Mukut Guha Roy vs Nilakanta Hazarika and Another

D. Biswas, J.—This appeal is directed against the Judgment and Order dated 13.5.94 passed by the learned Single Judge in Civil Rule No. 4842/91. The learned Single Judge quashed the entire proceedings of Encroachment Case No. 6/85 and declared the eviction of the writ Petitioner No. 1 as illegal and without authority of law. In addition, the learned Single Judge also directed restoration of possession with the Petitioner No. 1 in respect of a plot of land measuring 1 katha 19 lechas appertaining to Dag No. 1318 of Patta No. 23 and Dag No. 1319 and 1320 of Periodic Patta No. 16. The learned Single Judge also directed the Respondents No. 1 to 5 to pay a compensation of Rs. 50,000/-. Being aggrieved thereby, the Respondent No. 6, Sri Mukut Guha Roy has preferred this appeal on various grounds.

We have heard Shri A.B. Chbudhury, the learned Counsel for the writ Appellant and Shri C.K.S. Baruah, the learned Counsel for the Respondents No. 1 and 2 and also heard the learned State counsel for the officers subordinate to the State.

It would be appropriate to clear the facts first before we take up the issues involved in this writ appeal for consideration.

The Respondent Sri Nilakanta Hazarika''s case before the learned Single Judge was that die above described land was originally owned and possessed by late Amina Khatun, mother of the writ Petitioner No. 2. She was also owner of other lands in the said two pattas. The writ Petitioner took possession of the disputed land on lease from Amina Khatun in the year 1971 on condition of payment of rent @ Rs. 100/- per annum. After obtaining the lease, he had constructed as many as 7 numbers of houses with C.I. sheet and thatched roof. One of such houses was possessed by him for his residential purpose while the other houses were let out to different tenants. His uninterrupted possession since 1971 was disturbed by a notice dated 14.3.85 issued by the Sub-Divisional Officer, Tinsukia in connection with an Encroachment Case No. 6/85 under Rule 18(2) of the Settlement Rules of the Assam Land and Revenue Regulation, 1886. By the said notice, the writ Petitioner was directed to vacate the entire lease-hold premises by removing his houses, crops, fencing etc. on the ground that the said plot of land was part of Government land and the writ Petitioner was in unauthorised occupation thereof. Immediately on 15.3.85, he had submitted an application before the SDO(C), Tinsukia informing him that the said land appertains to private patta land as stated above and, as such, he was not liable to be evicted since he was in occupation thereof as a lease under the original pattadar. Despite that, the Sub-Divisional Officer and the Sub-Deputy Collector, Respondent No. 4 & 5 respectively demolished all the houses on 8.4.85 and evicted the members of his family during his temporary absence. After eviction, the said land was handed over to the Appellant although the Appellant had no semblance of right, title or possession over the said land. On 16.4.85, the writ Petitioner submitted an application before the Sub-Divisional Officer raising objection to the arbitrary and illegal eviction. The SDO(C) issued a direction to the Assistant Political Officer, Margherita to cause an enquiry. The Assistant Political Officer in his report dated 27.7.90 addressed to the Deputy Commissioner submitted that the eviction was carried out in an illegal manner as the land appertained to private patta land and the writ Petitioner was in possession thereof. As no action was taken on the report submitted by the Assistant Political Officer the petition under Article 226 of the Constitution was filed for issue of a Writ of Mandamus.

