Radha Kanoo and Others vs The Assam Board of Revenue and Others

S.K. Homchaudhuri, J.—This petition is directed against the proceedings of Encroachment Case No. 5/83 and Encroachment Case No. 57/86, initiated for eviction of the Petitioners from the land in their occupation and the common Judgment dated 15.7.87 passed by the learned Assam Board of Revenue in case No. 155 RA (Dibrugarh)/86 and No. 383 RA (Dibrugarh)/86.

Petitioners'' case is that their predecessor-in-interest Naresh Kanoooriginally took settlement of 1 Bigha of fallow land from Rupai Tea Company in the year 1939 on condition of payment of annual rent @ Rs. 25/- and after getting settlement the predecessor-in-interest of the Petitioners reclaimed it for cultivation and habitation. He grew vegetables and built a dwelling house thereon. Thereafter between the periods from 1962 to 1966 the predecessor-in-interest of the Petitioners purchased possessory right of the adjoining plots of land belonging to the Rupai Tea Company from the occupiers thereof and continued to possess the same, The predecessor-in-interest of the Petitioners thereby came to occupy a total area of land measuring 8 Bighas 4 Kathas 15 Lechas owned by the Rupai Tea Company Ltd. and continued to possess the same and after his death the Petitioners are possessing the said land.

Petitioner''s further case is that in the year 1967, local Revenue authority after survey of the plot of land in occupation of the predecessor-in-interest of the Petitioner, being satisfied that he had been possessing the said land as cultivating tenant under the owner, Rupai Tea Company Ltd., prepared a draft records-of-right and issued Kacha Rayati Khatian in his favour in respect of the land. In the year 1968, the Rupai Tea Company having offered to sell the said land the predecessor-, in-interest of the Petitioners paid Rs. 1500/- towards agreed price, of the land. In the meantime, a proceeding under provision of the Assam Fixation of Ceiling on Land Holding Act, 1956, hereinafter referred to as the Act, having been initiated to acquire the surplus land held by Rupai Tea Company, final Riyati Khatian in favour of the predecessor-in-interest of the Petitioners in respect of the land measuring 8B-4K-15L as tenant, under the Rupai Tea Company was not issued. Besides, the registered sale deed of transferring ownership right of the land was also not executed by the Rupai Tea Company. After conclusion of me proceeding under the provision of the Ceiling Act, the land in possession of the predecessor-in-interest of the Petitioner along with other land of Rupai Tea Company vested in the Govt. The predecessor-in-interest of the Petitioners beings a cultivating tenant under the original owner, Rupai Tea Company, in respect of the land made an application for settlement thereof. In the year 1981, some persons of the locality applied to the Revenue authority for allotment of a portion of the land in occupation of the predecessor-in-interest of the Petitioners for Rupai Siding High School. The Sub Deputy Collector, Doom Dooma submitted a report in connection with the said application. In the said report the S.D.C. amongst other stated that the predecessor-in-interest of the Petitioners had been in occupation of the land under the Rupai Tea Company on payment of rent. The predecessor-in-interest of the Petitioners filed objection, against the prayer for allotment of the land to others. Inspite of all these materials in favour of the predecessor-in-interest of the Petitioners, the Sub-divisional Officer, Tinsukia arbitrarily initiated a proceeding for ejectment of the predecessor-in-interest of the Petitioners from the land in his occupation in the exercise of powers under Rule 18 of the Settlement Rules and Encroachment Case No. 5/83 was registered. According a notice Rule 18(3) of; the Settlement Rules was served on the predecessor-in-interest of the Petitioners asking him to vacate the land within 15 days. The predecessor-in-interest of the Petitioners filed an application before the Sub-divisional Officer, Tinsukia on 16.5.83 against the proceedings, asserting malt that he been in occupation of the land as cultivating, tenant under the original owner the Ruapi Tea Company Ltd.. On enquiry the predecessor-in-interest of the Petitioners found that he had been assessed to pay Touzi Bahira Revenue in respect of the land in his occupation for the year 1981. The predecessor-in-interest of the Petitioners cleared the Touzi Bahira Revenue on 29.8.84 due on and from 1981, On 6.3.85 the S.D.O. Tinsukia however directed the S.D.C. Doom Dooma to carry out order as per the notice dated 10.5.83 in Encroachment Case No. 5/83, Late Naresh Kanoo the predecessor-in-interest of the Petitioner preferred an appeal before the Deputy Commissioner, Dibrugarh against the order dated 6.3.85 passed by the S.D.O. Tinsukia the appeal was admitted and ad interim order staying eviction was passed by the Deputy Commissioner. By order dated 5.5.86 the Deputy Commissioner dismissed the appeal and vacated the ad-interim order of stay. Against the order of dismissal of the appeal, late Naresh Kanoo preferred an appeal in the Assam Board of Revenue which was registered as Appeal No. 155 (RA (Dib)/86 and interim order was passed to maintain status quo pending disposal of the appeal by the learned Assam Board of Revenue. During pendency of the said appeal Naresh Kanoo died and the Petitioners who are heirs/legal representatives of Naresh Kanoo were substituted as Appellants.

