Sri Durgadhar Sonowal vs Deputy Commissioner and Others

K.N. Saikia, C.J.—The Petitioner impugns the judgment of the Assam Board of Revenue dated 20-7-87 passed in Case No. 72 E (L) of 1987 allowing the appeal, setting aside the settlement of the North Lakhimpur C.S. No. 1 which was in favour of the Petitioner, and settling that C.S. Shop with Respondent.

The instant Petitioner was Respondent No. 1 and the instant Respondent No. 3 was the Appellant before the Board.

Mr. S.N. Bhuyan, the learned Counsel for the Petitioner (sic)sails the impugned judgment on various, grounds, namely, that on the date of hearing the Appellant before the Board produced a certificate dated 14.6.87 from the Mouzadar of Tel(sic) Mouza showing the relationship between the Appellant and his financier Sri Kushal Datta. The Appellant also produced pass books on the date of hearing i.e. 6-7-87 and these pieces of additional evidence were received by the Board in (sic)plation of Regulation 17 of the Assam Board of Revenue Regulation, 1963 and in violation of the principle of natural justice which have prejudiced instant Petitioner''s case before the Board wherefore the impugned judgment is liable to be set aside.

Mr. K.C. Das, learned Counsel for the instant responded No. 3 rebuts Mr. Bhuyan submitting that the Mauzadar''s certificate was no doubt produced before the Board on the date of hearing, but the learned Counsel for the instant Petitioner before the Board never objected to the production of this certificate. As regards the pass books Mr. Das submits that the pass books were submitted before the Board on the date of hearing, pursuant to the order of the Board to produce them which order was at the instance of the Petitioner and on his application.

Regulation I, 1963 framed u/s 13 of the Assam Board Revenue Act, 1962 and as such applicable to the Board provides as follows:

Fresh evidence- (1) No party to an appeal or an application stall be entitled to adduce fresh evidence whether oral or documentary, before the Board. The Board may, however, at any stage accept documents, if it is of opinion that they are necessary for deciding the application;

Provided that the other party shall in that case be entitled to produce rebutting evidence.

A party desiring to produce such documents or affidavit shall file three copies of the same on a date at least seven days ahead of the date of hearing and shall at the same time serve an additional copy thereof on each of the Respondents or opposite parties.

The Board may direct any authority against whose order an appeal or application is made to make such further investigation or to take additional evidence directly or through any subordinate authority as it may think necessary.

Where fresh evidence has been adduced under Sub-regulation (1) or a further investigation is made or additional evidence is taken under Sub-regulation (3), the parties shall be entitled to address the Board on points arising out of the fresh or additional evidence or further investigation.

From the above provisions, it is clear that no party to an appeal or an application, and for that matter, the Appellant in the case before, the Board was not entitled to adduce fresh evidence, oral or documentary, before the Board. The Board, however could at any stage accept documents tendered by the Appellant or could call for any documents, if it was of opinion that they were necessary for deciding the application. In case of such acceptance the other party, should in that case be entitled to produce rebutting evidence. As the Mauzadar''s certificate was admittedly filed on the date of hearing the Board, therefore, could accept the certificate only if it, was of the opinion that it was necessary for deciding the appeal, and the Respondent therein was entitled to produce rebutting evidence. No opinion that the document was necessary in deciding the appeal was recorded by the Board. Mr. Das submits that the certificate of the Mauzadar only clarified the position regarding relationship between the Appellant and his financier on which there was already a contrary report of the Sub-Deputy Collector. The Board, however, has not relied on those affidavits. On the other hand, in paragraph 11 of the judgment the Board observed that the S.D.C. did not make any enquiry personally and only derived the knowledge from the report of the Lot Mondol while the Mouzadar Sri Amullya Bhuyan certified that the Appellant Duma Kanta Dutta was a resident of his Mouza and he knew him well and his financer Kushal Dutta was the son of the elder sister of the father of the Duma Kanta Dutta (paternal aunt) and as such was his cousin. The board observed that the Mouzadar was the best person to know about the people living within his Mouja and that his knowledge about them was direct and carried sufficient weight. There is, therefore, no doubt hat the Board relied heavily on this certificate. The Board has observed that the Respondent (before it) had not controverted the certificate of the Mouzadar, the copy of which was also finished to him. The Board did not mention when the copy was furnished and also did not record that opportunity was given to the Respondent and that the latter failed to utilise the opportunity. The Regulation 17(2) clearly says that a party desiring to produce such document or affidavit shall file three copies of the same on a date at least seven days ahead of the date of hearing and shall at the same time serve an additional copy thereof on each of the Respondents or opposite parties. The Board has not mentioned that the document was filed and copies were served 7 days ahead in compliance with this provision.

