THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)

WP(C) No. 3586 of 2011

1. Md. Tahidur Rahman alias Tahidur Rahman Choudhury, S/O Late Idris Ali, Vill & PO-Sutarkandi, Dist.-Karimganj, Assam. 2. Musstt. Hawarunnessa, W/O Md. Tahidur Rahman, Vill & PO-Sutarkandi, Dist.-Karimganj, Assam. 3. Md. Abdul Ahad Choudhury, S/O Md. Tahidur Rahman Choudhury, Vill & PO-Sutarkandi, Dist.-Karimganj, Assam. ……Petitioners. Versus 1. State of Assam, Represented by the Principal Secretary to the Govt. of Assam, Revenue Department, Dispur, Guwahati-6. 2. The Commissioner & Secretary to the Govt. of Assam, Revenue (Settlement) Department, Dispur, Guwahati-6. 3. The Deputy Commissioner, Karimganj District, Karimganj, Assam. 4. The Settlement Officer, Karimganj District, Karimganj, Assam. 5. The Circle Officer, Karimganj Sadar Circle, Dist.-Karimganj, Assam...... Respondents.

For the Petitioners : Mr. N. Dhar, Mr. B. Malakar, Mr. S. Chakraborty, Mr. A.T.H. Ahmed. ….Advocates.

For the Respondents : Mr. P.S. Deka, GA, Assam. ….Advocate.

BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY

Date of Hearing and Judgment : 24th May, 2016

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JUDGMENT AND ORDER (ORAL)

Heard Mr. B. Malakar, the learned counsel appearing for the petitioners. Also heard Mr. P.S. Deka, the learned Govt. advocate representing the respondents.

2. The first two petitioners are husband and wife and the 3rd petitioner is their son. They claim to be tenants in possession of the land in Karimganj district, owned earlier by the Zamindar, Dhirendra Roy Astapati. Under the Assam State Acquisition of Zamindaris Act, 1951 (hereinafter referred to as the “Zamindari Act”), all rights and interest of the proprietor of the concerned estate, vested upon the State Government and accordingly those lands were declared to be Govt. land under the Zamindari Act. Placing reliance on Dhakhila under the Sylhet Tenancy Act, the petitioners claim tenancy rights over the Zamindar’s land. But the representation filed by the petitioners to correct the land records from Govt. khas land to the tenanted never came to be considered by the authorities.

3. Claiming to be in occupation of the acquired Zamindari land, the petitioners seek compensation for the loss suffered by them during the 2010 floods, in Karimganj district. In order to establish that they suffered flood damage, the petitioners seek direction for survey and demarcation of the land, since the natural boundaries got obliterated during the high floods.

4. Large area of lands in the North Karimganj Development Block were utilized for Acqua Culture Development under the Employment Generation Mission Scheme, but most fisheries in the area were flooded over and damaged by flood. Therefore assessment of flood damage was made by the District Fishery Development Officer, Karimganj. But since the area is shown to be Govt. khas land and others are also claiming possession of the same very land as claimed by the writ petitioners, the issue of possession has become a matter of controversy.

5. The learned counsel Mr. B. Malakar submits that although the Zamindari land was declared to be Govt. khas land under the Zamindari Act, the petitioners applied for reversion of the land to the tenants and correction of the

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land records and according to the petitioners, this is a legitimate claim of the occupiers of the land.

6. But it is also seen from the writ petition itself that the petitioners not only applied for demarcation of their land, but also initiated a proceeding under Section 145 Cr.P.C. against a group of 9 persons led by Badrul Haque, which led to the registration of the Case No.217(M)/2011 in the Court of the Addl. D.M., Karimganj. On 05.05.2011 the Magistrate passed an order to attach the disputed land under Section 146 of the Cr.P.C., but in order to execute the attachment order, a further order had to be passed by the Magistrate on 09.05.2011, whereby the revenue staff as well as the BSF authorities were directed to verify the disputed land claimed by the 3rd writ petitioner Abdul Ahad Choudhury, in the Case No.217(M)/2011.

7. Mr. P.S. Deka, the learned Govt. advocate on behalf of the respondents submits that the concerned land was notified to be Govt. khas land after divesting from the Zamindar pattadar, by correction of the revenue records. Referring to the counter affidavit filed by the Circle Officer, Karimganj, Mr. Deka submits that the petitioners are not tenants under the erstwhile Zamindar, as their names have not been entered into the record of rights for the permanently settled Zamindari land. In fact, the land was earlier recorded in the name of the erstwhile Zamindar and the area is now to be treated as the Govt. khas land, as per the declaration made under the Zamindari Act. In fact, typed copy of the rent receipts annexed to the writ petition, are described to be doubtful, in the counter affidavit filed by the Circle Officer.

