Manoranjan Saha and Others vs State of Assam and Others

A.P. Singh, J.—The Petitioners herein happens to be husband and wife whereas Respondents 6 and 7 happen to be the elder brother of Petitioner No. 1 and his sister-in-law. Said Respondents however are husband and wife between them. Petitioners appeared to have been living in Dag No. 410 and 411 in Hojai Town No. 3 for some period of time. Accordingly they approached the State Government with application for settlement of that land in their favour. Considering Petitioners prayer for settlement the Government vide order dated 1.8.90 Annexure-1 to the writ petition ordered for the settlement of 2Ks-10 Ls from the land in their favour subject to the payment of premium @ 100% at the market value of the land which was fixed at Rs. 47,000/- per bigha. It also directed for the correction of revenue records accordingly. It appears that the said order was not to the satisfaction of Petitioners as the sum of Rs. 47,000/- which was fixed by way of price of the land per bigha was considered too high hence unacceptable. They again approached the State Government for reduction of the amount payable by them for the said land. Accordingly vide order dated 14.5.91 the State Government rescinded its earlier order dated 1.8.90 and passed a fresh order of settlement of the land in favour of Petitioners at a fixed rate of Rs. 10,000/- per bigha. It is alleged that Petitioners made part of the payment to the government, Despite that order of settlement was not implemented as neither possession of the land was delivered to them nor necessary correction of the land records was carried out. Feeling aggrieved on that account Petitioners filed C.R. No. 651/92 before this court. A division Bench, of this Court comprising Hon''ble the C.J. (Mr Justice U.L. Bhat) and Hon''ble Mr. Justice W. A. Shishak vide order dated 8.6.92 disposed the Civil Rule without deciding it on merit. The Court was informed by the learned government advocate that the order of settlement could not be implement as appeal against that order had been filed before the State Government by Respondents 6 and 7. This court accordingly directed the State Government to hear the Petitioners also in the appeal of the said Respondents while deciding it. From Petitioners own averment made in paragraph 11 of the petition it would appear that they appeared before the government and filed their affidavit for contesting the claims of Respondents 6 and 7 before the State Government. Petitioners maintained in their affidavit that claim for the settlement of the land made by Respondents 6 and 7 in their own favour was frivolous on the ground that the Respondent 6 happened to be his elder brother who was given shelter by him when he had come to him along with his family members from Agartala in the year 1970 on being evicted by Railway authorities from Railway land. Since then he has been living with him as his guest and had set up a false case for allotment of land which was in his possession. It would further appears from Petitioners averments he had made in paragraph 12 of the writ petition that the State Government, vide order dated 29.10.92 allowed Respondents appeal and directed for allotment of the land in favour of the Petitioners as well as Respondents 6 and 7. Thereafter Petitioners again approached the State Government for seeking stay of the operation of the order dated 29.10.92 and the said order was stayed and several interim stay orders were passed by the Government from time to time. Order dated 29.10.92 however has not been rescinded and is still intact. Ultimately by impugned order dated 2.4.96 (Annexure- 12) the State Government has made fresh order of settlement of the land as per its decision in the appeal of Respondents 6 and 7. The impugned order reads as follows:

No RSS. 205/85/335

dated Dispur the 2nd April, 96.

From:- Shri M. Das, ACS

Dy. Secy. to the Govt. of Assam

To,

The Dy. Commissioner, Nagaon, Assam Sub:- Settlement of land in the name of

Sri Manoranjan Saha and others.

Sir,

With reference to the above, I am directed to say that the Governor of Assam is pleased to order for settlement of land measuring 2Ks 10Ls (two kathas ten lechas) covered by Dag No. 410 and 411 of No. 3 Hojai Town Kissan in the names of Sri Manoranjan Saha and his wife Anjali Saha. Minati Saha and Sri Sukharanjan Saha on realisation of premium @ 100% of the market value of the land fixed at Rs. 15,000/- (Rupees fifteen thousand) only per bigha as per break up indicated below:

Sri Manoranjan Saha & his wife -1 K 9 Ls. Smt. Anjali Saha

Smt. Minati Saha-0 K 41s

Sri Sukharanjan Saha-0k 71s

Land (for all of these) -OK- 101s. Total area of land-2Ks 10 Ls.

Relevant land records etc. may be corrected and patta issued in the joint spouse, where necessary after realisation of due premium.

This supersede the previous orders, if any in this regard.

Sd/- Dy. Secretary to the Govt. of Assam Revenue(S) Dept.

Memo No. RSS 205/85/335-A dt. 2.4.96

Copy to:

S.D.O. (Civil)Hojai Sankardev Nagar, Nagaon

Circle Officer, Hojai Circle, Hojai

Sri Manoranjan Saha Hojai Town.

