THE STATE OF ASSAM vs MAHTAB HUSSAIN

1)Heard Mr. B. Goswami, the learned Additional Advocate General for the State of Assam (hereinafter referred to as “Addl. AGâ€), assisted by

Mr. C.K.S. Baruah, the learned Junior Govt. Advocate for the State of Assam. Also heard Mr. A.K. Bhattacharyya, the learned Senior Counsel,

assisted by Mr. A.K. Choudhury, the learned Counsel for the respondents No.2 to 5. The name of the respondent No.1 had been struck-off vide order

dated 28.05.2013. None appears on call for the proforma respondents No.6 and 7, as such, this appeal has been heard ex parte against them.

2) By this appeal, the appellants have assailed judgment and decree dated 05.05.2007, passed by the learned Civil Judge, Darrang, Mangaldai, in

Money Suit No.4/1995, thereby decreeing the suit for Rs.56,73,409/- with interest @ 6% p.a. from the date of filing of the suit till recovery, as well as

the costs of the suit. The said decree was granted as follows:-

a. Investment: Rs.14,73,409/-

b. For mental suffering, e.g. vexation, anxiety and worries: Rs.2,00,000/-

c. Actual expenses incurred in court litigation: Rs.1,00,000/-

d. Loss of future income and profit: Rs.30,00,000/-

e. Money spent on for maintenance and upkeep and on account of rearing fishes (1989-93): Rs.9,00,000/-

Total: Rs.56,73,409/- Â (Rupees Fifty six lakh seventy three thousand four hundred nine only).

CASE OF THE RESPONDENTS NO.2 TO 5:

3) The respondent No.2 and his father were the original plaintiffs in MS 4/1995. On death of the father and predecessor-in- interest of the respondent

No.2 (plaintiff No.1), the respondents No. 3 to 5 were impleaded as plaintiffs in the suit.

4) The case of the respondents No.2 to 5 in the plaint, in brief is that the respondent No.2 as well his father and predecessor-in- interest had applied

for settlement of 60 bigha Govt. land under various dags in Village No.1 Khanapara and No.2 Majarchuba under Sipajhar Mouza, Dist. Darrang, for

setting up a fishery, which was stated to be under their possession since the year 1970. The respondent No.2 was having a Degree of M.Sc.

(Agriculture) in Tea Husbandry and Technology, from the Assam Agriculture University, Jorhat, and had also undergone a fifteen days training

programme under the Fish Farmers Development Agency, Kamrup on improved method of pisciculture. It was projected that the respondent No.2

was a landless and an unemployed youth. On consideration of the proposal, the Deputy Secretary to the Govt. of Assam, Revenue (Settlement)

Department, informed the Deputy Commissioner, Darrang, Mangaldai that the Governor of Assam was pleased to allot waste-land measuring 49B-

4K-5L under various dags in Village No.1 Khanapara and No.2 Majarchuba under Sipajhar Mouza, Dist. Darrang, by way of reservation for the

Fishery Department for the purpose of allowing the respondent No.2 and his father and predecessor-in- interest to utilize the land for pisciculture, with

a condition that if the land was not utilized by the said two persons within a period of 2 (two) years, then the land would revert back to the Govt. It

was also provided therein that after full satisfaction of the said condition, settlement of the land with the respondent No.2 and his father and

predecessor-in- interest would be considered by the Govt. on recommendation of the Fishery Authority in due course of time.

5) The respondent No.2 and his father (plaintiff No.1) claimed to have incurred expenditure to the extent of Rs.14,73,409/- as per the two estimates

prepared by the District Fishery Development Officer, Darrang, Mangaldai.