Except the writ Appellant, none else has filed any affidavit-in-opposition. The writ-Appellant in his affidavit denied the title of predecessor-in-interest of the writ Petitioner and also challenged the settlement of the disputed land on lease with the writ Petitioner. It is averred that the land in question belonged to his father, Late Bisweswar Guha Roy which was requisitioned by the State Govt. in 1971. After requisition, the land was under custody of the State and taking advantage of the same, the writ Petitioner encroached upon the said land for which the encroachment proceeding No. 6/85 was initiated and a notice of eviction under Rule 18(2) of the Settlement Rules of the Assam Land and Revenue Regulation was issued. The writ Petitioner did not challenge the said notice before the appropriate forum i.e. the Assam Board of Revenue and, therefore, under the process of law he was evicted from the said land. It has been asserted that after eviction of the writ Appellant, the said land was handed over to him where he has raised a boundary wall and constructed one Assam Type house. His further case is that the said land was requisitioned for the purpose of construction of National Highway along with other plots of lands and, eventually, the disputed land was de-requisitioned for not being necessary for the construction of the road. On derequisition, the authorities were obliged under the law to hand over the land to him which they, in fact, did. Elaborating the source of title, the writ-Appellant further averred that his father Late Bisweswar Guha Roy purchased 7 bighas 2 kathas and 1 lechas of land from the pattadar Smt Monudevi Sinha. The registered sale deed was executed on 26.12.67 by her constituted attorney Sri Nikunja Behari Sinha. Apart of the aforesaid land along with other lands belonging to different persons measuring about 10 bighas 4 kathas and 13 lechas was requisitioned by the Respondent State with notice to his father and other co-pattadar Smt Monudevi Sinha, and 50 percent of the compensation money for jirat amounting to Rs. 1,621/- was also paid to his father. It was only after requisition, when the land was in possession of the State Govt. the writ Petitioner started encroaching upon the disputed land which devolved on him after demise of his father. After construction of the National Highway, the surplus land was surrendered to the pattadars. During the process of surrender, it was noticed that the disputed land was under encroachment of the writ Petitioner No. 1. The Deputy Commissioner. Dibrugarh, by his wireless telegraphic message dated 6.3.85 directed the Sub-Divisional Officer (C), Tinsukia to initiate eviction proceeding and to evict the encroachers. Accordingly, the Encroachment Case No. 6/85 was initiated and the writ Petitioner was duly and legally evicted. The vacant possession of the land was delivered to the writ Appellant on 24.4.85. It is further submitted that the dispute involves some disputed questions of fact which cannot be dealt with effectively in a petition under Article 226.

The pleadings of the parties quoted above show that both of them claim title over the disputed land. The writ Appellant''s claim is that the land was purchased by his father from co-pattadar Smt Monudevi Sinha, whereas the writ Appellant staked his claim of lease-hold under Amina Khatun. It would appear from the Jamabandi (Anenxure-1 & 2) that both Smti Amina Khatun and Smt Manudevi Sinha are co-pattadars of the concerned periodic pattas. Annexure-A, a copy of sale deed executed by the duly constituted attorney of Smt Manudevi Sinha shows that the father of writ Appellant along with Anr. purchased more than 7 bighas of land belonging to Smt Manudevi Sinha. No document of lease to show that the disputed land or any part and parcel of land of the disputed Dags was settled with the writ Petitioner by late Amina Khatun during her life time. Both the writ Appellant and the predecessor-in-interest of the writ Petitioner appeared to have title over certain areas of land of both the periodic pattas. The Petitioner''s claim that he was in possession of the disputed land by virtue of lease granted to him has been disputed by the Appellant this question can be effectively answered only after a detailed enquiry. Obviously, this is possible only after due opportunities are given to the parties to adduce oral and documentary evidence. Whether late Bisweswar Guha Roy, after purchase from Smt Monudevi Sinha, was put in actual physical possession of the land or not is also a question which cannot be determined on the basis of pleadings and the documents annexed. This necessitates evidence--Both oral and documentary. The writ Appellant''s specific case is that the writ Petitioner encroached upon the land after it was acquired by the State Govt. The action taken by the State Govt. in evicting the writ Petitioner and various documents annexed with the affidavit-in-opposition create genuine doubt as to the bonafide of claim of the writ Petitioner that he had occupied the land on the strength of lease granted to him. This gains significance in view of the specific plea of the writ Appellant that the writ Petitioner encroached upon the land and constructed the house after requisition. Whether any lease was granted or not and, if so granted, whether the writ Appellant was put into possession are questions of fact and the disputes can be affectedly settled only after proper evidence is recorded. These questions obviously cannot be answered on the basis of affidavits and the documents annexed. The copy of the notice of the requisition served upon the father of the Respondent and the fact that 50 per cent of the compensation amount was paid to him runs counter to the claim of the writ Petitioner. All these issues will have to be resolved before appropriate relief is granted to the writ Appellant. Perhaps, a survey may also be necessary for ascertaining whether the disputed land appertains to the share of the Appellant or the writ Petitioner. Taking all these matters into consideration, we are of the opinion that it would not be possible on the part of this Court to do justice to the parties in exercise of its discretionary powers.

The learned Single Judge laid emphasis on the fact that the disputed land belongs to private patta land and eviction could not be carried out under Rule 18(2) of the Settlement rules. It is a fact that the land in question belongs to private patta land. But, it was under requisition for a certain period of time. The State is under an obligation to hand over the land back to the person from whom the possession was taken. Any enrichment made during the period will have to be dealt with within the purview of Rule 18(2) of the Settlement rules. Rule 18(2) reads as follows:

When such person has entered into possession of land that has previously been reserved roads or roadside land or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when further, there is no bona fide claim of right involved he may be ejected or ordered to vacate the land forthwith and the Deputy Commissioner may sell, confiscate or destroy any crop raised, or any building or other construction erected without authority on the land.

