Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1514 (GAU)

MAYNA BEGAM MOZUMDER v. STATE OF ASSAM

2018-10-08

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Ms. R. Choudhury, learned counsel for the petitioners. Also heard Mr. S.P. Choudhury, learned counsel for the respondent No.5 in WP(C) No.3579/2018 and respondent No.8 in WP(C) No.7759/2017. Also heard Mr. B.K. Purakayastha, learned counsel for the respondent Silchar Development Authority as well as Mr. S.R. Barua, learned counsel for the authorities of Govt. of Assam in the Urban Development Department. 2. The petitioner in WP(C) No.3579/2018 is the daughter of late Makbul Ali Mazumder, whereas, the petitioner in WP(C) No.7759/2017 are the two sons of late Makbul Ali Mazumder. Late Makbul Ali Mazumder had seven children comprising of one daughter and two sons from his first wife and two daughters and two sons from second wife. The petitioner in WP(C) No.3579/2018 is one of the daughters from second wife whereas, petitioner in WP(C) 7759/2017 are the two sons also from the second wife. The respondent No.5 in WP(C) No.3579/2018 is the daughter from the first wife and the respondent No.8 in WP(C) No.7759/2017 is the grandson through one of the sons of the first wife. Late Makbul Ali Mazumder was an occupancy tenant in respect of 12 katha 2 Chattaks pertaining to dag No.1 & 2 in 2nd R.S. Patta No.1 under Porgona Barakpur, Cachar. The land owner of the said land was one Binoy Bhusan Mazumder. 3. In WP(C) 3579/2018, a No Objection Certificate for construction granted by the Silchar Development Authority in favour of the respondent No.5 therein has been assailed. On the other hand, in WP(C) 7759/2017 a similar No Objection Certificate also granted by the Silchar Development Authority in favour of the writ petitioner therein, which was objected by the respondent No.8 before the appellate forum. The appellate forum had interfered with the No Objection Certificate on the premises that the writ petitioner did not have the title over the land in question. The order of the appellate forum is assailed in WP(C) 7759/2017. 4. In the two writ petitions, the claim of the petitioners are that they being the legal heirs of late Makbul Ali Mazumder and late Makbul Ali Mazumder having occupancy tenancy right over the land in question, they also have a right of inheritance for such occupancy tenancy. 5. The order of the appellate forum is assailed in WP(C) 7759/2017. 4. In the two writ petitions, the claim of the petitioners are that they being the legal heirs of late Makbul Ali Mazumder and late Makbul Ali Mazumder having occupancy tenancy right over the land in question, they also have a right of inheritance for such occupancy tenancy. 5. The respondent No.5 in WP(C) 3579/2018 on the other hand takes a stand that by a registered sale deed, she had purchased 5 kathas of land from the aforesaid 12 kathas 2 chataks and therefore, have a ownership right over the land so purchased. Similar is the stand of the respondent No.8 in WP(C) No.7759/2017 that by another registered sale deed, his father along with the two writ petitioners had purchased the balance amount of the land out of the 12 katha 2 chataks by another registered sale deed and therefore, they are owners of the land so purchased. 6. It is stated that the writ petitioner in WP(C) No.3579/2018 along with another daughter of late Makbul Ali Mazumder had already preferred title suit in the Court of Munsiff No.1, Silchar, Cachar being TS No.107/2018 for a declaration of their inheritance of occupancy tenancy right in respect of the 12 kathas 2 chaktaks of land. It is stated that the said title suit is still pending for adjudication. 7. In the aforesaid circumstance, validity of the two No Objection Certificate granted in favour of the respondent No.5 in WP(C) No.3579/2018 and the two writ petitioner in WP(C) No.7759/2017 is the subject matter of the two writ petitions. 8. The core ground of questioning the validity of the two No Objection Certificate granted by the Silchar Development Authority is that the other legal heirs of late Makbul Ali Mazumder having a right of inheritance of occupancy tenancy, a No Objection Certificate on the basis of ownership right through purchase claimed by some of the other children of late Makbul Ali Mazumder is unacceptable, inasmuch as, in view of the right of inheritance in respect of the occupancy tenancy, the respective sales executed through the two sale deeds by the land owner is unacceptable in law. 9. 9. In the above circumstance, without making any observation on the merit of the claim of the writ petitioners, a note is taken note of that the core issue raised is already an issue for a decision in the title suit between the parties. Accordingly, the issue as to whether some of the children of late Makbul Ali Mazumder has a right of inheritance of the occupancy right over the 12 kathas 2 chataks plot of land or as to whether the other children had acquired right, title and interest over the land by means of respective sale deeds, is left for a proper decision to be made by the concerned Court. But however as the No Objection Certificates were granted without such right being finally decided by the competent court, the Court is of the view that the two No Objection Certificate granted in favour of the respondent No.5 in WP(C) No.3579/2018 and the writ petitioner in WP(C) 7759/2017 are not maintainable for the present. Accordingly, the two No Objection Certificates dated 12.04.2018 in WP(C) No. 3579/2018 and 16.01.2017 in WP(C) 7759/2017 are set aside. 10. It is further provided that the respondent Silchar Development Authority shall take a fresh decision on the entitlement of the respondent No.5 in WP(C) No.3579/2018 and writ petitioner in WP(C) 7759/2017 for the respective No Objection Certificates depending upon the outcome of the civil suit between the parties i.e. as to whether the ownership right as per the respective registered sale deeds would prevail or a claim for right of inheritance of the occupancy right would prevail between the parties. 11. In terms of the above, writ petitions stands disposed of. Interim order passed earlier stands vacated.