Ram Krishna Sevashram vs The Assam Board of Revenue

D.N. Baruah, J.—Petitioner in this application under Article 226 of the Constitution of India has challenged the order dated 13.9.93 passed in Misc. Case No. 3/90 by the Executive Magistrate, Tinsukia and also the order dated 23.3.94 passed in case No. 174 RA(Tin)/93 by the Chairman, Assam Board of Revenue and prays of issuance of writ of certiorari/mandamus and or any other appropriate writ or direction.

The Petitioner�s case in brief is as follows:

Petitioner is a charitable religious institution established in Margherita in the year 1960 and registered in the year 1981 under the Societies Registration Act, Land measuring 1 Bigha 3 Kathas 15 Lechas included in No. 3394 and 3395 covered by periodic patta No. 381 of Makum Mouza of Margherita Town, Tinsukia, was under the exclusive possession of the Petitioner society since 1967. On the land the Petitioner has its own building and other structures. The land was acquired by the Petitioner by an arrangement made with the third Respondent and after obtaining possession it remained with the Petitioner society.

On or about 1972 during the time of settlement of land, the Settlement Staff having found that the Petitioner in exclusive possession the said land mutated in the name of the Petitioner. Thereafter, the Petitioner was granted a patta, being number 381 by the Settlement Officer. After issuance of the said patta the Petitioner paid land revenue, and Annexure-2 is one of the said land revenue receipts, According to the Petitioner, it has not violated any terms and conditions of settlement as incorporated in Annexure-1 to the petition. Therefore, the patta is not (sic) to be cancelled in any way and no proceeding has yet been started for cancellation of the said patta. The mutation was obtained in 1971 -72 and the patta was issued thereafter in or about November 1976. On or about 7.2.87 the third Respondent filed Annexure-3 application dated 7.2.87 before the District Collector, Dibrugarh district. This was numbered as Misc. Case No. 3/90. In the said application the third Respondent, inter alia stated that the grant of mutation to the writ Petitioner in respect of 1 Bigha 2 Kathas 15 Lechas of land was illegal and therefore prayed for cancellation of the said mutation from draft ''chitha''. However, there was no prayer for cancellation of the patta granted in favour of the Petitioner by the competent authority.

The Petitioner filed objection and contested the case. In the objection the Petitioner inter alia, stated that the periodic patta in respect of the land was granted as far back in 1976 and the land revenue also had been paid. The land was also mutated in his favour and was in exclusive possession of the Petitioner. Accordingly, the question of cancellation of mutation did not arise. On or about 3rd September. 1987 there had been some encroachment by third Respondent and a First Information Report was lodged before the Officer-in-Chage of Margherita Police Station. On 13.9.93 the 2nd Respondent directed deletion of the name of the writ Petitioner from the periodic patta No. 381, which was granted by the competent authority, i.e. the Settlement Officer and to insert the name of 3rd Respondent. It was also directed to send copy of the order to the Revenue personnel for correction of the records of right. The Petitioner preferred an appeal before the first Respondent (Case No. 174 RA (Tin/93). The said appeal was heard on 23.3.94 and was dismissed. Hence the present petition.

The third Respondent has entered appearance by filing a caveal.

I heard Mr. P.O. Barua, learned Counsel for the Petitioner, Mr. A.C. Buragohain, learned Government Advocate for the State and Mr. A.S. Choudhury, learned Counsel for the Respondent No. 3.

Mr. P.G. Baruah submitted that the patta in respect of the land in question had been issued by the competent authority and the 2nd Respondent had no authority or jurisdiction to delete the name of the Petitioner from the patta No. 381, which was granted by the authority, because it was nothing but cancellation of the patta Mr. Barua further submitted that cancellation of patta could be made only in accordance with the provisions laid down under the Assam Land and Revenue Regulations. That having been not done the entire order passed by the Respondent No. 2 was illegal, without jurisdiction and liable to be set aside. The Board of Revenue, however, did not go to that aspect of the matter while passing the impugned order dated 23.3.93. The Board of Revenue dismissed the appeal holding that the disputed land was reportedly donated to the Appellant without any deed of gift and without desire of the donor to part with the properly. The mutation was also grained on the basis of donation, however, this was not countersigned by the Settlement Authority, therefore, this could not be taken into consideration. According to the Board of Revenue the ASK acted beyond jurisdiction and as such the action was void. Mr. Barua further submitted that the patta once issued can only be cancelled on certain condition as envisaged under Rule 26 of the Settlement Rules trained under the Assam Land and Revenue Regulations. However, Mr. A.S. Choudhury, learned Counsel for the 3rd responded strenuously argued that the impugned order passed by the (sic) Magistrate and affirmed by the Board of Revenue was just and proper and no interference was called for. The learned Govt. Advocate also supported the impugned order.

