IN THE GAUHATI HIGH COURT (HIGH COURT OF , NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Writ Petition (C) No.152/2010

1. MRS ARCHANA BARUA, WIFE OF LATE PRITISH JIBAN BARUA, RESIDENT OF WARD NO.2, BARNAPATTY, GAURIPUR, P.S.- GAURIPUR, DISTRICT- , ASSAM. 2. MR. MRINAL JIBAN BARUAH, SON OF LATE PRITISH JIBAN BARUAH, RESIDENT OF WARD NO.2, BARNAPATTY, GAURIPUR, P.S.- GAURIPUR, DISTRICT- DHUBRI, ASSAM. 3. REENA BARUA, WIFE OF LATE PARITOSH JIBAN BARUA, (BEING MINOR SHALL BE REPRESENTED BY HIS MOTHER, REENA BARUA). 4. DIPANKAR BARUA (MINOR) SON OF LATE PARITOSH JIBAN BARUA. 5. SMTI. RAJASHREE BARUA (MINOR) D/O. LATE PARITOSH JIBAN BARUA. ALL ARE RESIDENTS OF WARD NO.2, BARNAPATTY, GAURIPUR, P.S. GAURIPUR, DISTRICT- DHUBRI, ASSAM. 6. SRI NAVA DEKA (MINOR) SON OF MURARI MOHAN DEKA, (BEING MINOR REPRESENTED BY HIS FATHER, MURARI MOHAN DEKA). 7. MURARI MOHAN DEKA, SON OF LATE NABIN DEKA, BOTH 5 AND 6 ARE RESIDENTS OF WARD NO.3, GAURIPUR TOWN, P.S.- GAURIPUR, DISTRICT- DHUBRI, ASSAM. …… PETITIONERS. -VERSUS-

1. THE STATE OF ASSAM, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE , LAND REVENUE DEPARTMENT, , - 6. 3. THE DISTRICT COLLECTOR, DHUBRI, ASSAM. 4. THE ADDITIONAL DISTRICT COLLECTOR, DHUBRI CUM LAND ACQUISITION OFFICER, DHUBRI, ASSAM. 5. THE SETTLEMENT OFFICER, DHUBRI AND KOKRAJHAR, DHUBRI, ASSAM. 6. SRI BALORAM ROY @ BARMAN, SON OF LATE JOGENDRA NATH ROY. 7. SRI BABUL ROY @ BARMAN, SON OF LATE JAGAT ROY. 8. SRI ANIL BARMAN @ ROY, SON OF LATE SUKH NARAYAN BARMAN. 9. SRI HARAKANTRA BARMAN @ ROY, SON OF LATE HARMOHAN BARMAN. 10. SRI BHABESWAR ROY @ BARMAN SON OF LATE KHANJAL ROY. 11. SRI LALMOHAN ROY, SON OF LATE KHANJAL ROY. 12. SRI LAKHI KANTA BARMAN @ ROY, SON OF LATE BUDARU BARMAN. 13. SRI NUKARU BARMAN @ ROY, SON OF LATE BHUDU BARMAN. 14. SRI KANAK ROY @ BARMAN, SON OF LATE KATIRAM ROY. 15. SRI BIREN SWARMAN @ ROY, SON OF LATE SUDHA BARMAN. 16. SRI SIBEN BARMAN, SON OF LATE SUDHA BARMAN.

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17. SRI JOGESH BARMAN, SON OF LATE JOGYA BARMAN. 18. SRI DILIP ROY @ BARMAN SON OF LATE NRIPEN ROY. 19. SRI GAUTAM ROY @ BARMAN SON OF LATE HRIDOY ROY. 20. SRI ASIL ROY @ BARMAN SON OF LATE NILU BARMAN. 21. SRI DULAL ROY @ BARMAN, SON OF LATE LAKHESWAR ROY. 22. SHRI MONBHOLA ROY, SON OF SUKDHAN ROY. 23. AAMIR ALI, SON OF LATE HENGA SHEIKH. 24. SHRI GOLAPI ROY, SON OF LATE KHANIA ROY. ALL ARE RESIDENTS OF VILLAGE- KALDOBA, PART- I, P.O. AGOMONI, P.S. GOLAKGANJ, DISTRICT- DHUBRI, ASSAM. …RESPONDENTS. BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY

For the Petitioners: Mr. A. K. Purkayastha, Advocate, Mr. M. J. Barua, Advocate & Mr. B. J. , Advocate.

