Dimbeswar Datta and Others vs Deputy Commr. Sibsagar and Another

Deka, J.—This is an appeal on behalf of three persons who were refused by the Deputy Commissioner fresh settlement with regard to 4B 2K and 18L of land held by them formerly under an annual patta till 27-12-1943 when the Deputy Commissioner of Sibsagar, by virtue of the powers conferred upon him by Rule 75(A)(1) of the Defence of India Rules requisitioned the same for military purposes along with some other lands covered by periodic pattas standing in their names. In 1947, the lands were derequisitioned and possession and pattas were restored with respect to the lands covered by the periodic pattas but though the Appellants brought under possession the lands covered by the annual patta, no annual patta was re-issued in their favour. Subsequently, on repeated applications, the Deputy Commissioner passed an order on 27-4-52 rejecting the Appellants� prayer for re-issue of the annual patta in their names. There was an application for revision of the said order which was also rejected by the Deputy Commissioner by his order, dated 14-5-52. It transpired in the mean-while that an annual patta had been issued in the names of the Respondents with respect to the disputed land on 14-12-51 and the Appellants pleaded ignorance as to the issue of that patta till their prayer for settlement was rejected.

The first contention raised before me was that there being no non-renewal notice served on the Appellants, their interests in the land covered by annual patta did not cease and the second contention was that the Appellants being in possession of the land since after the derequisitioning, the annual patta ought to have preferably been issued in favour of the Appellants.

The Deputy Commissioner was made Respondent No. 1 and the present patta-holder made Respondent No. 2 in this appeal. The Deputy Commissioner has submitted a report to the effect that the interests of the Appellants had ceased in the land along with the requisitioning in December 1943 and they had no subsisting interests in the land nor can they claim for issue of an annual patta in their favour even on the basis of unrecognised possession--which assertion is of course denied. The Deputy Commissioner enjoys wide discretion in the matter of settlement of khas lands and in his estimation, he has made a right settlement with a person who is a landless inhabitant of the province.

Mr. Phukan appearing for the Respondent No. 2 contends that the appeal to this Court is presented out of time inasmuch as the appeal was presented on 23-6-52, whereas the order of settlement in favour of Respondent No. 2 was passed on 14-12-51 and the second branch of his contention was that on merits the Appellants have no case and the Deputy Commissioner had enough discretion to settle the land with any person he considered fit and this Court should not normally interfere with the discretion so exercised by the Deputy Commissioner. In support of the first branch of Mr. Phukan''s argument, he relied on the decisions of Thadani, C.J. reported in--Md. Masraf Ali v. Deputy Commr. Nowgong'' AIR 1951 gau 44 (A) and--''Routmal Bherudan v. Province of Assam'' ILR (1949) 1 Gau 498 (B) and in support of his second contention, he relies on a number of decisions of this Court passed by the two outgoing Chief Justices and these decisions are in--''Nandeswar Chakravarty v. Govt. represented by Deputy Commr. Lakhimpur'' ILR (1949) 1 gau 484 (C)--''Saru Ram v. Jodu Ram ILR (1949) 1 Gau 511 (D) and ''Surendra Nath v. Madhusudhan Das'' ILR (1949) 1 Gau 523 (E). In my opinion, both the cases relied on by Mr. Phukan on the point of limitation can be distinguished. In--''AIR 1951 Gau 44 (A)'', the point of limitation is not a subject of consideration but the appeal has been disposed of in consideration of the merit and in ''ILR (1949) 1 Gau 498 (B)'', the earlier order to the prejudice of the Appellant was passed with the knowledge of the Appellant but in this case, Mr. Ghose''s contention has been that the order of settlement in favour of Respondent No. 2 was not known to the Appellants and they were aware of it when their application for settlement was dismissed on 27-4-1952 and the appeal has been filed within the period prescribed from that date.

With regard to the second objection raised by Mr. Phukan, I am inclined to hold in favour of the Respondents. Mr. Ghose has very ably argued that even for the purpose of requisitioning under the Defence of India Rules, the Land Acquisition Act is applicable to properties that are acquired for a temporary purpose or in other words, requisitioned. Section 36(2) , Land Acquisition Act applies which provides : that on the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage if any, done to the land and not provided for by the "agreement, and ''shall restore'' the land to the persons interested therein. His contention has been that in this case too, Sub-section 2 of Section 36 has application and as a matter of fact, the patta-holders were restored to the possession of the land and the revenue authorities are bound to recognise the fact of possession and issue patta in their favour in terms of the possession. Clause 3 of the Annual Patta provides that unless the Government serve on the party with written notice to the effect that a renewal of the lease is not desired in respect of all or any of the lands covered by the patta, the annual lease should be renewed for another year or in other words, the interests of the annual pattadar can be terminated only by issue of non-renewal notice by the Government and not otherwise.

I have, given my best consideration to this argument addressed by Mr. Ghose, but in my opinion, the case is governed by Clause 5 of the Annual Patta which reads as follows:

Should the scheduled lands or any portion of them be required for a public purpose during the currency of this lease, such lands or such portion of them shall be taken away from you and in any such case you shall only be entitled to receive compensation from Government for growing crops, fruit trees and buildings actually standing on the land taken. You shall not be entitled to any compensation for the land itself which is the property of Government alone and not yours.

Mr. Ghose argued that Clause 5 of the Patta was restricted in its operation to cases of requisition for other purposes than under Defence of India Rules but to my mind the argument is fallacious. The annual patta having prescribed the right to possess the land only for a year, the interest of the patta-holder in the land does not extend beyond that year and if during the currency of the lease, a portion or entire area of the land covered by the lease is taken away by the Government for public purpose after paying compensation, as in this case, then Clause 5 of the patta comes into operation and no interest of the patta holder subsists with respect to that portion of the land so taken away by the Government and he cannot ask for renewal of the lease nor for a notice, as mentioned in Clause 3 of the patta. In my opinion, the terms of settlement should get priority over some other enactment and therefore, Section 36(2), Land Acquisition Act cannot be construed to have done away with the effect of Clause 5 of the patta itself, even if applicable but in my opinion it is not. Further, the requisitioning of the land for military purposes is a public purpose as mentioned in Clause 5 of the lease and I see no reason for making an exception. In this view, Mr. Ghose''s contention that the Appellants were entitled to notice of non-renewal or to re-issue of the patta for the de-requisitioned lands covered by the old annual patta, fails.

With regard to the second branch of Mr. Ghose''s contention that the Appellants should have been granted an annual patta on the basis of their possession, I must say that there are ample authorities of this Court wherein it has been held that the Deputy Commissioner really enjoys wide discretion in the matter of settlement of khas lands or lands not covered by any annual pattas and the High Court should be reluctant to interfere with those orders in its revenue jurisdiction. Here, the Deputy Commissioner has certainly settled the land with somebody whom he considered to be suitable and I am very reluctant to interfere with the order passed. The result is that the appeal fails but in the present circumstances, I allow no costs.