Saligram Rai Chunilal Bahadur and Co. vs Jajna Ch. Goswami and Another

Thadani, C.J.—These are two appeals u/s 147. Assam Land and Revenue Regulation, 1886, directed against two orders passed by the learned Deputy Commissioner of Nowgong, dated 20th September 1949 and 24th October 1949. The order, dated 24th October 1949 is not an independent order but a continuation of the order passed by the Deputy Commissioner on 20th September 1949.

The facta material to the appeals are these: Saligram Rai Chunilal Bahadur & Co., of Haiborgaon, District Nowgong, purchased periodic dag No. 667 of Haiborgaon Town from Messrs. Askaran Surujmall alias Surajmall Meghraj in 1933, built a house on it and have been in occupation of it ever since. Dag No. 403 forms the frontage of dag No. 667.

It is the case of the appellants that the land forming the frontage consisted of a deep pit, in filling which they spent considerable sums of money; dag No. 403 is contiguous to the Railway land upon which the B. O. C. petrol pump, depot, and kerosene oil depot are located; dags Nos 403 and 667 were at one time outside the town area, but in 1919 or 1920, they became part of the town area and a portion of this area--some 12 to 50 feet--was reserved for the roadside After the inclusion of this area within the municipal limits the Deputy Commissioner served a notice upon the appellants to set apart 12, for the roadside and that if any houses had been constructed upon it, they must be demolished at their cost.

On 21st May 1948, the appellants formally applied to the Deputy Commissioner, Nowgong, for a settlement of a peace of land from the frontage of dag No. 667, measuring some 16 lessas. In due course, their application was recommended by the then Deputy Commissioner. But in 1949, the Land Settlement Advisory Committee declined to recommend settlement with the appellants and the Deputy Commissioner thereupon rejected the appellants petition on Such September 1949; on 24th October 1949, the Deputy Commissioner settled the entire dag NO. 403 with respondent 1 and put him in possession on 27th October 1949. It is against this order that the appellants have filed the present appeals.

Mr. Ghose for the respondents has raised a preliminary objection, namely, that no appeal lies as the order from which the appeals have been preferred is not an order passed by the Deputy Commissioner, but an order passed by the State against which no provision for appeal has been mace in the Regulation. It seems to me that this objection is based upon certain reports which have been submitted to this Court by the Deputy Commissioner. One of the reports is in these terms:

Subject: Revenue Revision No. 111 (R) of 1949. Saligram Rai Chunilal Bahadur and Co, v. (1) J. C. Goswami, (2) The Province of Assam, in the matter of settlement of 16 lessas of land in dag No. 403 of Haiborgaon town.

Sir,

I have the honour to submit report on the subject, as below:

It is virtually a prayer for revision of the settlement order of Government of Assam in respect of the land in dag No. 403, settled with one J. C. Goswami, and not of my order, as will be evident from the following facts:

Messrs, Saligram Rai Chunilal had first applied for 16 lessas of land in dag No. 403, out of the total area of 2 kathas, 16 lessas contained in it--vide petition-No. 4228/47-48 enclosed. A proposal was accordingly submitted to Government recommending settlement by the then officiating Deputy Commissioner, Syed Makibor Rahman. So long, there had been no other applleant for this dag and the appellant''s was a solitary case: vide this office letter No. 5629/5/5 R, dated 7th October 1948, copy enclosed. Thereupon, Government enquired of the views of the District Land Advisory Board, which is a Board constituted by Government according to its present policy of Land settlement--vide Government letter No. RS. 182/48/27, dated 3rd December 1948, copy enclosed. Accordingly, the matter was placed before the Land Settlement Advisory Board''s meeting, but the Board unanimously disagreed to the proposed settlement. The decision was communicated to Government under this office letter No. 1942 B, dated 11th May 1949, copy enclosed. Thereupon the Government dropped the matter, refusing settlement--vide Government letter No. RS. 182/48/32, dated 20th May 1949, copy enclosed. The matter ended there.

But, at the time of considering soma application for land in the dag No. 403 later on their case was once again taken up and placed before the Land Settlement Advisory Board along with the application of Nagarmal Agarwalla, about which a separate report is being submitted, as required, in the Revenue Appeal No. 118/49 of Nagarmal v., J. C. Goswami, vide this office letter No. _______ dated ______________ and that of the petition of J. C. Goswami. This time also, the Advisory Board did not agree to the settlement of any land in dag No. 403 with the appellant. Thereupon his petition was disposed of by me as empowered under rule 9 of the Settlemeat rules. Yet the appellant has been allowed to use a much larger area than what is necessary, as will be seen from my order on the petition. This path will not however, be settled with any one in future according to Government order.

