Page No.# 1/8 vs The State Of Assam And 6 Ors
2021 Latest Caselaw 2110 Gua

                                                                   Page No.# 1/8

GAHC010128972018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP/80/2018

         ARUN CH. BARUAH AND ANR.
         S/O- LATE DAKHIN BARUAH, R/O- NATUN NIRMALI GAON, P.O- CR
         BUILDING, P.S- DIBRUGARH, DIST- DIBRUGARH, ASSAM, PIN- 786001

         2: KHAGESWAR GOGOI
          S/O- SRI CHENI RAM GOGOI
          R/O- GAZPURIA BANDGALI GAON
          P.S- MORAN
          DIST- DIBRUGARH
         ASSAM
          PIN- 78600

         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM, REVENUE
         DEPTT, DISPUR- 781006

         2:THE DEPUTY COMMISSIONER
          DIST- DIBRUGARH
          PIN- 786002

         3:THE ADDITIONAL DEPUTY COMMISSIONER(R)
          DIST- DIBRUGARH
          PIN- 786002

         5:SUBUDHMAN CHETRY @ NARAYAN CHETRY
          S/O- MANBAHADUR CHETRY
          R/O- GOJPURIA BONGALI GAON
          P.S- MORAN
          DIST- DIBRUGARH
         ASSAM
          PIN- 786002
                                                                                 Page No.# 2/8

             6:NAR BAHADUR CHETRY
              S/O- LATE DALBAHADUR CHETRY
              R/O- GOJPURIA BONGALI GAON
              P.S- MORAN
              DIST- DIBRUGARH
             ASSAM
              PIN- 786002

             7:TEZ BAHADUR CHETRY
              S/O- LATE DALBAHADUR CHETRY
              R/O- GOJPURIA BONGALI GAON
              P.S- MORAN
              DIST- DIBRUGARH
             ASSAM
              PIN- 78600


                                           BEFORE
                       HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

For the Petitioners         :     Shri N.N. Upadhyaya, Advocate.

For the Respondents         :      Shri P.S. Deka, Advocate

Shri P.P. Dutta, Advocate

Dates of Hearing : 09.09.2021.

Date of Judgment            :     09.09.2021.



                                JUDGEMENT & ORDER

1. Heard Shri N.N. Upadhyaya, learned counsel for the petitioners.

2. Also heard Shri P.S. Deka, learned Standing Counsel, Revenue Department, Assam for the respondent nos. 1, 2 & 3 whereas Shri P.P. Dutta, learned counsel has appeared for the respondent nos. 5, 6 & 7.

3. The name of respondent no. 4 was struck off earlier as per an order Page No.# 3/8

dated 03.09.2018 passed by this Court.

4. The petitioners in the instant case has put to challenge an order dated 14.05.2018 passed by the Addl. District Judge, Dibrugarh in Misc L.A. Case No. 02/2016. The said Misc Case was registered based upon a report submitted by the Addl. Deputy Commissioner (R) who is the competent authority for Land Acquisition under the National Highways Act, 1956 in the district of Dibrugarh.

5. Before coming to the issue which falls for a determination, the brief facts of the case are required to be stated.

6. A plot of land measuring approximately 4 katha 18 lechas covered by Dag No. 146 of Annual Patta No. 13 in village Gojpuria Bongali under Khowang Mouja in the District of Dibrugarh was acquired under the National Highways Act for the construction of a four lane National Highway No. 37 in Demow-Dibrugarh sections. The respondent nos. 5, 2, 7 including Shri Padmadhar Chetry (erstwhile respondent no. 4) were the recorded pattadars of the said land. While the process of grant of compensation was on, the present petitioners appeared before the competent authority by filing two petitions whereby they also claim compensation for acquisition.

7. Upon such petitions, reports were called for from the concerned Circle Officer, Moran, who accordingly submitted two reports both dated 08.08.2016.

8. It appears that 1 katha, 19 lechas of land was possessed by the petitioner no. 1 and 2 katha 19 lecha was possessed by the petitioner no. 2.

9. The report further revealed that the recorded Pattadars were not in possession of the aforesaid land.

10. Before the competent authority both the petitioners tried to justify their possession by producing certain land deeds of purchase whereafter the competent Page No.# 4/8

authority forwarded the matter for fair judgment before the learned Addl. District Judge, Dibrugarh as per provision of the Act. The learned Court below came to a finding that the sale deeds produced by the petitioners pertained to Miyadi Patta land, more specifically being Miyadi Patta No. 39 having Dag No. 146 and Dag No.

211. There was no document to substantiate purchase of any plot from the Annual Patta land.

11. The reports were also taken consideration of which reveals that the petitioners were not the recorded Pattadars of the land even though they were possessing the same.

12. In that view of the matter, the learned Court was of review that the petitioners can only claim zirat compensation for their occupation over the land whereas the recorded Pattadars and their legal heirs would be entitled to the compensation for the land in question.

13. Shri Upadhyay, the learned counsel for the petitioners has drawn the attention of this Court to the 3 nos. of sale deeds and has submitted that by virtue of this deeds the land covered by the Annual Patta were also transferred to the petitioners.