Smt. Minati Saha Kalibari Road

Sri Sukharanjan Saha Hojai, Dist-Nagaon.

By order etc. Sd/- Dy. Secretary to the Govt. of Assam Revenue (S) Department.

A reading of the order passed by the government for the settlement of the land in favour of Petitioners and Respondents 6 and 7 would show that a larger share of 29 Ls has been given to Petitioners whereas smaller portion of 11 Ls has been given to Respondents 6 and 7 whereas 10 Ls. of Land has been left for and occupation by both (Respondents and Petitioners). In all a total area of 2 Kathas 10 Ls. of land has been made available to them. This order has now been challenged by Petitioners in this writ petition.

Mr. K.K. Mahanta, learned Counsel for the Petitioner assisted by Smt. B. Choudhury, has contended that the State Government possessed no power to supersede its earlier order of settlement dated 1.8.90 and the subsequent modified order dated 14.5.91. His Second submission was that once Petitioners filed his review application for seeking cancellation of the order dated 29.10.92 there was no justification for State Government to have made the impugned order of settlement by way of implementation of its order dated 29.10.92 without first disposing Petitioners review application. Third contention of Sri Mahanta was that on Petitioners making payment of the land revenue for the land and after correction of revenue records by revenue authorities on his application of the settlement order dated 14.5.91 right has accrued in his favour which cannot be taken away by the impugned order without providing him opportunity of hearing.

I have heard the learned Counsel for the parties. On hearing them, I do not feel inclined to agree with either of the contentions made by Sri Mahanta in support of the writ petition.

So far the first contention of Sri Mahanta is concerned it is to be seen settlement of the land in Petitioners favour by orders dated 1.8.90 or 14.5.91 was made by the State Government being wholly unmindful of the claim of Respondents 6 and 7. Neither from those orders nor from the averments of Petitioner made in the writ application it is made out that government had considered the rival claim of those Respondents while settling the land in question in Petitioners favour. It was for reasons of non-consideration of their claims that Respondents 6 and 7 filed appeal before the State Government against the order of settlement made in favour of Petitioners. In the circumstances State Government was fully justified in deciding their appeal in which Petitioner were given opportunity of hearing as would appear from their own version in paragraph 11 of the petition. When Petitioners appeared before the State Government for contesting the claim of Respondents 6 and 7, Petitioners did not question the jurisdiction of the State Government on the ground that the said government possessed no power of review so as to supersede its earlier order of settlement of the land in their favour. The fact that the said point was not raised by Petitioners before the State Government in their affidavit would also go to show that there was no factual basis with the Petitioners for raising the point. Hence it is not permissible to raise that point in this Court at this stage in absence of the necessary facts in that regard in the record. From the material available on record of the case it cannot, therefore, be denied that Respondents 6 and 7 were in possession over part of the land in dispute in their individual capacity .This fact is proved from the Petitioners own averments in paragraph 24 of the writ petition from which it would appear that Petitioners have filed suit being T.S. No 22/95 in Civil Court seeking eviction of Respondents 6 and 7 from the land in dispute. In view of the above facts and circumstances, it cannot be said that the order dated 29.10.92 which was passed on the appeal of Respondents 6 and 7 was by way of review. On the contrary the said order was passed in a just and proper exercise of the executive powers by the State Government. It is to be noted that order dated 29.10.92 has not been challenged by Petitioners and the said order has now become final. So far the impugned order is concerned it is by way of execution for implementation of the earlier order of the State Government dated 29.10.92, hence no exception can be that to the said order dated 2.4.96 unless order dated 29.10.92 is challenged by the Petitioner.

Second contention of the learned Counsel for the Petitioner too has no merit. Once the order dated 29.10.92 was passed on the appeal of Respondents 6 and 7 after hearing Petitioners the State Government was left with no power to entertain a fresh prayer from Petitioner for setting aside or recalling that order as it had attained the character of a quasi-judicial order which could not be reviewed without there being specified power available in that regard.

(Third contention of Petitioners too hardly has any merit. It appears that revenue authorities being wholly Unaware of the order dated 29.10.92 and believing that the order dated 14.5.91 was to be implemented by them, passed necessary follow up orders for the correction of revenue record and accordingly accepted land revenue for the land from Petitioners. These actions of Respondents taken under mistake of fact, would not go to confer any right on Petitioners specially when earlier order of settlement of the land in dispute made in their favour on 14.5.91 had already been set aside by the State Government vide order dated 29.10.92 by virtue whereof order ceased to exist and could not be implemented.

In the above view of the matter, I find no merit in this writ petition which is accordingly dismissed. There shall be no order as to costs. This order however does not prevent the Petitioners from challenging order dated 29.10.92 in whatever forum they may be legally entitled to do so.