6) Thereafter, vide letter dated 28.02.1990 (Ext.15) by the Commissioner & Secretary, Fisheries Department, the Deputy Secretary to the Govt. of

Assam, Revenue (Settlement) Department was requested to take necessary action for settlement of land in favour of the respondent No.2 and his

father. The said letter had been issued on the basis of recommendation made by the Director, Fishery and the Minister, Fishery, and with the approval

from the Deputy Secretary to the Govt. of Assam, Fisheries Department. However, the Deputy Secretary to the Govt. of Assam, Revenue

(Settlement) Department by his letter dated 27.03.1991 (Ext.18), reserved the land in question in favour of Bahgora Janakalyan Min Mahal Samity

(Proforma Respondent No.6) for carrying out pisciculture, by cancelling the previous order vide letter dated 18.09.1985.

7) Against the said order, the respondent No.2 and his father had preferred an appeal. By order dated 25.10.1991 (Ext.19), the Joint Secretary to the

Govt. of Assam, Revenue (Settlement) Department, informed the Deputy Commissioner, Darrang that the Governor of Assam was pleased to order

for settlement of 49B-4K-5L land to respondent No.2 and his father on realizing 25% premium on the market value of land fixed at Rs.5,000/- per

bigha and the order vide letter dated 27.03.1991 (Ext.18) was cancelled. Accordingly, the respondent No.2 and his father had deposited premium of

Rs.62,400/-. However, against the said order dated 25.10.1991 (Ext.19), the Proforma Respondent No.6 approached this Court by filing Civil Rule No.

4528/1991 and this Court by order dated 13.11.1991 (Ext.21), allowed the writ petition by directing the Government to hear the parties and pass an

order in accordance with law.

8) The Addl. Secretary to the Govt. of Assam, Revenue (Settlement) Department, upon discussing the rival contentions of the parties, by an order

dated 18.02.1993, inter-alia, cancelled the orders dated 10.09.1985 and 05.03.1992, allowing the settlement of the said fishery to the respondent No.2

and his father.

9) Hence, the present suit had been filed, seeking damages and compensation, which was decreed as indicated herein before.

SUBMISSIONS BY THE LEARNED ADDL. ADVOCATE GENERAL:

10) The learned Addl. A.G. had pressed all the grounds of appeal and elaborating on the same, it was specifically submitted that the respondents No.2

to 5 were claiming compensation on the basis of letter dated 10.09.1985, by which land was reserved for the Fishery Department, with further

allotment of land to the respondent No.2 and his father (plaintiff No.1) for the period of two year term only and, as such, they were not settlement

holders and, as such, the respondents No.2 to 5 had no right over the land beyond the term of settlement.

11) It was submitted that one of the grounds of appeal was that the respondents No.2 to 5 had not disclosed the particulars of development works

carried out in the fishery either in the plaint or in their evidence and, as such, the suit was decreed without any acceptable evidence. Moreover, there

was no evidence of mental suffering, expenditure incurred in court litigation, money spent on maintenance, future income, etc. and, as such, it is

submitted that the decree was granted on the basis of surmises and conjectures.

12) It was submitted that the premium of Rs.62,400/- paid by the respondent No.2 and his father (plaintiff No.1, since deceased) was returned, and

the same was accepted by the respondent No.2 and his father (plaintiff No.1) without any protest and, as such, the suit was not maintainable on facts

and in law and that the reliefs claimed in the suit was barred under principles of estoppel.

13) It was submitted that the respondents No.2 to 5 and their predecessor (i.e. plaintiff No.1) did not challenge the order dated 18.02.1993, passed by

the Addl. Secretary to the Govt. of Assam, Revenue (Settlement) Department. It is submitted that in order to realize damages and compensation, a

decree for declaration ought to have been prayed because unless the court renders a finding that the said order dated 18.02.1993 was bad in law, the

State cannot be made liable for payment of damages and compensation for the consequences of a lawful order. It was further submitted that there

was no breach of contract and, as such, no case was made out for payment of damages and/or compensation to the respondents No.2 to 5.