14. The learned counsel however submits that taking advantage of certain error appearing in the sale deed, the petitioners are being deprived of their legitimate entitlement of compensation for the land.

15. A specific reference has been made to the registered deed no. 2764 which mentions about Patta No. 39 with Dag No. 146 which according to him is an Annual Patta.

16. The learned counsel submits that Dag No. 146 could not be a part of Miyadi Patta No. 39 as it is a part of an Annual Patta and this fact has been ignored / Page No.# 5/8

overlooked by the learned Court below.

17. In support of his submission, reliance has been placed on a Judgment of this Court passed in the case of Usman Ali and Ors. vs. Pratap Ch. Bora reported in 2007 (2) GLT 503 wherein it has been laid down that when an Annual Patta holder purports to transfer his possessory rights in such a land for consideration, the transferee takes good title to the property subject only to the paramount title of the Government. It has further been explained that if the Government chooses, it may, at the expiry of the period of the Annual Patta refuse to grant an Annual Patta to the transferee.

18. Shri Upadhyay, the learned counsel submits that the possessory rights being transferred for consideration, the petitioners are entitled to full compensation even for the land.

19. Shri Deka, the learned Standing Counsel, Revenue however oppose the prayer of the petitioner. By referring to the affidavit filed on 19.02.2021 by the respondent no. 2 with which the jamabandi has been annexed, it is submitted that a plot of 4 katha 18 lecha out of the total land of 5 bigha 11 katha 12 lecha were converted into the Miyadi Patta land and out of this converted land, a portion has been transferred to the petitioner by the private respondents by the 3(three) registered sale deed.

20. The Departmental Counsel disputes that there has been any fraud or error in the sale deed and if at all there were any, there is no challenge made till date.

21. Shri P.P. Dutta , the learned counsel for the private respondents by endorsing the submission of Shri Deka, the learned Standing Counsel, Revenue further submits that the petitioner at this stage is not entitled to raise the issue of fraud or any error in the Sale Deeds as till date no such challenge has been made in any forum. Shri Dutta, the learned counsel submits that the 3(three) sale deeds Page No.# 6/8

in question by which land has been transferred to the petitioners are Miyadi Patta land which were earlier Annual Patta and converted to Miyadi Patta and apart from this, no other portions or plots of land were transferred to the petitioners.

22. Shri Dutta, the learned counsel further submits that by virtue of being in possession, the zirat compensation has already been paid to the petitioners and they are not entitled to anything more than that.

23. The rival submissions made by the respective parties have been duly considered. The materials before this Court have also been carefully examined.

24. Before directly going to the issue, this Court is of the view that the powers under Section 115 of the CPC are restrictive in nature. Such powers are conferred to the High Court to be exercised only under certain conditions namely:-

(i) Where the subordinates Courts appears to have exercised the jurisdiction not vested by law.

(ii) Where there is failure to exercise the jurisdiction so vested.

(iii) Where the jurisdiction has been exercised illegally or with material illegality.

25. Under the aforesaid guidelines, let us now examine the Order impugned in the present proceedings.

26. By the sale order dated 14.05.2018, the claim of the petitioners have been examined and the learned Addl. District Judge, Dibrugarh has come to a finding that the petitioners are only entitled to Zirat compensation whereas the private respondents who are recorded Pattadars would be entitled to the land compensation.Such findings have been arrived at after taking into consideration the reports dated 08.08.2016, called for from the concerned Circle Officer, Moran Revenue Circle and also by considering the documents before the Court.

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27. This Court does not find that there has been any failure of exercise of jurisdiction in passing the order dated 14.05.2018 or that the learned Addl. District Judge, Dibrugarh had no jurisdiction to pass the said order. Even on merits, the case projected by the petitioners does not appear to structured on firm grounds.

28. As explained by the Government affidavit, the land which were transferred to the petitioner by 3(three) sale deeds were originally part of Annual Patta land which were in the name of the private respondents and were subsequently converted in Miyadi Patta land and were transferred vide registered sale deeds.

29. The acquired land does not fall or cover any portion of the land which are part and parcel of the 3(three) registered sale deeds but part of the land which continue to be under the Annual Patta, the recorded Pattadars of which were the private respondents. On a spot verification when it was reported that the petitioners were in possession, the learned Court below came to a conclusion that the petitioners would be entitled to zirat compensation which accordingly has been made. This Court does not find any material irregularity or gross infirmity in the said order.

30. As regards the case law relied upon by the learned counsel for the petitioners, this Court is in humble agreement with the aforesaid law laid down in the case of Usman Ali (supra). However, there is no semblance of any evidence that any part of the Annual Patta land were transferred to the petitioners.

31. This Court also finds force in the argument made by the respondents that at this stage, the petitioners are not entitled to raise any issue of fraud or error in sale deeds, as till date, the sale have not been put to challenge before the appropriate forum.

32. Under the aforesaid facts & circumstances, this Court is of the view that the present petition is devoid of any merits and accordingly the same is dismissed.

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33. No order as to cost.

JUDGE

Comparing Assistant