8. The Zamindari Act was enacted to provide for acquisition of permanently settled areas and constitutionality or legal validity of this Act cannot be questioned, under Article 31A of the Constitution. Section 3 of the Zamindari Act empowers the State Government to notify that, the right of the estate or tenure holder over Zamindari land, shall stand transferred to the State Government free from all encumbrances and the consequences of such notification are spelt out in Section 4 of the Zamindari Act. The Act specifies that all rights of the estate or the tenure holders over the land, vests absolutely in the State, but the tenants under the erstwhile proprietor can hold the land directly under the State, on the same terms. But the rent and other dues payable for the

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land will henceforth be paid to the State Government, under sub-section (6) of Section 4 of the Zamindari Act.

9. From the representation filed by the 3rd petitioner on 19.06.2008 (page-35) for correction of the land records after the Zamindari land was declared to be Govt. khas land, it can be gathered that the applicant’s name is not recorded as a tenant of the erstwhile Zamindar. The declaration of Govt. khas land was made in respect of the Zamindari land in the year 1967-68 itself and the averments of the Circle Officer in the counter affidavit being relevant on this aspect, are extracted herein below for ready reference:-

“…………. 4. That with regard to the statements made in paragraph 2 of the writ petition, the deponent states that the Record of Right in respect of permanently settled Estate areas of Karimganj Sub-Division (now district) was prepared and finally published in the year 1967-68. So, Zamindary records of pre-settlement i.e. Zamindary taluk No. Zamindary Patta No. as mentioned by the petitioner are not available in the office of the deponent. 5. That with regard to the statements made in paragraphs 3, 4, 5 and 6 of the writ petition, the deponent begs to state that the petitioners were not tenant, as such their name has not been recorded in the Record of Right in respect of land mentioned in the paragraphs of permanently settled Estate areas of Karimganj District during the preparation of Record of Right operation which was finally published in the year 1967- 68 as per provision of Sylhet Tenancy Act, 1936. The above land was recorded in the name of Ex-Proprietor and Govt. khas and also Khatian was issued in the name of individuals. The copy of Farog i.e. rent receipt issued by the Zamindar as annexed by the petitioner is doubtful. Some land recorded as P.W.D. Road and River etc. Tenancy claimed by the petitioner over P.W.D. land and river does not arise as per Tenancy Act. The name of the mouja mentioned in the plaints of the above W.P.(C) is Gandhak, Pargana Kushiarkul. But the re-surveyed name of the Mouza is Gandhak Bahubal, Pargana Kushirkul. ………….. 7. That with regard to the statements made in paragraph 8 of the writ petition, the deponent states that in the plaint of above writ petition the name of Mouza is mentioned as Mouza Kuriala but practically there is no Mouza named Kuriala under Karimganj Circle area. ……………” 10. The concerned lands in the Kushiarkul and Sadimapur Pargana comprised within Sutarkandi and Jarua Mouza, are shown in the revenue records

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as Govt. khas lands and importantly in the revenue records annexed to the counter affidavit, there is no mention of the names of the tenants. That is why the petitioners applied for correction of the land records when the concerned Zamindari land vested absolutely upon the State Government, under the Zamindari Act.

11. In order to make a legitimate claim for compensation as flood victims, it is necessary for the claimants to establish a legal right over the flood damaged land. But admittedly the concerned land is reflected as Govt. land after the tenure holders’ right got transferred to the Government, under the Zamindari Act. Moreover the claim of being a tenant under the Zamindars is strongly disputed as the land records do not reflect any tenant’s name for the acquired land. Even the possession claimed by the petitioners is contested, as can be seen from the case filed by the petitioners against Badrul Haque and 8 others, which led to the registration of the Case No.217(M)/2011, under Section 145 of the Cr.P.C. Therefore it cannot be said with certainty that the land damaged by flood was the land, under possession of the petitioners.

12. When the petitioners have failed to establish their claim as tenants under the erstwhile Zamindar and they had to initiate a proceeding under Section 145 Cr.P.C. against 9 persons, in the absence of any conclusive material, it will not be appropriate for this to direct the authorities to pay compensation to the petitioners as flood victims. Moreover, there is nothing on record to show that after the land vested absolutely on the State under the Zamindari Act, the petitioners as tenants of the erstwhile Zamindar, had paid the dues under sub- section (6) of Section 4 of the Zamindari Act, to the State coffer. At this stage, the petitioners have neither been declared as tenants nor they have been conferred the right of the land holders, under the provisions of the Assam Land Holding (Adoption of Relationship under the Assam Land and Revenue Regulation, 1886 in the Acquired Permanently Settled Estates), Act, 1974 (hereinafter referred to as the “1974 Act”). Therefore unless the status of the petitioners are determined in respect of the acquired land, they can neither be treated as the tenants of the State Government under the Zamindari Act or they can be declared as the land holders under the 1974 Act. Only when legal rights

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over the land can be established through due process, the petitioners’ claim can have a legitimate basis and otherwise, their claim is legally untenable.

13. In view of above, I see no reason to grant any relief to the petitioners in the present case and consequently, the writ petition is dismissed without any order on cost.

JUDGE Roy

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