Jitendralal Chatterjee vs The State

Ram Labhaya, J.—This appeal u/s 147-B, Assam Land & Revenue Regulation is directed against the order of the learned Deputy Commissioner, Goalpara, dated 25th April 1949, by which he disallowed an objection petition put in by the appellant and ordered encroachment made by him on Government land to be removed.

The land in question was admittedly surveyed in the name of the appellant in 1931 when he applied for its settlement. He paid premium at the rate of Rs. 600 per bigha. The area of the dag was 1 K. 8 L. The number assigned to it was 854. The record does not show if the land revenue payable was fixed. The appellant claims that the amount payable by him as land revenue was Rs. 6.15 per annum and that he paid the revenue for some years. The Deputy Commissioner in his report dated 27th April 1949, has denied the truth of the statement that land revenue was paid after the settlement. There is no proof of payment on the record.

After the survey of the land and payment of the premium at the rate mentioned above, a second order was passed by Khan Bahadur T. Ali, the then Deputy Commissioner, by which the premium payable was fixed at Rs. 3,600 per bigha and in pursuance of this order a notice was issued by the Assistant Settlement Officer on 5th November 1931 demanding premium at the rate of Rs. 35 per lecha for the dag in question. The further payment required to make up the deficiency was not made. The appellant contends that the notice demanding payment at the rate of Rs. 35 per lecha or Rs. 3500 per bigha was never served on him.

There is no proof of the service of the order on him. One joint notice was is3ued to several persons concerned. It cannot be ascertained from the signatures appearing on the notice as to whether appellant was served. The Deputy Commissioner has dismissed this plea as an easy one. He states that as a man of prudence the appellant should have asked for the patta of the land. The learned Government Advocate also finds himself unable on this record to contend that the notice demanding further payment was served on the petitioner.

Since 1931, the appellant has remained in possession. He did not obtain any patta for the land. It is admitted by his learned Counsel that the Commissioner''s confirmation for the settlement in appellant''s favour, though necessary, was not obtained. This would presumably be owing to the fact that the further payment that was ordered was not made. The fact, however, remains that the appellant cannot claim the status of a settlement holder. But his learned Counsel argues that the settlement proceedings in the case of the appellant ought to be treated as pending proceedings. His case was not disposed of by grant or refusal of a settlement. What happened was that the Deputy Commissioner originally promised settlement on payment of a premium at a certain rate. The land was surveyed. It was given a number. Payment at the rate ordered was made. The appellant came into possession with the consent and the knowledge of the revenue authorities as a person on whom the land was settled. He was not made aware of the order by which premium at enhanced rate was made payable. There was no refusal on his past to pay at this rate.

There is considerable force in the contention raised. The appellant is not a settlement-holder speaking strictly. He, however, was offered settlement on payment of a certain sum which he actually paid and got possession of the property. After that if any further sum became recoverable as premium, the revenue authorities had to recover it by serving a notice of demand. There is no proof that any such notice was served. There was thus no obligation on the part of the appellant to pay any more sum; nor can it be said that the appellant was guilty of any default. It may be that he was aware of the order as the notice issued was meant for quite a, large number of persons including the appellant. But that knowledge alone will not create an obligation, nor could refusal to pay the amount be inferred from it. There was nothing to prevent the revenue officers from ordering eviction if they believed that the notice of demand had been served and payment not made within the date stated therein. This course was not adopted. Appellant was in possession with their permission and if they did not do anything to recover the money or to obtain a refusal to pay at the enhanced rate, the consequence of their omission may not be visited on the appellant. He certainly his not been guilty of any fraudulent conduct and could well demand settlement even under Rule 15 by reason of his occupation of the land, on which he has built some structure also, for about 18 years. The petitioner evidently applied for settlement again on receiving notice to vacate and expressed his willingness to pay the sum to make up the deficiency of the premium calculated at the enhanced rate. Under Rule 66 the Deputy Commissioner has the authority to settle waste land in towns subject to the confirmation of the Provincial Government. He, therefore, may refuse settlement. But the question that arises in this case is whether he was justified in refusing settlement which had been offered by his predecessor in office some 18 years before even though the appellant was willing to make up the deficiency in the premium for the non-payment of which he cannot be blamed in law, The refusal would involve ignoring the order of the Deputy Commissioner who offered the settlement and accepted the premium at the original rate. Apart from this, it would not be equitable in the peculiar circumstances of this case to order eviction without offering the appellant an opportunity to have the settlement of the land on reasonable terms. His possession for all these years was not that of a trespasser If the settlement proceedings in his case have not been finalised and there has been no grant or refusal of settlement, the officers of Government cannot hold themselves entirely free from blame. If notice of eviction had been served on him when payment was not made within the date fixed by the notice issued in November 1931, the Government would either have received the money it demanded or the appellant would then have boon evicted. The appellant has not by any conduct on his part prevented the officers of the Government from taking necessary action. In these circumstances, ejectment of the appellant without affording him an opportunity to take the settlement on reasonable terms does not seem to be desirable.

For the reasons given above, the appeal is allowed and the case is sent back to the Deputy Commissioner for disposal of the application for settlement according to law in the light of the directions given above.