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2018 DIGILAW 40 (GAU)

Md. Abdus Shukur v. State of Assam

2018-01-09

SUMAN SHYAM

body2018
JUDGMENT : Heard Mr. N. Dhar, learned counsel for the petitioners. I have also heard Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam, appearing for respondent nos. 1 to 4 and 7 as well as Mr. D.P. Borah, learned counsel representing respondent no. 5. The name of the respondent no. 6 has been struck of from the record by the order dated 05/03/2013 passed by this Court in MC No. 203/2013. 2. The judgment and order dated 07/07/2011 passed by the Chairman of the Assam Board of Revenue, reviewing the earlier judgment and order dated 03/10/2008 passed by the learned Member of the Board of Revenue in case No. 34RA(KJ)/05has been put to challenge in this writ petition. 3. The brief facts of the case, as available from the materials on record, is that land measuring 2409 acres originally belonged to M/s. Bharat Samity Ltd., which was impleaded as respondent no. 6 in the present proceeding. Out of the 2409 acres of land situated in the district of Cachar (at present Karimganj district), Assam, 400 acres of land were requisitioned by the Government for rehabilitation of refugees coming from East Pakistan (now Bangladesh). Remaining 2009 acres of land was apparently sold by M/s. Bharat Samity Ltd. to one company, viz. Sriram Tea Company which was later transferred by Sriram Company to the respondent no. 5 by way of sale. The 400 acres of land requisitioned by the Government was subsequently de-requisitioned and the said plot of land was purchased by the writ petitioners by means of registered deeds of sale. Out of the 400 acress (1200 Bighas approx), the petitioners could retain possession only over about 968 bighas of land and accordingly, on the basis of an application made by the petitioners, the Settlement Officer had granted mutation over the land under the possession of the petitioners vide order dated 30/12/2004. The land in question appears to be covered by old Dag No. 70 and new Dag No. 90. The order dated 30/12/2004 passed by the Settlement Officer was taken in an appeal by the respondent no. 5 before the Assam Board of Revenue in case No. 34RA(KJ)/2005 and the learned Member Smt. B. Borthakur had dismissed the appeal preferred by the respondent no. 5 by the judgment and order dated 03/10/2008, thereby upholding the order of mutation granted by the Settlement Officer in favour of the present petitioners. 5 before the Assam Board of Revenue in case No. 34RA(KJ)/2005 and the learned Member Smt. B. Borthakur had dismissed the appeal preferred by the respondent no. 5 by the judgment and order dated 03/10/2008, thereby upholding the order of mutation granted by the Settlement Officer in favour of the present petitioners. 4. Thereafter, the respondent no. 5 had preferred a review application, numbered and registered as Appeal case No. RA(KJ)(RVW)/09. The review petition was taken up for disposal by the Chairman of the Revenue Board, viz. Shri H.M. Cairae, IAS and disposed of by judgment and order dated 07/07/2011 allowing the review as well as the appeal preferred by the respondent no. 5 by reviewing the earlier decision with a further direction upon the Deputy Commissioner to take steps to register a criminal case against M/s. Bharat Samity Ltd. and all its Directors for sale of land, which according to the learned Chairman, was not permissible under the law. 5. The impugned judgment and order dated 07/07/2011 has been assailed primarily on 3 (three) grounds. Firstly, that Smt. B. Borthakur, the learned Member who had passed the original judgment and order dated 03/10/2008 was still holding office at the time when the review petition was decided and as such, in view of the mandate of order 47 Rule 5 of the PC, the review application ought to have been heard by the same member and the same could not have been taken up and disposed of by the Chairman of the Revenue Board, viz. Shri H.N. Cairae. Secondly, in the garb of exercising review jurisdiction, the learned Chairman has entered into the merit of the case and on a rehearing of the entire matter, had recorded fresh finding of facts and law which are prejudicial to the interest of the petitioners. Thirdly, no ground within the meaning of Order 47 Rule 1 of the CPC was available permitting the learned Chairman of the Board to exercise the power of review. 6. Mr. D.P. Borah, learned counsel appearing for respondent no. 5 has contended that the learned Member Smt. B. Borthakur who had passed the original order had retired from service, as a result of which the matter had to be taken up for disposal by the Chairman of the Board. 6. Mr. D.P. Borah, learned counsel appearing for respondent no. 5 has contended that the learned Member Smt. B. Borthakur who had passed the original order had retired from service, as a result of which the matter had to be taken up for disposal by the Chairman of the Board. He has, however, fairly submitted that the learned Chairman had exceeded his jurisdiction in recording fresh finding of facts and deciding issues on merit touching upon the question of title of the parties and also issuing directions which were way beyond the scope and ambit of the original proceeding. 7. I have considered the submissions made by the learned counsel for the parties and have perused the materials available on record. 