14) It was submitted that by the order dated 18.02.1993 (Ext.26), the competent authority had held that the allotment order was illegal because as per

the then existing 1972 Land Policy, the settlement of government waste land to individuals was totally banned and thereafter, 1989 Land Policy came

into force, as per which the maximum land permissible for “allotment†to a “family†was 5 bigha and, such proposal for settlement of 49B-

4K-5L land to the respondent No.2 and his father was illegal. Moreover, the proposal for land settlement was held to be contrary to the provisions of

Regulation 16 of the Assam Land & Revenue Regulation, 1886 read with Fishery Rules under Regulation 155 and 156 of the said Regulation. It was

further held that the initial allotment order dated 10.09.1985 (Ext.13) was illegal and contrary to law as envisaged under Regulation 157(4) of the said

1886 Regulation.

15) It was submitted that as the issue of allotment and/or settlement of land was a subject matter covered by the Assam Land & Revenue Regulation,

1886 the suit was expressly barred under Section 154 thereof, as such, it must be deemed that the civil court’s jurisdiction was expressly barred.

16) It was submitted that assuming but not admitting that the respondent No.2 and his father had made an investment of Rs.14,73,409/-, but as per

their own admission, they had enjoyed an earning of Rs.3.00 lakh per annum, as such, there cannot be any way that they had suffered any losses as

projected. It is also submitted that an estimate prepared by the Fishery Department could not take place of proof of investment and, as such, it is

submitted that the suit had been decreed on the basis of inadmissible evidence. In the said context, it is also submitted that the vouchers, etc., showed

investment and/or expenditure by a firm, which was not the plaintiff. Hence, it was submitted that the suit deserved to be dismissed by allowing the

appeal.

17) In support of his submissions, the learned Addl. AG has placed reliance on the following case citations:a. State of Meghalaya & Ors. Vs.

Joinmanick Nosmel Giri, AIR 1995 Gau 23.

18) The learned Senior Counsel for the respondents No.2 to 5 had submitted that being the plaintiff, the respondents No.2 to 5 and their predecessor

(plaintiff No.1) had the prerogative of making a choice of whether they wanted to go for restoration of land allotment/ settlement in their favour of to

file the present suit for realizing money from the appellants. It is strongly submitted that the appellants did not challenge the maintainability of suit on

the ground of lack of jurisdiction at the time of trial and, as such, no such issue was framed or decided by the learned trial court and, as such, it was

submitted that the learned Addl. A.G. was precluded from raising the said issue for the first time in appeal.

19) It was submitted that right to sue for compensation and damages was a right conferred by the Common Law and that the courts in India had

upheld such a right. Hence, if a citizen was aggrieved by infringement of their legitimate expectation, they had a right to approach the civil court for

remedy by way of claiming compensation and damages. It was also submitted that the submissions made on behalf of the appellant that unless a

declaration was prayed and allowed, no compensation or damages could be decreed was totally misconceived.

20) By referring to the provisions of Order XXVII Rule 1, it was submitted that the Deputy Commissioner, Darrang was not competent to represent

the appellants No.1 and 2, viz., State of Assam, represented by the Secretary, Revenue Department and The Secretary to the Govt. of Assam,

Revenue Department and similarly, it was submitted that the ADC, who deposed as DW-1 was also not competent to depose for any of the

appellants, including Deputy Commissioner, Darrang (defendant No.3) and, as such, it was submitted that it must be construed that there was no

defence by the appellants No.1 and 2, as such, the present appeal was liable to be dismissed. It is also submitted that the compensation and/or

damages was to be paid by the appellants No.1 and 2 and not by the Deputy Commissioner, Darrang (Appellant No.3), who had only contested the

suit. Hence, the present appeal was not maintainable on facts and in law.

