Gauhati High Court
On The Death Of Haladhar Deka @ Dr. ... vs The State Of Assam And 7 Ors on 10 February, 2025
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GAHC010123162019
2025:GAU-AS:1360
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/160/2019
1.ON THE DEATH OF HALADHAR DEKA @ DR. HALADHAR DEKA, HIS
LEGAL HEIRS SMTI. CHANDRA PRABHA DEKA AND 2
W/O- LATE HALADHAR DEKA, R/O- RAJGARH ROAD,
BYE LANE NO. 10, GUWAHATI- 781003, DIST.- KAMRUP(M), ASSAM.
2: ON THE DEATH OF DEEPANKAR DEKA HIS LEGAL HEIRS
S/O- LATE HALADHAR DEKA,
R/O- RAJGARH ROAD BYE LANE NO. 10
GUWAHATI- 781003 DIST.- KAMRUP(M) ASSAM.
2.1: SMTI. MITALI DEKA CHOUDHURY
RAJGARH ROAD BYE LANE NO.10
GUWAHATI-781003 DISTRICT-KAMRUP(M) ASSAM.
2.2: SRI KAUSHTABH PRATIM DEKA
RAJGARH ROAD BYE LANE NO.10
GUWAHATI-781003 DISTRICT- KAMRUP(M) ASSAM.
2.3: SMTI. MEGHNA DEKA
RAJGARH ROAD BYE LANE NO.10 GUWAHATI-781003
DISTRICT- KAMRUP(M) ASSAM.
3: SRI SASHANKA PRATIM DEKA
S/O- LATE HALADHAR DEKA, R/O- RAJGARH ROAD BYE LANE NO. 10
GUWAHATI- 781003 DIST.- KAMRUP(M) ASSAM
VERSUS
1.THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM, REVENUE DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM
REVENUE (SETTLEMENT) DEPARTMENT DISPUR GUWAHATI-6.
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3:THE DEPUTY COMMISSIONER, KAMRUP (METROPOLITAN) DISTRICT
PANBAZAR GUWAHATI-1.
4:THE DEPUTY COMMISSIONER, KAMRUP(R) AMINGAON NORTH
GUWAHATI.
5:THE CIRCLE OFFICER,
NORTH GUWAHATI REVENUE CIRCLE AMINGAON.
6:THE OFFICER-IN-CHARGE
KAMALPUR POLICE STATION AMINGAON NORTH GUWAHATI.
7:THE ASSAM BOARD OF REVENUE
PANBAZAR GUWAHATI-1 REP. BY ITS CHAIRMAN.
8:ON THE DEATH OF PHUKAN BORO, HIS LEGAL HEIRS
8.1:SRI PRABIN CHANDRA BORO
R/O- SILAMAHEKHAITI BAMUNIGAON
P.O. AMINGAON P.S. JALUKBARI KAMRUP(R) ASSAM.
8.2:SMT. PADUMI BORO
R/O- SILAMAHEKHAITI BAMUNIGAON
P.O. AMINGAON P.S. JALUKBARI KAMRUP(R) ASSAM.
8.3:SMT. NIRU BORO
R/O- SILAMAHEKHAITI BAMUNIGAON, P.O. AMINGAON
P.S. JALUKBARI KAMRUP(R) ASSAM.
8.4:SMT. RINA BORO
R/O- SILAMAHEKHAITI BAMUNIGAON
P.O. AMINGAON P.S. JALUKBARI KAMRUP(R) ASSAM
For the Appellant(s) : Mr. J. Deka, Advocate.
Mr. T.K. Bhuyan, Advocate.
For the Respondent(s) : Ms. N. Bordoloi, Standing Counsel, Revenue Department.
: Mr. N. Das, Govt. Advocate, Assam.
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
10.02.2025
(Vijay Bishnoi, CJ)
This writ appeal is preferred by the appellants being aggrieved with the order
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dated 29.04.2019 passed by the learned Single Judge in WP(C) No.6429/2011.
