Jalal Nagar Tea Estate Pvt. Ltd. and Another vs State of Assam and Others

Brijesh Kumar, C.J.—This writ appeal arises out of judgment dated 12.12.94 passed by the learned Single Judge in Civil Rule No. 675/90. By means of the aforesaid Civil Rule the Petitioner-Appellants had impugned the order passed by the State Government dated November 1, 1989 dismissing the application of the Petitioner Appellants made u/s 7(6) of the Land Ceiling Act, 1956.

We have heard Shri A.K. Goswami, learned Counsel appearing on behalf of the Appellants and Shri B.C. Das, learned Govt. Advocate for the State Respondents.

The facts in brief as may be necessary for the purpose of decision of this appeal are that the Petitioner Appellants are owners and holders of the Tea Estate. The Tea Estates were brought within the preview of Land Ceiling Act, 1956 with effect from 21.7.71. Accordingly, the Petitioner/Appellants submitted their statement/return in accordance with the provisions of the Assam Fixation on Land Holdings Act, 1956, hereinafter called ''the Act''. The case was registered as Land Ceiling Case No. 141/72-73. The Collector by order dated 18.3.76 declared certain area of land in excess. The Petitioner-Appellant, however, moved an application to the State Government to act under the provisions of Section 7(6)(a) of the Act Section 7(6)(a) of the Act as it stood then a reads as under:

7(6)(a) Without prejudice to any action under any other provisions of this Act, the State Government of its own motion, for ends of justice and/or for exceptional circumstances to be recorded in writing, for review of any orders including orders once passed by it, may call for any records relating to any final statement at any time and may pass such orders as it deems fit, after giving the person or persons concerned an opportunity of being heard.

According to the above quoted provision the State Government enjoys the power to review of its orders in its own motion to meet the ends of justice after calling for records relating to any final statement at any time, after providing a hearing to the person concerned. According to the averments made in the petition and not denied on behalf of the Respondent, State heard the Petitioner Appellant on 21.10.87. The hearing took place before one Shri B.L. Hazarika, Secretary in the Department of Revenue to the Govt. of Assam, Another fact which is not in dispute is that an order dated 1.11.89 passed by the Secretary to the Government in the Department rejecting application of the Appellant was communicated to the Petitioner Appellant along with covering letter dated 11.11.89 sent by the Sub-Divisional Officer. The order of rejection was passed by Shri D.K. Gangopadhyaya on 1.11.89.

Learned Counsel for the Appellant submits that the order passed by an officer other than who heard the Petitioner Appellant as vitiated and it is virtually in violation of the principles of natural justice. The next submission which has been made is that the State Government while rejecting the application was heavily influenced by the feet that the application was moved by the Petitioner after lapse of time and in the meantime the land was disposed of according to the provisions of the Act. Hence it was not possible to interfere in the matter after such a long time. It is then submitted that certain records of the Deputy Commissioner had also been taken into consideration by the State Government while disposing of the matter in respect of which the Petitioner Appellant had no knowledge.

The main claim of the Petitioner Appellant seems to be regarding exception of certain area of land, on account of land ancillary to tea cultivation, which is admissible under the provisions of the Act. It is submitted that the said submission has been cursorily dealt with and discussed by the State Govt. It has also been vehemently urged that no third party interest had been created due to delay and no settlement had taken place with any person as provided under Sections 16 and 17 of the Act. No such third party interest having been accrued, mere delay in filing the petition u/s 7(6)(a) of the Act would be no bar for consideration of the case of the Appellant.

We have perused the order passed by the learned Single Judge. The petition has been mistakenly treated to have been filed under Article 227 of the Constitution. That being the position it was considered with great circumspection. Whereas the petition was clearly filed under Article 226 of the Constitution and not Article 227. In this connection the learned Counsel for the Appellant has drawn our attention to the copy of the writ petition filed. It is not necessary to emphasise that the scope of scrutiny very much depend upon the provisions under which the matter is considered by the Court. Valid considerations may also differ while exercising different kind of jurisdiction. The learned Judge considering the whole matter under Article 227 of the Constitution observed that scope of the said provisions is quite narrow. There is force in the submission that this has caused prejudice to the Petitioner in the matter of proper consideration of his case.