On 1.10.86, the Petitioners were served with another notice under Rule 18(3) of the Settlement Rules, asking them to vacate 3B 3 K 12 L of land which falls within the total area of land measuring 8B 4 K 151 in their occupation. The said notice was issued in respect of Encroachment Case No. 57/86. The Petitioners preferred an appeal against the said notice, dated 1.10.86, issued in respect of Encroachment Case No. 57/86 and the learned Assam Board of Revenue admitted the appeal and the appeal was registered as Appeal No. 353 RA (Dib)/86. The learned Assam Board of Revenue also passed ad interim order directing to maintain status quo till disposal of the appeal. Both the appeals were heard together and after conclusion of hearing, the learned Assam Board of Revenue by the impugned common Judgment dated 15.7.87 dismissed the appeals, The Petitioners have, thereafter, approached this Court in tins writ petition.

The Respondents have not filed any counter disputing the averments made in the writ petition. On perusal of the records; we find that in the appeals similar averments that Ram Kanoo originally took lease of a part of fallow land measuring 1 bigha from the Rupai Tea Co. Ltd. in 1939 cultivated the land - built his dwelling house on the part thereof and during the period of 1962 to 1966 by purchasing the possessory right of the adjoining plots of land from the occupiers thereof belonging to Rupai Tea Company he came to possess a total area of land measuring 8 bighas, 4 kathas, 15 lechas and that in 1967 after making survey the settlement authority issued kaccha Rayati Khatian in respect of the land in favour of Late Ram Kanoo who also ultimately purchased ownership right from the Rupai Tea Company in the year 1968 on payment of Rs. 1500/-. All these facts were not disputed in the parawise comments filed by the Deputy Commissioner in the appeals pending before the learned Assam Board of Revenue. However, the Deputy Commissioner took the legal plea that issuance of kacha-Khatian did not confer any tenancy right on the occupants of the land belonging to Rupai Tea Company.

We have heard Mr. B.C. Das, learned Counsel for the Petitioner and Mr. B.B. Narzary, learned Govt. Advocate. The learned Assam Board of Revenue dismissed the appeal holding:

On perusal of the records, it is found that neither in the appeal petition, nor in the rent receipt and in agreement of same, particulars of the land have been furnished. A typed paper alleging receipt of rent of Rs. 100/- and another typed paper showing to have received Rs. 1500/- by the acting Manager have been filed. These papers do not bear anybody''s signature except the typed words. No description of land whatsoever and the originals have not been produced or shown to the Board. So the alleged rent receipt and the agreement of sale are not acceptable.

Encroached dags are 317, 318, 319 and 324 of village Oughri, Mouza Hapjan. On Dag No. 319 a kacha Khatian was issued. This Dag is trade site where tenancy Act is not applicable. Moreover Khatcha Khatian unless followed by Final and Pucca Khatian is not a valid document. So this claim of right of tenancy is also not acceptable. Moreover rent staled to have been paid for 4 years @ Rs. 25/- should have been Rs. 100/-. From the typed sheet it appears that Rs. 125/- was paid for 4 years which is at variance with the claim of the Appellant.

Mere payment of Tauzi Bahi Revenue does not confer cither the right of a settlement holder or laud holder. Tauzi Hahi Revenue is realised from the encroachers as a measure of penalty. Dag No. 324 has been reserved for an M.E. School.

From the Sub-Deputy Collector''s report on Encroachment Case No. 57/86 it appears that the Appellant is not landless. He has got 18 bighas of patta land at village Bishakupi and has encroached sarkari land in violation of Rule 16 of the rules framed under the Assam Land and Revenue Regulation 1886 and liable to be evicted.