21) It was submitted that notwithstanding that the document marked as Ext.14 was an estimate dated 06.10.1989, but it contained entries to show that

the respondents No.2 and his father had incurred the expenditure, which would bind the Appellants, as their own officials from the Fishery

Department had prepared the said estimate (Ext.14). Moreover, there was no cross examination to question the entries contained in any of the

exhibits. As such, the said estimate (Ext.14), backed by the various vouchers (Ext.22 and 23 Series), entries in the statement of expenses (Ext.24),

entries in the cash book (Ext.25), etc. duly proved the expenditures incurred by the respondents No.2 to 5 as well as their predecessor (plaintiff No.1).

It was submitted that the veracity of none of the exhibits proved by the respondents No.2 to 5 were questioned or suggested, rather by the letter of

recommendation (Ext.16), the appellants had re-confirmed the expenditures incurred by the respondents No.2 to 5.

22) It was submitted that the statements made in the written statement amounted to evasive denial, which also amounts to admission under Order VI

Rule 5 CPC, and that notwithstanding such admission, the respondents No.2 to 5 had duly proved their claim and, as such, it was submitted that the

present appeal be dismissed with cost.

23) In support of his submissions, the learned Senior Counsel for the contesting respondents has placed reliance on the following case citations:

a. Vishnu Dutt Sharma Vs. Daya Sapra (Smt.), (2009) 13 SCC 729;

b. Shree Shubhlaxmi Fabrics (P) Ltd. Vs. Chandmal Baradia & Ors., (2005) 10 SCC 704.

c. NMDC Vs. Satish Chand (Deceased) by LR. Ram Chand, (2003) 10 SCC 38.

d. Sarwan Singh Vs. State of Punjab, (2003) 1 SCC 240;

e. Raja Ram Kumar Bhargava (Dead) by LRs. Vs. Union of India, (1988) 1 SCC 681.

f. Dhulabhai etc. Vs. State of M.P. & Anr., AIR 1969 SC 78.

24) On the basis of the submissions made by the learned Addl. AG as well as the learned Senior Counsel for the respondents No.2 to 5, the following

points of determination arise for determination in this appeal, they are â€

a. Whether the jurisdiction of the civil court to entertain and adjudicate the suit filed by the respondent was barred under Section 9 CPC?

b. Whether claim for damages and compensation was without considering the consequences of the order dated 18.02.1993 (Ext.26), by arriving at a

wrong conclusion?

c. Whether the respondents No.2 to 5 have been able to establish their claim?

d. Whether the decree passed by the learned trial court is liable to be interfered with?

DISCUSSION AND DECISION:

25) On an application for settlement of land, the Assistant Settlement Officer, Mangaldai, had verified that the land measuring about 49 bigha 13

lechas, being marshy water-body was unfit for cultivation and the that the said land was not near any PWD Road or town and forwarded his

recommendation dated 09.08.1985 (Ext.1) to the Addl. Deputy Commissioner, Darrang, Mangaldai. Thereafter, the Deputy Secretary to the Govt. of

Assam, Revenue (Settlement) Department, informed the Deputy Commissioner, Darrang, Mangaldai that the Governor of Assam was pleased to allot

waste-land measuring 49B-4K-5L under various dags in Village No.1 Khanapara and No.2 Majarchuba under Sipajhar Mouza, Dist. Darrang, by way

of reservation for the Fishery Department for the purpose of allowing the respondent No.2 and his father and predecessor-in- interest to utilize the

land for pisciculture, with a condition that if the land was not utilized by the said two persons within a period of 2 (two) years, then the land would

revert back to the Govt. It was also provided therein that after full satisfaction of the said condition, settlement of the land with the respondent No.2

and his father and predecessor-in- interest would be considered by the Govt. on recommendation of the Fishery Authority in due course of time.