As regards the pass books Ms. Das submits that in (sic) 11 of the Appellant''s tender, he mentioned the name of his financier and also give the details of his financial capacity and mentioned one of his pass books. Counsel fairly admits that two other pass books produced at the time of hearing were not mentioned in col. 11 and also in the affidavits, and he had to produce those two piss books as directed by the Board on the date of hearing. In this case also since the additional pass books produced not earlier mentioned and referred to in any affidavit, this should also have been treated as additional evidence and the same provisions of law in Regulation 17 would apply to them. In Regulation 17 it is clearly provided that where fresh evidence has been adduced under Sub-Regulation (1) or a further investigation is made or additional evidence is taken under Sub-Regulation (3) the parties shall be entitled to address the Board in points arising out of the fresh or additional evidence or further investigation. So the parties right to adduce evidence before the Board and to address it on the points arising out of fresh evidence is very much there and for effectuation of this right the parties should have sufficient opportunity. It is not mentioned by the Board whether the documents had been filed at least 7 days ahead as per the above provision, and admittedly those were filed only at the hearing.

Mr. Bhuyan points out from the records of the case that an application was filed on 11.7.87 after the date of hearing (6.7.37) which said that on the date of hearing the Advocate for the Appellant produced one fair price shop license in the name of financier Shri Kushal Dutta, but due to inadvertence the Appellant omitted to file this document before the Board and hence he filed the aforesaid document of the Appellant, namely, the photostat copy of the fair price licence MLS 13/82 in the name of Shri Kushal Dutta. In the mergin of the application an order to file it has been recorded, Normally after the hearing is over there should be no nexus between the Board and the party even through counsel without information to the other side If anything of the kind happens, natural justice requires that the other party should also be given an opportunity to make submissions on the question. Nothing of the kind was done in the instant case.

In paragraph 11 of the judgment, the learned Board has referred to the financier running a fair price shop on the licence granted by the Government which according to the Board showed the financier was not an undesirable person.

Mr. Bhuyan submits that there have been amendments in the Assam Excise Rules in 1981 by notification No. Ex. 200 78/127 dt. 1.9.1981, and that the Rules as amended should, be taken into consideration and applied to the facts of the case by the Board, We do not consider it necessary to state that law always means law as it prevails at the relevant time.

Regulation 17 embodies the principle of natural justice that the other party should given reasonable opportunity of being heard. No party should be allowed to be taken by surprise at hearing in Court.

As we have found that there has been clear violation Regulation 17 of the Assam Board of Revenue Regulation, 1963 as stated above and consequent violation of the principle of natural justice, we have no other alternative but to set side the impugned judgment of the Board, which we hereby (sic) and remand the appeal to the Board for decision in accordance with law, in the light of the observations made hereinabove. Since the judgment has been set aside the Board shall decide the appeal afresh after giving fresh notice, hearing and opportunity to the parties.

Let the parties appear before the Board on 17.8.87 to receive instructions regarding hearing. Till then status quo as of today us regards the possession of the North Lakhimpur C.S. Shop No. 1 shell continue. It would be open for the parties to pray before the Board for appropriate interim order, if they are so advised.

In the result, this petition is allowed. There is no order as to costs. Send down the case records immediately.