Before the learned Single Judge, the petitioners have challenged the validity of
the order dated 07.02.2011 passed by the Assam Board of Revenue in Case
No.12RA(K)(RVW)/2008 whereby it has allowed the review petition filed by the private
respondent [Late Phukan Boro] and has reviewed its order dated 18.06.2008 and
restored the order dated 14.07.2005 passed by the Deputy Commissioner, Kamrup
(Rural) in Case No.KRS.367/2003.
The learned Single Judge, after taking into consideration the submissions made
by the learned counsel for the parties, dismissed the aforesaid writ petition.
The relevant portions of the impugned order dated 29.04.2019 are reproduced
hereunder:
"26. By letter dated 10.03.1989, Deputy Secretary to the Government of
Assam, Revenue (Settlement) Department had informed Deputy Commissioner,
Kamrup that the Governor of Assam was pleased to order settlement of a plot of
Government land measuring 1 bigha covered by part of Dag No.159 of village
Sila Mahekhaiti under Sila Sinduri Ghopa Mouza with petitioner No.1 in
exchange of land measuring 1 katha 10 lechas covered by old Dag No.585 of
old Periodic Patta No.870 of Natun Town Sarania. Deputy Commissioner was
requested to handover possession of the settled land with petitioner No.1
leaving aside the land for National Highway and passage for National
Highway. Materials placed on record disclose that thereafter possession of the
said 1 bigha of land was handed over to petitioner No.1 on 07.04.1989.
27. There is no other document on record to show that any additional land
beyond 1 bigha was settled or proposed to be settled with petitioner No.1.
28. In Case No.KRS 367/2003, Deputy Commissioner, Kamrup was
considering the prayer of late Phukan Boro for restoration of annual patta in his
name in respect of land measuring 2 bighas 1 katha of Dag No.159 and land
measuring 1 katha 7 lechas of Dag No.160. Deputy Commissioner referred to
Regulation 90 and observed that the annulled land could be re-settled with the
defaulting pattadar subject to payment of arrear revenue and cost of the
proceeding. Accordingly, it was ordered that the aforesaid land be restored to
the original patta subject to payment of arrear revenue.
29. This order of the Deputy Commissioner dated 14.07.2005 was assailed
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by petitioner No.1 in appeal before the Board which was allowed vide judgment
and order dated18.06.2008. Relevant portion of the judgment and order dated
18.06.2008 is extracted hereunder:-
"15. According to Section 90(2) note 6(i), no land settlement of which has been
annulled on account of arrears will be resettled with the defaulter or with any member
of a joint family to which the defaulter belongs with (without) the special sanction of the
Deputy Commissioner or Sub-Divisional Officer. Such sanction will not be given unless
and until arrears on account of which the settlement has been annulled have been paid
with all cost of proceeding taken for their realization. In the impugned order of the
Deputy Commissioner, there is no mention that the defaulters had paid all the arrear on
account of which the settlement was annulled along with all cost of proceedings. Deputy
Commissioner restored the land subject to the payment of all arrear and cost of
proceeding. Deputy Commissioner's impugned order is not according to the prescribed
law and the same is not permissible. Therefore, as the Deputy Commissioner, Kamrup's
order is not in accordance with the relevant law, the same is not maintainable and is
liable to be set aside, which I do."
30. From the above, it is seen that Board did not find fault with the Deputy
Commissioner in acting on Regulation 90. All that the Board held was that
Deputy Commissioner had not mentioned that the defaulters had paid the land
revenue arrears on account of which patta was annulled. It was further held
that Deputy Commissioner had restored the land subject to payment of all
arrears and costs of proceeding which was not according to the prescribed law
and it was not permissible. Accordingly, it was held that the order of the Deputy
Commissioner was not maintainable and was set aside.
31. Therefore, both the Deputy Commissioner and the Board had proceeded
on the basis that it was a case under Regulation 90. This finding of both the
revenue authorities is a finding of fact.