It would appear from Sub-rule (1) of Rule 18 that the Deputy Commissioner has been authorised to eject a person from any land over which he has no right of any kind provided such person has entered into possession of that land which has been reserved for roads, grazing of village cattle or other public purposes. In the instant case, as alleged, the Appellant encroached upon the land when it was under requisition. In the instant case, the land was acquired for the purpose of construction of National Highway and this would obviously be covered by the words "other public purposes''. Unless a decision is arrived at after detailed enquiry by a Civil Court of competent jurisdiction as to whether the writ Petitioner had encroached upon the land as alleged, it would be premature to conclude that the provisions of Rule 18(2) of the settlement rules cannot be invoked in the instant case.

The report given by the Assistant Political Officer has been relied upon in granting the reliefs in the writ petition. This report given by the Assistant Political Officer in his administrative capacity after spot verification may have significance to the extent it relates to the present features of the disputed land. The salient questions involved in this writ appeal whether the disputed land falls to the share of the writ Petitioner or the Appellant and whether it was possessed by the writ Petitioner with effect from 1971 on the strength of a lease cannot obviously be answered by the Assistant Political Officer except on surmises drawn from oral claims made by the parties at the time of spot verification. This report cannot overweigh the legal consequences that can be legitimately presumed because of the notice of acquisition and the payment of compensation to the father of the writ Appellant, besides the document of title of the Appellant. In our opinion, it would not be safe to draw a conclusion in this matter solely relying on the report submitted by the Assistant Political Officer.

The learned Counsel for the writ Appellant relied upon a number of cases disposed of by the Apex Court on issues having bearing with the dispute at hand. In order to justify his argument that the disputed questions of fact cannot be answered by this Court, the counsel has referred to the decision of the Apex Court in D.L.F. Housing Construction (P) Ltd. Vs. Delhi Municipal Corpn. and Others, , New Satgram Engineering Works and Another Vs. Union of India (UOI) and Others, There is no dispute with regard to the position of law as interpreted by the Supreme Court in the aforesaid Judgments. It is nobody''s case that disputed questions of fact can be examined and answered in exercise of writ jurisdiction. Therefore, a detailed discussion of the Judgments cited by the learned Counsel for the writ Appellant is not being entered into. The learned Counsel for the Appellant also referred to a decision of the Supreme Court, reported in Smt. Parvatibai Subhanrao Nalawade Vs. Anwarali Hasanali Makani and others etc., in order to support his argument that matters relating to immovable property shall be left to the ordinary civil law and writ jurisdiction shall not be invoked except in exceptional circumstances. According to him, the disputes in the instant appeal is of such a nature that it cannot be said to be a case for exception. We have no reason to disagree with the learned counsel. We find that this is a case which involves various complicated questions of facts and, as such, it would not be in the interest of justice to allow the writ petition.

The decision cited and relied upon by the Respondent/writ Petitioner before the learned Single Judge may be dealt with in brief. In Sohanlal Vs. The Union of India (UOI), the Supreme Court ruled that if it is found that eviction of a person is illegal, a Writ of Mandamus may be issued or an order in the nature of Mandamus can be made against the Union of India for restoration of possession of the property to the person who has been illegally evicted. In The Union of India (UOI) Vs. Ram Kanwar and Others, the Supreme Court held that a right to be put in possession of the requisition property arises when the purpose of requisition cases to exist. A Division Bench of this High Court in Civil Rule No.634/76 also reiterated the view as laid down in Sohan Lal v. Union of India and Ors. (supra). That apart, reference has also been made to the decision in Lieutenant Governor, Himachal Pradesh v. Abinash Sarma, (1970) 2 SCJ 735, AIR 1983 P&H 147 and AIR 1983 59. We have considered the ratio laid down in the above cases in details. The basic fact here is that the land in question was found by the authorities in possession of a third party. The third party''s claim is altogether different. His claim of lease-hold and possession thereon dates back to 1971. Unless these questions are answered, it would be difficult to come to a conclusion that the encroachment proceedings initiated under Rule 18(2) as aforesaid was illegal. Therefore, instant relief by issuing a writ of mandamus is not feasible in the present case. The aggrieved party will naturally have to approach the appropriate Civil Court of competent jurisdiction for effective adjudication of the issues involved. This process cannot be short-circuited by invoking writ jurisdiction of this Court.

In the result, we allow the appeal and set aside the impugned Judgment and order dated 13.5.94. Cost easy.