After receipt of Government order contained in their letter No Rs. 101/49/106, dated 19th October 1949, copy enclosed, sanctioning settlement of land in dag No. 403 with J. C. Goswami, the appellant had prayed for stopping settlement as sanctioned by Government--vide petition No. 1817/49 50 As the applicant did not file any appeal before the High Court, nor any directions from the appellate Court came down then, I could not but give effect of the Government order of settlement, and hence their petition could not be considered, which was received after I had passed order for delivery of possession etc., as usual, passed on the strength of the Government order Besides, had no power to act up contrary to Government orders unless there be some directions from it to this effect. The appellant had also filed another petition before the Government which was rejected by it--vide Government order with their Memo No. RS. 101/49/117, dated 4th November 1949.

It is clear from the report of the Deputy Commissioner that at the time of the application made by the appellants for settlement, theirs was the only application for consideration. Shortly afterwards, the Government of Assam appointed a District Land Settlement Advisory Board in order to advise the Deputy Commissioner on questions relating to settlement of waste and town land. Upon a requisition made by the Government of Assam, the Deputy Commissioner placed the question of settlement of the land for consideration before the District Land Settlement Advisory Board. The Board declined to accept the proposal of the Deputy Commissioner who communicated to Government the view of the Board under his letter No. 1942 R, dated nth May 1949. On receipt of this letter, Government decided not to settle the land with anybody.

For some obscure reason, when some other applications for settlement of land in dag No. 403 were being considered, this case was re-opened and placed before the District Land Settlement Advisory Board, for consideration along with the application of J. C. Goswami, the respondent, The Advisory Board recommended settlement with the respondent. The Deputy Commissioner, in conformity with the views of the Advisory Board, recommended settlement of the land with the respondent. Against the proposal of the Deputy Commissioner recommending settlement with the respondent, the appellants preferred a petition to the Government of Assam, whereupon the Hon''ble Revenue Minister himself made a local enquiry and, after giving a hearing to the parties concerned, directed the Deputy Commissioner to take into consideration the petitions of the appellants and that of the respondent and to submit a report after consulting the District Land Settlement Advisory Board.

Apparently, the appellant Nagarmall Agar walla had been guilty of some unwarranted conduct in digging up earth in dag NO. 404 and encroaching upon a portion of Sarkari dag NO. 403, upon which he had constructed a temporary house The Hon''ble Revenue Minister appears to have taken a serious view of this encroachment and the Deputy Commissioner, acting on the advice of the District Land Settlement Advisory Board, decided to reject the application of the appellants for settlement and offered settlement to the respondent, J C. Goswami. I can see nothing from the reports submitted by the Deputy Commissioner that the orders appealed from were not passed by him but by the Government of Assam.

Mr. Ghose next contended that assuming that the orders were passed by the Deputy Commissioner, they were passed in consequence of the previous approval of the Government of Assam given to the proposals made by the Deputy Commissioner, and that as the Deputy Commissioner was merely giving effect to the approval of the Government, the order must be regarded as orders of the Provincial Government. I do not think there is any substance in this contention. Rule 2 of the rules framed under the Regulation is in these terms:

The disposal of waste land required for ordinary or special cultivation or for building purposes will, subject to the general or special orders of the Provincial Government, vest in the Deputy Commissioner who will dispone of such land by grant lease or otherwise in the manner and subject to the conditions set forth in the rules following provided that the Deputy Commissioner may expressly reserve any such land from settlement.

Mr. Barua on behalf of the Government contends that as Rule 2 provides that disposal of waste land is subject to the general or special orders of the Provincial Government, the order approving of the proposal of a Deputy Commissioner settling land upon a person, amounts to an order of the Provincial Government. I do not think that is a correct interpretation of Rule 2, for it militates against the provision in Rule 2 which says that the disposal of waste land is vested in the Deputy Commissioner. The words " subject to the general or special orders of the Provincial Government" cannot affect the power of disposal which vests only in the Deputy Commissioner under the Regulation. Moreover, I do not think Rule 2, is properly applicable to the facts of this case. The appropriate rule governing this case is Rule 66, which specifically deals with leases of waste land in towns. Rule 66 is in these terms:

Waste land in town shall be settled by the Deputy Commissioner in accordance with Rs. 67-71 of these rules subject to confirmation by the Commissioner. In sub-divisions, the functions of the Deputy Commissioner shall be exercised by the Sub-divisional Officer, subject to the control of the Deputy Commissioner In this Section of the rules unless the contrary is apparent from the context, the expression Deputy Commissioner includes a Sub-divisional Officer.