Coming to the question about hearing given by the officer and the order having been passed by another officer, the learned Single Judge came to the conclusion that it was not necessary to correct such errors in exercise of jurisdiction under Article 227 of the Constitution of India and in that regard placed reliance on a decision reported in AIR 1984 SC 8 Md. Yunus v. Md Mustakin and Ors. It is further observed that no capital can be made out of this point by saying that hearing was done by a particular officer whereas the order was passed by some one else. In the counter affidavit it is not the case of the Respondents that the matter was heard and the order was prepared by the same officer. Had this position been asserted on facts by the State there could be some justification for the observation made by the learned Single Judge, but not otherwise. Hearing by one officer and passing of order by another officer remains uncontroverted and unexplained.

We have already seen Sub-section (6)(a) of Section 7 of the Act which envisages opportunity of hearing to the person concerned. The Petitioner-Appellant was given that opportunity of hearing by one officer who later seems to have been transferred or retired and the order was passed by another officer. If this would be allowed, the purpose of providing hearing in such matters would be completely frustrated. Hearing of arguments cannot be passed on to the successor in officer. The learned Counsel for the Appellant has placed reliance upon a decision reported in Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another, Corporation. The relevant observations made in para 31 of the decision are quoted below:

The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of arguments and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.

Merely the fact that the order was issued in the name of the Governor would not cure the defect which has vitiated the order as indicated above. A proper hearing by the officer making decision in the matter would be necessary.

The other ground on which the application of the Petitioner Appellant has been thrown out is that they had approached the State Government after long lapse of time. In this connection, it may be observed that Sub-section (6)(a) of Section 7 of the Act, as it then existed namely at the time of passing the order, the Collector could pass the order at any time, it provided no time limit. We may hasten to say that it does not mean that there would be no limit of time at all. It has to be within a reasonable time. In the present case according to the State Government the settlement have been made in the meantime with other persons. This fact has been vehemently denied on behalf of the Petitioner-Appellant. Even if one settlement which is alleged, it is not in accordance with Sections 16 and 17 of the Act. The averments which have been made in the counter affidavit are that the State Government had reserved some land for public purpose and its own use. We are afraid it may not be permissible under Sections 16 and 17 of the Act. In case the State needed some land for its own purpose or some public purpose it would always be open to it to acquire the land for the same but the land which has been declared surplus under the provisions of the Land Ceiling Act, 1956 would only be distributed and settled in accordance with the provisions of the Act and not otherwise. We also find there is one intervenor, who has also been impleaded as Respondent No. 4 in this application. It is ''Srimanta Sankardev Sevashram'' who claims to have been given 50 Bighas. It is a matter to be examined as to how far such settlement would be covered by Sections 16 and 17 of the Act. On behalf of the State Government no document nor any name of any person has been indicated in whose favour the settlement had taken place if at all. We, however, would not like to go deep into this matter it is appropriately to be gone into by the authority concerned. Therefore, in our view, if no third party interest had accrued in favour of any person in accordance with Sections 16 and 17 of the Act between the period the land was declared surplus and the application was moved u/s 7(6)(a) of the Act, it would have been more conducive for the purpose as envisaged under Sub-section (6)(a) of Section 7 that the application was not thrown out on the ground of long lapse of time. It may also be indicated that by means of subsequent amendment which came into effect on 18.11.84 this power of revision/review under Sub-section (6)(a) of Section 7 would be invoked by the Government within 3 years or at the instance of a party within 90 days. Such a restriction was not there prior to the above noted date. It further strengthens the submission made on behalf of the Appellant that it was not proper to throw out the application on the ground that it was made after a long lapse of time.

We have already observed that under some mis-conception the petition of the Petitioner has been considered as one preferred under Article 227 of the Constitution. In the facts and circumstances, in our view it is a fit case for sending the matter back to the Government for its proper re-consideration in accordance with law i.e. the writ Petitioner-Appellant may be heard by a competent officer who may also take a decision in the matter. The State may also provide hearing to the Respondent No. 4.

In view of the discussion held above, we allow the appeal and set aside the order passed by the learned Single Judge with the direction to the State Government to deal with the matter in the light of the observations and directions given in the judgment There would, however, be no order as to cost.