The Petitioners have assailed the impugned proceedings of Encroachment Cases No. 5/83 and No. 57/86 as well as the impugned Judgment passed by the learned Assam Board of Revenue mainly on the following grounds-

(i) Undisputedly the predecessor-in-interest of the Petitioners had been in occupation of 1 Bigha of land out of 8 Bigha 4 Katha and 15 Lechas since 1939 on payment of rent to the proprictor/landholder namely, Rupai Tea Company. It is also not disputed that the predecessor-in-interest of the Petitioners came to possess the adjacent land measuring 7 Bighas 4 Kathas 15 Lechas after purchasing possessory right thereof during the year 1962-66 which belonged to Rupai Tea Company. In the year 1967 the Settlement and Revenue Authority after survey found the predecessor-in-interest of the Petitioners had been in occupation of land measuring 8B 4K 15 L and that being primafacie satisfied that he was in occupation of the said area of land as cultivating tenant under the Rupai Tea Company prepared draft record of right under the provision of the Assam (Temporary Settled Districts Tenancy) Act, 1935, hereinafter mentioned as the Tenancy Act, and issued kacha Tenancy Khatian in favour of the predecessor-in-interest of the Petitioners in respect of the land. After the Govt. has acquired land along with order land under the provision of the Ceiling Act, no doubt the land vested in the Govt., but u/s 16 of the Ceiling Act the predecessor-in-interest of the Petitioners and after his death the Petitioners are entitled to get settlement of the land under the terms and conditions prescribed by law;

(ii) Neither the predecessor-in-interest of the Petitioners nor the Petitioners have been in unauthorised occupation of the land in question (measuring 8B, 4K, 15L) hitherto belonged to the Rupai Tea Company and as such the proceedings of Encroachment Cases No. 5/83 and No. 57/86 under Rule 18 of the Settlement Rules are misconceived, arbitrary and without jurisdiction;

(iii) The finding of the learned Assam Board of Revenue that the Petitioners were eneroachers within the meaning of Rule 16 of the Settlement Rules is wholly perverse inasmuch as materials on record clearly establish that since long the predecessor-in-interest of the Petitioners had been in occupation of the land as cultivating tenant and/or at any rate possessing the land with due permission of proprietor/land holder, namely Rupai Tea Company, on payment of rent for long time and the subsequent acquisition of the land under the Land Ceiling Act cannot convert the authorised occupant as an encroacher thereof.

(iv) Finding of the learned Assam Board of Revenue dial Touji Bahira Revenue paid by the predecessor-in-interest of me Petitioners as well as by the Petitioners since 1981 have been realised by way of penalty for unauthorised occupation of the land is wholly arbitrary and erroneous and misconceived.

(v) Section 12 of the Land & Revenue Regulations having conferred the power to the State Govt. to frame Rules for ejectment of any person who has been entered into; unauthorised occupation of Govt. land, the Predecessor-in-interest of the Petitioner and after his death, the Petitioners having never been in unauthorised occupation of the land, initiation of proceedings for ejectment of the Petitioners in the exercise of power under Rule 18 of Settlement Rules of ejectment of the Petitioner, is misconceived, illegal and without jurisdiction.

The Petitioner has also challenged the validity of the Rule 18 of the Settlement Rules on the ground of arbitrariness and beyond rule making power conferred u/s 12 of the Assam Land and Revenue Regulations.

On behalf of the Respondents it has been submitted that the Petitioners not having got pucca tenancy khatian the learned Assam Board of Revenue has rightly held that the Petitioners Were not cultivating tenants of the land under the Rupai Tea Company and as such, they were not entitled to get settlement u/s 16 of the Ceiling Act. It has also been submitted that the learned Board of Revenue committed no error apparent on the face of the records in passing the impugned Judgment.

We have considered the submission made on behalf of the Petitioner as well as on behalf of the Respondents and have perused the materials on record. On the question of validity Of the Rule 18 of the Settlement Rules we do not propose to go into the question, since no notice was issued to the learned Advocate General we leave this point Open to be decided in future in an appropriate case. Admittedly the predecessor-in-interest of the petitioners had been in occupation of the land for a long time and in the year 1967 the Settlement and Revenue authority after enquiry was prima facie satisfied that the predecessor-in-interest of the Petitioners had been in occupation of the land measuring 8B 4K 15L as cultivating tenant under the proprietor/land holder namely, Rupai Tea Company, prepared a draft record of right under provision of the Tenancy Act and issued Kacha Khatian in favour of the predecessor-in-interest of the Petitioner in respect of the land. It is not the case of the Respondents that the original owner Rupai Tea Company submitted objection before the Settlement Officer against issuance of Kacha Rayati Khatian showing predecessor-in-interest of the Petitioners as tenant of the land in his occupation. Besides, u/s 12 of the Ceiling Act, the amount of compensation to be awarded for the acquired surplus land is to be apportioned between the owner and tenant of the land. It can therefore, be safely presumed that in the course of, acquisition of me surplus land of the Rupai Tea Company under the provision of'' the Ceiling Act the Collector must have recorded the nature of right of the occupants of the surplus land, particularly in respect of the land in occupation of the Petitioners. Withholding of the records of the Land Ceiling Proceedings of the surplus land of Rupai Tea Company by the Deputy Commissioner gives rise to the presumption that had the relevant records been produced, it would have disclosed that at the time of acquisition of the land under the Ceiling Act, the predecessor-in-interest of the Petitioners had been in occupation of the land as a cultivating tenant.