For the Respondents: Mr. P.S. Deka, Govt. Advocate, Mr. MH Rajborbhuiya, Advocate & Ms. R. Begum, Advocate.

Date of hearing & judgment: 21.04.2016.

JUDGEMENT AND ORDER (ORAL)

Heard Mr. A. K. Purkayastha, the learned counsel appearing for the petitioners. Also heard Mr. MH Rajborbhuiya, the learned counsel appearing for the private respondent Nos.6—24. The Govt. Advocate Mr. P.S. Deka appears for the respondent Nos.1, 3, 4 & 5. 2. This matter pertains to Gouripur Zamindari Estate land in village Kaldoba, Part-I within Agamoni Revenue Circle in . The predecessor-in-interest of the petitioners Late Sarat Ch. Barua was the khatiandar of the said plot of land but after abolition of the zamindary estate through the Assam State Acquisition of Zamindaries Act, 1951, the widow and sons of the original khatiandar were declared as the joint pattadars of the land in the year 1977, following the resettlement operation of 1975- 76. The writ petitioners herein are the legal heirs of the joint pattadars. 3. On the other hand, the respondents too claimed khatian rights as tenants under the predecessors of the writ petitioners and it is their pleaded case that separate draft khatian(s) were prepared individually for the private respondents in the year 1982 and

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one such draft khatian was issued for Anil Ch. Barman @ Roy (respondent No.8) and the sample khatian is enclosed herein as Annexure-5. A portion of the subject land was acquired for laying the railway tracks through the L.A. Case No.18/2004—05 and the private respondents, on the basis of the draft khatian and possession, made a claim for a share of compensation and objected to the entire payable amount being disbursed to the writ petitioners as the patta holders. 4. While considering the claim of the two groups, the Land Acquisition Officer, Dhubri on 22.10.2007 (Annexure-6) observed that the acquired land is recorded in the name of Late Jyoti Jiban Baruah but his predecessors do not have possession over the land. On the other hand, possession is with another group but they are neither the patta holders nor the recorded tenants. Subsequently in the L.A. Case No.18/2004—05, the Land Acquisition Officer on 12.12.2007, after considering the submission of both group of claimants, found that draft rayati khatians were issued to the private respondents but the said tenancy rights were cancelled on 4.8.1985, on the basis of objection petition Nos.210/211 filed by the patta holders. Then the Asstt. Settlement Officer, Agomoni struck off the names of the draft khatiandars (private respondents) and corrected the record of rights by allowing objection(s) of the writ petitioners. But since the tenancy rights of the private respondents was found to be cancelled in contravention of the provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as ‘the Tenancy Act’), the matter was referred back to the Settlement Officer, Dhubri to dispose of the issue of tenancy rights in accordance with the Tenancy Act and also the provisions of the Assam Land and Revenue Regulation, 1886 (hereinafter referred to as ‘the Revenue Regulations’). Thus the cancellation of tenancy of the draft khatiandars at the instance of the writ petitioners was required to be considered by the competent authority. 5. Then the Misc. Case No.5/2008 was registered and the Settlement Officer, Dhubri on 31.7.2008 noted that tenancy rights were accorded during 1982 and the same was cancelled on the basis of the objection petition Nos.210/211 in 1985. It was further noted that the draft khatians were cancelled but the khatiandars were in possession. However since there is no link between the possessors with the pattadars, it was observed that the tenancy right claimed by the private respondents is not established and accordingly the matter was disposed of on 31.7.2008, by the Settlement Officer, Dhubri. 6. The aggrieved group whose draft khatians were cancelled and who were in possession of the land then filed the Appeal before the Assam Board of Revenue