It is plain that there is a substantial difference between the language of Rule 2 and the language of Rule 66. Under Rule 66, the settlement of town land by the Deputy Commissioner is subject only to confirmation by the Commissioner which now means the Government of the State. The words "subject to confirmation" only mean that when a settlement is made by the Deputy Commissioner, the Government either confirms the settlement so made or refuses to confirm it. Rule 66 does not empower the Government to settle land in the first instance with an applicant; that power is vested in the Deputy Commissioner only. Mr. Barua for the Government relied upon para. 2 of a copy of letter NO. RS. 195/47/39, dated 22nd August 1947, in which the words "previous approval of Government" are used. Here again, the words "previous approval" do not mean ''previous orders of the Government''; the words "previous approval" mean that when a proposal comes from the Deputy Commissioner to settle land with a person, the Deputy Commissioner is not empowered to pass a final order unless the Government has approved of the proposal. The Government may approve or may not approve of the proposal. In case it approves, the Deputy Commissioner will pass a formal order; in case it does not approve, the Deputy Commissioner will not pass a formal order. Under no circumstances, the words "previous approval" used in para. 2, can be regarded as amounting to a previous order of Government.

The interpretation I have put upon Rules 2 and 66 and para. 2 of the letter to which I have referred, appears to be borne out by a letter of the Government, dated 14th July 1949, relating to the functions of the Land Settlement Advisory Committee in Assam. In the letter, it is stated:

Inasmuch as the Committee will be advisory, the responsibilities of the Deputy Commissioners or the S. D. OS. will always remain as before. But when the Deputy Commissioner or Subdivisional Officer does not accept the advice of the Committee, he should report the reasons thereof to Government.

I am satisfied, therefore, that the orders in question are appealable orders having been made by the Deputy Commissioner after taking full responsibility in the matter.

The question arises--whether on the merits of this case, the orders passed by the Deputy Commissioner on 20th September 1949 and 24th October 1949 should be set aside or affirmed.

In disposing of this question, I propose to state only one reason why I do not think the orders of the Deputy Commissioner should be allowed to stand. In my opinion, when a matter involves an impartial adminstration of the Land and Revenue Regulation, justice must not only be done, but must appear to be done. I am glad to observe that the Government of Assam is not unaware of the importance of this maxim, for, I find the following statement in its letter, dated 18th July 1949:

It is further observed that Srijut Jajnachandra Goswami (respondent in this case) in his first application applied only for 15 or 16 lessas of land In dag No. 403, but Government find that some of the members of the Land Settlement Advisory Committee individually recommended that application for settlement, which is not desirable. It is advisable that the members of the Land Settlement Advisory Committee should keep their mind open and should not recommend individual application for settlement of land, so that they may be able to decide such matters after considering the rival claims of different applicants for the same plot of land. Therefore, you are instructed to request the members of the Land Settlement Advisory Committee not to recommend any application for settlement of land individually in future, so that other claimants may not have the impression that they will not get a fair and impartial decision from the members of the Land Settlement Advisory Committee.

I regard this as a very commendable caution administered to the authorities concerned, but the value of the caution has beep mitigated by limiting its exercise to cases which come up before them in the future. Apparently the learned Deputy Commissioner considered himself powerless to do any thing in the present case. It was manifestly difficult for the members of the Advisory Board who had already recommended the respondent''s application, to change their minds and decide the question of settlement on its merits.

I believe the membership of the Advisory Board is not permanent; it can be changed at the pleasure of the Government. In order to give effect to their very commendable caution and to the maxim that justice should not only be done, but appear to be done, the Government of Assam might well have reconstituted the Board and placed this case for the consideration of a reconstituted Board. If for no other reasons than to enable the Government of Assam to place the matter again before an Advisory Board which has not committed itself to any particular view, I propose to set aside the orders of the learned Deputy Commissioner and direct that the applications of the parties should be considered on their merits by a Board whose members are not those who had previously endorsed the application of the respondent in favourable terms. Such a course would ensure an impartial consideration of the merits of the claims made by the parties.

The result is that the appeals are allowed, with no order as to costs.

As I have set aside the material orders of the learned Deputy Commissioner, it follows that there cannot be any question of interference by the respondent with the rights of the appellants. The appellants and the respondent will be in the same position in which they were before the orders in question were passed. Till rules issued in these two appeals are discharged.