Under the aforesaid facts and circumstances, the Petitioners'' contention that their predecessor-in-interest had been in occupation of the land as a cultivating tenant at the tune of acquisition thereof under the Ceiling Act and the Petitioners are entitled to get settlement oh he land u/s 16 of the Ceiling Act subject to maximum of 50 bighas, has force.

Materials on records disclose that the predecessor-in-interest of the Petitioners had not been in unauthorised occupation of the laud of Rupai Tea Company at the time of acquisition thereof under the Ceiling Act. A person in authorised occupation of a plot of land, belonging to other at the lime of acquisition thereof under the Ceiling Act, cannot become an unauthorised occupant or encroacher thereon just, because of the acquisition, the plot of land vests m the Govt. Rule 16 of the Settlement Rules forbids persons from entering into Govt. Khas land until issue of lease. In the instant case undisputedly the predecessor-in-interest of the Petitioners hail been in authorised occupation of the plot of land in question at the time of acquisition thereof under the provision of the Ceiling Act. As such, the finding of the learned Assam Board of Revenue that the Petitioners are encroachers in the plot of land measuring 8 Bighas and odd, is arbitrary and perverse.

Section 12 of the Assam Laud and Revenue Regulations, 1886, empowers the Govt. to make rules for ejectment of any person who has entered into unauthorised occupation of Govt. Khas land. The rule framed for ejectment, must be confined within the powers conferred u/s 12 of the Regulation. Section 12 of the Regulation having authorised Govt. to make rules for ejectment of my person who has entered into unauthorised occupation of Govt. land, the provision of Rule 18 of Settlement Rules framed for that purpose, in our opinion, can be applied for ejectment only of persons who are in unauthorised occupation of Govt. land. It naturally follows that a person in occupation of a plot of land although may not be proprietor, land holder or settlement holder thereof under the regulation, cannot be ejected by resorting to the summary proceeding under Rule 18 of the Settlement Rules, unless his occupation is found unauthorised.

Admittedly, the predecessor-in-interest of the Petitioner and after his death the Petitioners had been paying the Touji Bahira Revenue. We find it difficult to persuade ourselves to accept the view expressed in the impugned Judgment that Touji Bahira Revenue are realised from the encroachers has a measure of penalty for unauthorised occupation of Govt. land. It passes our comprehension as to how revenue realised for use and occupation of land at a fixed rate from time to lime can be termed as penalty. The learned Govt. Advocate has not been able to show any rules or even administrative instructions authorising realisation of Touji Bahira Revenue as penalty for unauthorised occupation of Govt. land. We are of the view that when a Govt. realises revenue from occupier of Govt. land even if it is termed as Touji Bahira Revenue, the person in occupation of the land should be deemed to be in occupation thereof with implied permission of the Revenue Authority and cannot be condemned as encroacher and/or unauthorised occupier.

For the reasons stated above, we hold that the impugned proceeding of Encroachment Case No. 5/83 and No. 57/86 for ejectment of the Petitioners from the land in that occupation measuring 8 Bighas 4 Kathas 15 Lechas are misconceived and without jurisdiction and liable 10 be quashed. In the year 1967 the Revenue authority having been prima facie satisfied that predecessor-in-interest of the Petitioners had been in occupation of the plot of land in question as cultivating tenant under the owner Rupai Tea Company and in fact issued Kacha Rayoti Khatian as contemplated under the provisions of the Tenancy Act, the predecessor-in-interest of the Petitioners deemed to be in occupation of the land as cultivating tenant at the time of acquisition thereof under the Ceiling Act and as such the Petitioners are entitled to get settlement of the land in their occupation.

The petition is, therefore, allowed. The impugned proceedings of Encroachment Case No. 5/83 and No. 57/86 are quashed. The impugned appellate Judgment dated 15.7.87 passed by the learned Assam Board of Revenue in Case Nos. 155 RA (Dib)/86 and 383 RA (Dib)/86 are set aside. We make no order as to costs.