I have perused the impugned Annexurc-4 order dated 13.9.93 passed by the Executive Magistrate and also Annexure-5 order dated 23.3.94 passed by the Assam Board of Revenue. The Executive Magistrate by the order dated 13.9.93 disposed of the matter with the following observations:

On the premises hereinabove mentioned, it is ordered that the name of Sri Sri Ram Krishna Sevashram be deleted from the periodic patta No. 381, Margherita town, Makum Mouza and the name of the Petitioner i.e. Sri Naresh Ch. Das be inserted therein. Copy of this order be sent to the R.K. Go Branch, Tinsukia and to the Circle Office Margherita Circle for correction of the records accordingly.

The appeal is allowed and the case in disposed of accordingly.

As per the impugned order of the Executive Magistrate only draft chitha was prepared at the time of settlement of the land by the Assistant Supervising Kanango on 25.9.92 staling that the land was given on donation to the Petitioner. The draft chitha had not been signed or countersigned by the ASO or the Settlement Officer concerned. The ASK also separated the original patta and made a new patta, namely, PP No. 381.

The donation of land given to the Petitioner was denied by the 3rd Respondent. From the SDO''s report two facts appear, according to the Executive Magistrate, that Respondent No. 3 was still in possession and he had no other land in his name, therefore, he cancelled the patta. However, the Board of Revenue also did not go in to the question whether me patta could be cancelled under the facts and circumstances. The Deputy Commissioner, as per provisions of settlement rules can give settlement. During the period of settlement operation the Settlement Officer may also settle any land and after settlement, patta is issued and the term of period of patta expires with the expiry of period of settlement. After the closure of the settlement also the land capable of giving settlement may be settled by the Deputy Commissioner and in that case lease will be only for the period till the expiry of the period of settlement of the locality. Settlement given by the Deputy Com-missioner is always subject to the general control of the State Government and the Commissioner shall have the power to confirm or cancel any settlement including the grant of patta if it was issued in contravention of the Rules of Settlement.

In Jiban Ch Deka v. State of Assam (1994) 1 GLR 268 : 1993 (2) GLJ 423 a full bench of this Court held thus:

As per Rule 26, the Commissioner shall have power to confirm settlement or cancel a settlement made in contravention of Rules. "Settlement" as defined under Rule 2(f) means leasing of land. It also includes the earlier stages leading to such leasing, such as, operation of survey, classification report, preliminary to such leasing. Lease may be annual or periodic. Therefore, the settlement not only includes the earlier stages leading to grant of patta but also the grant of patta. Therefore, the Commissioner has been empowered under the said Rule 26 to either confirm or cancel any settlement including the grant of patta if it was made or issued in contravention of the Rules.

Annexure A patta was issued by the Settlement Officer for a period more than 10 years, Therefore, it can be cancelled by the Commissioner subject to the control of the State Government and in case of violation of any rules. The specific averments made in the petition is that there was no allegation or violation of any of the conditions of patta. Besides, according to the Petitioner, there was no prayer for-cancellation of patta. The petition was filed only for cancellation of mutation, Therefore, there was no scope for cancellation of patta. Even if there was, the Executive Magistrate could not have passed the order for cancellation of patta. But this aspect of the matter was overlooked by the Assam Board of Revenue.

In view of the above, I set aside the order passed by the Assam Board of Revenue as well as the order passed by the Executive Magistrate, However, it is open for the parties aggrieved to lake proper steps for cancellation of the patta if it was granted contrary to the provisions of law, before the appropriate authority.

In the result the petition is allowed, However, no order as to costs.