Thereafter, the District Fishery Development Officer, Darrang, Mangaldai prepared an estimate for investment of a sum of Rs.2,29,708/- on

09.08.1985. Thereafter, vide letter dated 25.06.1986 (Ext.17), the Director of Fishery, Govt. of Assam, requested the Secretary to the Govt. of

Assam, Fisheries Department to forward the proposal to the Secretary to the Govt. of Assam, Revenue Department for settlement of land to the

respondent No.2 and his father. Thereafter, the Deputy Commissioner, Darrang vide his letter dated 18.07.1987 (Ext.16), reported to the Deputy

Secretary to the Govt. of Assam, Revenue (Settlement) Department that the respondent No.2 and his father had utilized the said land for piscicultural

purposes. Thereafter on 06.10.1989, the said District Fishery Development Officer, Darrang, Mangaldai prepared another estimate (Ext.14) for

investment of a sum of Rs.14,73,409/-, mentioning therein that upto 1985, a sum of Rs.1,66,000/- was already invested and after 1985 till the said date,

a further sum of Rs.13,07,400/- had been invested and by a certificate dated 06.10.1989 (Ext.27), certified the expenditure of Rs.14,73,409/- by the

respondent No.2 and his father and also made a strong recommendation for settlement of the said land to them. Thereafter, on the basis of

recommendation made by the Director, Fishery and the Minister, Fishery, with the approval from the Commissioner & Secretary, Fisheries

Department, the Deputy Secretary to the Govt. of Assam, Fisheries Department, vide letter dated 28.02.1990 (Ext.15) had requested the Deputy

Secretary to the Govt. of Assam, Revenue (Settlement) Department to take necessary action for settlement of land in favour of the respondent No.2

and his father.

26) However, the Deputy Secretary to the Govt. of Assam, Revenue (Settlement) Department by his letter dated 27.03.1991 (Ext.18), by agreeing to

reserve the land in question in favour of Bahgora Janakalyan Min Mahal Samity (Proforma Respondent No.6) for carrying out pisciculture, had

cancelled the previous order vide letter dated 18.09.1985, by directing that the land must be utilized for pisciculture purposes within 3 years, failing

which the land would revert back to the Govt. Thereafter, the respondent No.2 and his father had preferred an appeal and by order dated 25.10.1991

(Ext.19), the Joint Secretary to the Govt. of Assam, Revenue (Settlement) Department, informed the Deputy Commissioner, Darrang that the

Governor of Assam was pleased to order for settlement of 49B-4K-5L land to respondent No.2 and his father on realizing 25% premium on the

market value of land fixed at Rs.5,000/- per bigha and the order vide letter dated 27.03.1991 (Ext.18) was cancelled. Accordingly, the respondent

No.2 and his father had deposited premium of Rs.62,400/-. Aggrieved by the said order dated 25.10.1991 (Ext.19), the Proforma Respondent No.6

approached this Court by filing Civil Rule No. 4528/1991 and this Court by order dated 13.11.1991 (Ext.21), allowed the writ petition by directing the

Government to hear the parties and pass an order in accordance with law.

27) The Addl. Secretary to the Govt. of Assam, Revenue (Settlement) Department, by an order dated 18.02.1993 (Ext.26), discussed the rival

contentions of the parties and, inter-alia, observed that during the relevant period when Govt. order dated 10.09.1985 was passed, the Settlement

Policy of 1972 was in force, which prohibited settlement of Govt. land on individual basis and that the said policy indicated that the land which was not

suitable for cultivation was to be kept reserved. It was mentioned that as per 1989 Policy, maximum 5 bigha land could have been allotted to family

who had taken up pisciculture as a means of livelihood but the said 1989 policy did not envisage settlement of land for pisciculture. By referring to

various provisions of the Assam Land & Revenue Regulation, 1886 it was held that the paragraph in order dated 19.09.1985 that settlement of land in

favour of the respondent No.2 and his father would be considered was illegal as the Executive order could not override the existing Rules, which was

law under Regulation 157(4) of the said 1886 Regulation. It was also held that by the investment made by the respondent No.2 and his father, they

enjoyed fishery products for so many years, as such, the investment cannot be a liability of the Government. Hence, orders dated 10.09.1985 and

05.03.1992, allowing settlement of fishery in favour of respondent No.2 and his father were cancelled and direction was issued for refund of the

premium. The said refund of premium was accepted by the respondent No.2 and his father without any protest.