32. At this stage, Regulation 90 of the Assam Land and Revenue Regulations,
1886 may be adverted to. Regulation 90 deals with annulment of settlement. As
per Regulation 90, in case of non-payment of land revenue and if the process
provided for recovery of arrears of land revenue is not sufficient, Deputy
Commissioner may by proclamation published in the prescribed manner annul
existing settlement of the estate and relinquish claim of the Government to the
arrear of land revenue. As per the proviso, if the arrear is in respect of an estate
in which the settlement holder has a permanent, heritable and transferable
right to use and occupancy, Deputy Commissioner shall not unless directed by
the State Government annul settlement without sanction of the State
Government. However, as per note 6(i), no land, settlement of which has been
annulled on account of arrears will be resettled with the defaulter or with any
member of a joint family to which the defaulter belongs without special sanction
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of the Deputy Commissioner or Sub-Divisional Officer. Such sanction will not be
given unless and until arrears on account of which settlement has been
annulled have been first paid with all costs of proceedings taken for their
realization.
33. Pausing here for a moment, it is seen that both Deputy Commissioner as
the authority of the first instance and the Board as the final revenue authority
had accepted the position that it is a case covered by Regulation 90 meaning
thereby that annulment was on account of non-payment of land revenue,
recovery process of which was not sufficient. Therefore, annulment of annual
patta was resorted to by the Deputy Commissioner.
34. While Deputy Commissioner had set aside annulment subject to payment
of arrears and cost by the respondents, Board in appeal held that without first
paying arrears and cost, such order cancelling annulment could not have been
passed by the Deputy Commissioner. This is the only point of difference
between the Deputy Commissioner and the Board; difference was not whether
Regulation 90 was applicable or not; difference was regarding the manner of
applicability of Regulation 90.
35. At this stage, it may also be relevant to note that though respondent No.4
in his affidavit has stated that land in question was made Government land for
transfer of possession, no corresponding order to that effect has been annexed
to the affidavit of respondent No.4. But crucially respondent No.4 has taken the
stand that the land settled with petitioner No.1, i.e., 1 bigha and the annual
patta land of the respondents which was annulled and thereafter restored are
two different plots of land unconnected with each other.
36. In review, Board held that review petitioner had made payment of all
arrears and costs of the proceeding immediately after Deputy Commissioner
had passed the order dated 14.07.2005. Therefore, it was held that appellate
judgment and order dated 18.06.2008 suffered from an error apparent on the
face of the record. It was further held that Deputy Commissioner had clearly
ordered that restoration of the annual patta would be done only after payment
was made which was in accordance with note 6(i) of Regulation 90. Therefore,
appellate judgment was set aside. While dismissing the appeal, order of the
Deputy Commissioner dated 14.07.2005 was upheld.
37. As noted above, when the Board passed the appellate order on
18.06.2008, petitioner No.1 accepted the same. In other words, basis on which
the Board had set aside the order of the Deputy Commissioner was accepted by
petitioner No.1. If that is the position, then challenge to the setting aside of the
said order on review on the ground that Board had erred in not properly
appreciating the order of the Deputy Commissioner in the light of Regulation 90
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cannot be sustained. That apart, there is no dispute that 1 bigha of land settled
with petitioner No.1 in lieu of 1 katha 10 lechas of land acquired is in
occupation of petitioner No.1 and his legal heirs. There is no claim by the
respondents over the said land. Claim of respondents is to the lands measuring
2 bighas 1 katha and 1 katha 7 lechas which as per the revenue authorities are
distinct and separate from 1 bigha of land settled with petitioner No.1. If the
lands are distinct and separate as above, neither petitioner No.1 nor his legal
heirs can be said to be persons aggrieved in law to question cancellation of
annulment of annual patta in favour of predecessor-in-interest of the
respondents. Moreover, petitioners have not pleaded that there was difficulty in
demarcation of 1 bigha of land settled with petitioner No.1.
38. In such circumstances, Court is of the view that claim of the petitioners
beyond 1 bigha of land settled with petitioner No.1 is legally unsustainable.
Writ petition so filed is misconceived and is accordingly dismissed."
Having heard the learned counsel appearing for the appellants and after taking
into consideration the fact that only 1 bigha of land falling under Dag No.159 was
settled in favour of the original petitioner and the land restored in favour of the private
respondent is distinct and separate from the land which was settled in favour of the
original petitioner, we do not find any illegality in the impugned order dated
29.04.2019 passed by the learned Single Judge. Hence, no case for interference is
made out.
The writ appeal is, therefore, dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