8. Mr. Dhar has produced a copy of the cause list of the Assam Board of Revenue dated 01/09/2011 to show that Smt. B. Borthakur was functioning as a Member of the Assam Board of Revenue on the date on which the impugned judgment and order dated 07/07/2011 was delivered. 9. From the above, it is apparent that the learned Member who had passed the original judgment and order dated 03/10/2008was in office on the date on which the Chairman of the Board had passed the judgment and order dated 07/07/2011 in the review application. 10. Order 47 Rule 5 of the CPC categorically mandates that an application seeking review of a decree or order made by a Judge, shall be heard by the same Judge and by no other judges, if the concerned judge is available in office. 11. The proceedings before the Assam Board of Revenue being of civil nature, the provisions of Code of Civil Procedure, in so far as the procedural aspect is concerned, would be applicable in spirit. If that be so, in view of the provisions of Order 47 Rule 5 CPC, the learned Chairman of the Board Shri H.M. Cairae, in the opinion of this Court, has committed manifest illegality by taking up the review application himself when the learned Member who had passed the original judgment was available in office for deciding the same. 12. The plea of the respondent no. 5/review applicant is that the 400 acres of land covered by Dag No. 70 forms part of the land which was sold by M/s. Bharat Samity Ltd. to Sriram Tea Company Ltd. and was subsequently purchased by the respondent no. 12. The plea of the respondent no. 5/review applicant is that the 400 acres of land covered by Dag No. 70 forms part of the land which was sold by M/s. Bharat Samity Ltd. to Sriram Tea Company Ltd. and was subsequently purchased by the respondent no. 5 from Sriram Tea Company Ltd. Asserting its right as purchaser, the respondent no. 5 had raised objection to the order of mutation granted in favour of the petitioners in respect of the 400 acres of land. 13. Whether the purchase of the plot of land by the petitioners by means of registered deed of sale is/was valid in the eye of law or not, is a matter that would fall purely within the domain of enquiry by the Civil Court and the said jurisdiction cannot be usurped by the Assam Board of Revenue in exercise of appellate jurisdiction conferred under Section 147 read with 151 of the under the Assam Land and Revenue Regulation 1886. It is trite law that all questions relating to title over immovable property must be left to be decided by the Civil Court unless there is ouster of jurisdiction of such Court due to any specific statutory provision. 14. An order of mutation is granted on the basis of possession of the parties over the plot of land and the same does not confer any right, title and interest over the land. If that be so, the question of issuing a declaration touching upon the right, title and interest of a party in a review proceeding under section 147 of the Regulation would be wholly unwarranted and hence, cannot stand the scrutiny of law. 15. In the present case, from a bare reading of the judgment and order dated 07/07/2011, I find that the learned Chairman of the Revenue Board had recorded finding that M/s. Bharat Samity Ltd. was not entitled to sell the land in question to M/s. Sriram Tea Company Ltd. The said findings had been recorded on the basis of a re-hearing of the appeal, which, in the opinion of this Court, is beyond the scope of review jurisdiction available to a Judicial Forum. 16 There is not even a whisper in the order about any error apparent in the judgment and order dated 03/10/2008 nor has any sufficient cause been cited for exercising the power of review. 16 There is not even a whisper in the order about any error apparent in the judgment and order dated 03/10/2008 nor has any sufficient cause been cited for exercising the power of review. Not only that, having allowed the review application and upon setting aside the order of mutation, the learned Revenue Board had issued a direction upon the Deputy Commissioner for instituting a criminal proceeding against the original owner of the land in respect of which, the mutation had been granted in favour of the petitioners on the basis of right of purchase. In my considered opinion, the learned Chairman had travelled way beyond his jurisdiction in passing such a direction in a review application. 17. Having regard to the tenor of the impugned order, I am of the opinion that the learned Chairman had exercised the power of appellate jurisdiction against the judgment and order passed by his colleague in the bench which was not permissible under the Assam Land Revenue Regulations, 1886. 18. For the reasons stated hereinabove, I am of the view that the petitioners have succeeded in maiing out a good case meriting interference with the impugned judgment and order dated 07/07/2018. In the result, the writ petition must succeed and is hereby allowed by setting aside the judgment and order dated 07/07/2011. 19. Notwithstanding this judgment and order, it would remain open to the parties to agitate their grievance before the Civil Court, if so advised, subject to the provision of law of Limitation, as may be applicable in the matter. Writ petition stands disposed of accordingly. There will be no order as to costs.