28) The respondent No.2 and his father by issuing notice under Section 80 CPC, demanded a sum of Rs.67,92,427/- from the State on account of loss

suffered by them as a consequence of cancellation order, as under:-

a. Investment of Rs.14,73,409/- with interest @ 17% amounting to Rs.10,19,018/- from 06.10.1989Â Â

to 05.10.1993: Rs.24,92,427/-

b. For mental suffering, e.g. vexation, anxiety and worries:Â Rs. 2,00,000/-

c. Actual expenses incurred in court litigation: Rs. 2,00,000/-

d. Loss of future income and profit:Â Rs.30,00,000/-

e. Money spent on for maintenance and upkeep and on account of rearing fishes (1989-93): Rs . 9,00,000/-

Total:Â Rs.67,92,427/-Â

29) On a perusal of the written statement filed by the appellants, it is appalling to observe that the appellants had not given any specific reply and their

denial were evasive and general in nature. The appellants did not dispute or deny the investment of Rs.14,73,409/-made by the respondent No.2 and

his father, rather, the investment is deemed to be specifically admitted because in paragraph 8 of the written statement, it has been stated that “…

expenditure for development of fishery for higher production is a part of the business of the lessees as Fishery Rule 19 provides for keeping the

fishery clean from debris of any kind.†The appellants, while filing their written statement appears to have no idea that as per the plaint, the entire

expenditure by the respondent No.2 and his father was not on account of keeping the said fishery free from debris.

30) Moreover, for reasons best known to the appellants, they did not take any plea in their written statement that the initial order dated 10.09.1985

(Ext.13) as well as the order dated 25.10.1991 (Ext.19), allowing settlement of fishery in favour of respondent No.2 and his father were illegal. For the

reasons best known to the appellants, in their written no reliance was placed on the order dated 18.02.1993 (Ext.26), passed by the Addl. Secretary to

the Govt. of Assam, Revenue (Settlement) Department to cancel the land settlement in favour of the respondent No.2 and his father. In other words,

the appellants, merely gave their para-wise response of the plaint but miserably failed to set-up any specific defence.

31) The appellants have taken a plea in paragraph 8 of their written statement that as the respondent No.2 and his father had taken a plea that they

were earning a profit of Rs.3,00,000/- per annum, after meeting all expenses, then how there will be losses. The said statement indicates that the

approach of the appellants were totally misconceived about the case projected in the plaint, because the respondent No.2 and his father were not

seeking money to recoup their past or current losses, but they were claiming damages on account of

(i) investment and interest, (ii) damages for mental suffering, (iii) litigation expenses, (iv) future losses, and (v) for maintenance and upkeep. Thus, not

only the appellants had failed to address the case of the respondents No.2 and his father, but they failed to set-up their defence.

32) On a perusal of the cross examination of PW-1, it is seen that instead of making an attempt to demolish the case of plaintiffs, in course of cross-

examination, the appellant had got the PW-1 to confirm that the fishery farm had been completed under the guidance of the fishery department. PW-1

had further stated that the plan and estimate had been readied and on being submitted, the same was approved. It was also admitted that the

respondents No.2 to 5 had been using the land as fishery since 1970 to 18.02.1993. PW-1 had admitted that he had not furnished the details of

Rs.2,00,000/- as court expenses. In cross-examination, the PW-1 had confirmed that the compensation of Rs.30,00,000/- was being claimed on

account of loss of future income due to cancellation of allotment. The cross-examination was also on other points, which is not of much relevance, as

the case set up by the respondents No.2 to 5 could not be demolished.

