land in Dag No.752, she has no connection whatsoever with M/s Shyam Talkies Private Limited. In paragraph-3, it was the case of the writ petitioner that although the writ petitioner is the lawful owner and proprietor of the said M/s Shyam Talkies and possessor of the land in Dag No.752, she has no connection whatsoever with M/s Shyam Talkies Private Limited. In the appeal, it was her case that the respondent No.1 Company had at no point of time any right, title and interest upon the land covered by the Dag No.752. 10. The said appeal preferred by the petitioner was considered by the learned Assam Board of Revenue in its judgment dated 24.06.1997, wherein the order dated 09.11.1995 of the Additional Deputy Commissioner was interfered. Against the said judgment dated 24.06.1997 of the learned Assam Board of Revenue, the present respondent No.1 had preferred a writ petition being WP(C) No.4165/1997. By the judgment and order dated 28.09.2010 in the said writ petition, the judgment dated 24.06.1997 of the learned Assam Board of Revenue was set aside and accordingly remanded the matter back to the learned Assam Board of Revenue. 11. Upon being remanded back, a fresh consideration was given and the judgment and order dated 07.02.2011 was passed, which is being presently assailed in this present writ petition. 12. From the judgment and order of 07.02.2011 of the learned Assam Board of Revenue, it is noticed that the learned Board had taken into consideration a Sale Deed dated 29.05.1967 between late Chouken Gohain, who is the father-in-law of the present writ petitioner and the respondent No.1 Shree Shyam Talkies Private Limited, which indicates that about 6B-3K-8L of land of Dag No.247, 249 and 259 had been sold by late Chouken Gohain in favour of the respondent No.1 Shree Shyam Talkies Private Limited. In view of such sale, it cannot be stated with any certainty that the correction of land record affected by the Additional Deputy Commissioner by his order dated 09.11.1995 could have been wrong in view of the fact that the sale was affected in favour of the respondent No.1 M/s Shyam Talkies Private Limited. In view of such sale, it cannot be stated with any certainty that the correction of land record affected by the Additional Deputy Commissioner by his order dated 09.11.1995 could have been wrong in view of the fact that the sale was affected in favour of the respondent No.1 M/s Shyam Talkies Private Limited. In the event, the land sought to be corrected by the Additional Deputy Commissioner and the land sold by late Chouken Gohain in favour of the respondent No.1 are one and the same, it cannot prima-facie be said that the finding of the Additional Deputy Commissioner as regards erasing and manipulation of the expression Private Limited was in correct. However, as the Sale Deed pertains to Dag Nos. 247, 249 and 250 of the Periodic Patta No.33 of Margherita Town, none of the parties could produce any records to substantially show that the land involved in the Sale Deed and the land involved in Dag No.752 of Periodic Patta No.274 are one and the same. It also cannot be ruled out that difference in Dag Number and Patta Number had arisen because of subsequent renumbering of Dag and Patta number after the subsequent settlement operations. 13. Be that as it may, as no material has been produced, this Court is not in a position to give any specific finding to that effect. But, however, the Additional Deputy Commissioner had also arrived at a specific finding that the expression Private Limited had been erroneously erased from the record of the Sadar Jamabandi of Tinsukia and Laat Jamabandi of Margherita Town. Such finding is a subjective finding of the Additional Deputy Commissioner based upon actual verification and inspection of the concerned Jamabandi. It is also stated that even the erasing was not done in a proper manner and the expression Private Limited can still be read in the Jamabandi. From that point of view, no infirmity in the finding of the Additional Deputy Commissioner in its order dated 09.11.1995 can be found. It is also stated that even the erasing was not done in a proper manner and the expression Private Limited can still be read in the Jamabandi. From that point of view, no infirmity in the finding of the Additional Deputy Commissioner in its order dated 09.11.1995 can be found. It is also noticed that in the appeal filed before the learned Assam Board of Revenue, the present writ petitioner had mainly urged upon a point that the land record ought to have been corrected in the name of the petitioner being the proprietor of the land and it could not have been in the name of M/s Shyam Talkies or M/s Shyam Talkies Private Limited, as the case may be. 14. In the judgment on appeal of the learned Assam Board of Revenue dated 07.02.2011, it is noticed that the learned Board had proceeded on the premises as regards correctness of the order of the Additional Deputy Commissioner dated 09.11.1995 to the extent that there is a subjective satisfaction of the Additional Deputy Commissioner as regards erasing and manipulation of the Sadar Jamabandi and the Laat Jamabandi. No incorrectness can also be found in the procedure adopted by the learned Assam Board of Revenue for relying upon the Sale Deed dated 29.05.1967, which indicates that some land was sold by late Chouken Gohain in favour of the respondent No.1 Shree Shyam Talkies Private Limited and therefore, the expression Private Limited ought to have been a part of the entry in the land revenue record as regards the land in question. 15. In such view of the matter, no infirmity is noticed in the judgment and order of the learned Assam Board of Revenue dated 07.02.2011. But, however, this Court also takes into consideration that all along in the proceeding initiated by the writ petitioner before the learned Assam Board of Revenue, it was her specific stand that the land in question ought to have been recorded in the name of the writ petitioner being the proprietor of Shyam Talkies, the Cinema Hall and not in the name of Shyam Talkies or Shyam Talkies Private Limited, as the case may be. 16. 16. This Court is of the view that if the petitioner is seriously of the view that the land record have been erroneously manipulated by incorporating the name of Shyam Talkies or Shyam Talkies Private Limited instead of the name of the petitioner as the land holder, it is for the writ petitioner to submit an application before the appropriate authority for Redressal of the aforesaid grievance. 17. Dismissal of this writ petition shall not be a bar upon the writ petitioner to undertake such recourse, if so advised. In terms of the above, the writ petition stands closed.