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(hereinafter referred to as ‘the Revenue Board’). Both parties were heard by the Revenue Board. The Revenue Board observed that record of rights of tenants are to be maintained under Chapter-X of the Tenancy Act and also under Section 40 of the Revenue Regulations. From the records it was culled out that the draft khatians were issued in the name of the forefathers of the respondents and the same was cancelled on the basis of the objection of the writ petitioners. But it was held that cancellation of khatians was ordered in contravention of the provisions of the Tenancy Act, without affording hearing to the affected occupiers/khatiandars. The Revenue Board thus noted that the names of the appellants were struck off from the record of rights, without adhering to the prescribed procedure. Consequently, through the impugned judgment dated 28.10.2009 (Annexure-10), the matter was remanded back to the Settlement Officer for a fresh decision on cancellation of the draft khatians of the private respondents, through entertainment of objection(s) from the side of the writ petitioners. 7. Mr. A. K. Purkayastha, learned counsel submits that the Settlement Officer has no power of review in the matter of correction of record of rights and therefore the petitioners question the logic of the direction issued by the Revenue Board. According to the petitioners, the cancellation of draft khatian was rightly ordered in the year 1985, by the Settlement Officer by accepting the objection(s) of the writ petitioners, since the private respondents had failed to establish their relationship under the patta holders. 8. On the other hand, Mr. MH Rajborbhuiya, learned counsel for the private respondents submits that the writ petitioners had no possession of the land. Moreover the draft khatians were issued to each of the private respondents in the year 1982, on the basis of their respective possession of the land. Therefore it is argued that cancellation of the khatian by entertaining the objections of the writ petitioners could not have been ordered, without affording hearing to the affected party. 9. Representing the State authorities, Mr. P.S. Deka, the learned Govt. Advocate highlights the procedure for entertainment of objection for correction of record of rights but it is conceded that hearing of the affected parties is an essential pre- requisite, for exercise of such powers. 10. The Chapter-VII of the Assam (Temporarily Settled Areas) Tenancy Rules, 1972 (hereinafter referred to as ‘the Tenancy Rules) prescribe the procedure for preparation of record of rights. After primary survey, draft chitha is to be prepared recording those who are in actual possession. Thereafter publication of the draft is to be made under

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Rule 32 and objection if any, is to be considered under Rule 33, whereafter the final record is to be prepared. It is specifically provided in Rule 33 of the Tenancy Rules that when objection is made by any party, hearing must be afforded to all the interested parties and only thereafter, decision can be remanded on the objection. 11. But in the instant case, the two objection(s) given by the writ petitioners were decided in favour of the objectors without affording any hearing to the affected party (private respondents) and therefore it is apparent that the right of the respondents as holders of draft khatian was interfered in derogation of the prescribed procedure, under the Tenancy Rules. The learned Revenue Board noted the above deficiency in entertainment of objection of the writ petitioners and accordingly remanded the matter back to the Settlement Officer for a fresh decision after following the prescribed procedure. 12. The basis on which the Settlement Officer was ordered to re-do the exercise can’t be considered as a proceeding for exercise of review powers in as much as, the matter is being directed to be reconsidered by a higher authority after noting that the affected parties were not heard earlier, when the objection(s) were allowed. When the authority is not exercising review power but is simply acting on order of the higher authority, the legal argument relating to exercise of review power is found to be misconceived and the same is therefore rejected. 13. From the legal perspective, I find the direction of the Revenue Board to be reasonable, as it provides for an opportunity to be given to the affected party by the Settlement Officer, before any adverse order is passed against the draft khatiandars. Therefore no merit is found in this case and accordingly the same is dismissed. The writ petitioners as well as the private respondents should therefore be afforded all due opportunities by the Settlement Officer and the fresh decision should be taken on merit by scrupulously adhering to the legal procedure for cancellation of khatians. It is ordered accordingly. 14. With the above order, the petition stands disposed of without any order on cast. The Registry should return back the LCR forthwith.

JUDGE

Barman.

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