33) The PW-2 was an Advocate’s Clerk, who had merely deposed about sending of Advocate’s notice under Section 80 CPC by registered

post to the addressees.

34) The evidence of DW-1 is more appalling than the statements made by the appellants in their written statement. To highlight the stand of the

appellants in their evidence, the free-hand English translation of the examination- in- chief and the cross examination of DW-1, namely, Syed Rafique

Ali, which was recorded in Assamese, is quoted below:

“On S/A.

I have been working as the ADC, Darrang District for the last three years. At present I am In-Charge of Revenue Department. Ext.Ga was issued

by the Revenue (Settlement) Department. It was sent by the Settlement Branch, Govt. of Assam. That letter was sent by the Deputy Commissioner,

Darrang on behalf of the Deputy Secretary, Revenue (Settlement) Department, Govt. of Assam. The land was a waste land. Ext.Ga(1) is the

signature of the Deputy Secretary (proved in original).

XXX

I am adducing evidence on the basis of this letter. I did not personally go to see the land.

Sd/- Syed Rafique Ali.

RO & AC.

Sd/- (illegible) 26.06.04â€​.

35) Thus, it is evident that the said DW-1 did not give evidence to establish any stand taken in the written statement of the appellants. The Ext.Ga, as

exhibited by the DW-1 is the letter dated 27.03.2001 addressed to the Deputy Commissioner, Darrang, Mangaldai, by which the Deputy Secretary to

the Govt. of Assam, Revenue (Settlement) Department, had cancelled the order dated 10.09.1985 of allotting land to the Fishery Department and had

reserved the said waste-land for public purpose in favour of Proforma Respondent No.6. The reason for mentioning the said evidence of DW-1 to be

appalling is that there is no reference of the letter dated 27.03.1991 (Ext.Ga) in the written statement and moreover, the mere marking of the said

document as Ext.Ga does not help the appellant in any manner because a mere marking of a document as exhibit does not prove its contents and that

there is no statement in the evidence of DW-1 to show what point the said DW-1 had intended to prove by marking the said letter dated 27.03.1991 as

Ext.Ga.

36) Hence, in view of the nature of statements made in the written statement and in the evidence of DW-1, it would not be wrong to opine that there

was no defence and therefore, it is only to be seen whether the respondents No.2 to 5 have been able to prove their case.

POINT OF DETERMINATION NO. (a):

37) In connection with the point of determination No. (a), while the learned Addl. AG had submitted that the order of cancellation of land settlement/

allotment in favour of the respondent having not been assailed or questioned, the suit for compensation would not lie and in this regard, it is

alternatively submitted that without challenge to the said orders, by which land settlement/ allotment was cancelled, being a valid order, no suit for

compensation would lie. Per contra, the learned Senior Counsel for the respondents No.2 to 5 has submitted that instead of claiming relief in respect of

the order passed for cancelling their land settlement, the respondents No.2 to 5 and their predecessor-in- interest had prayed for damages and it was

further submitted that no materials have been proved by the appellants to show that the suit for claiming monetary compensation and/or damages was

not maintainable on facts and in law, and that no materials have been brought on record by which this Court can infer that the jurisdiction of a civil

court to entertain and adjudicate a suit for compensation and/or damages is barred under Section 9 of the Civil Procedure Code. Accordingly, as it has

been held that the civil courts have jurisdiction to try the suit, the other cases cited on the point by the learned Senior Counsel for the respondents No.2

to 5 viz., Vishnu Dutt Sharma (supra), Shree Shubhlaxmi Fabrics (supra), Dhulabhai (supra), Raja Ram Kumar Bhargava (supra) and NMDC (supra),

need not be discussed.

POINT OF DETERMINATION NO. (b):

38) In connection with point of determination No. (b), it is seen that the land allotment order dated 10.09.1985 (Ext.13) and settlement of land order

dated 05.03.1992, both in favour of the respondents No.2 to 5 (including their predecessor) were repudiated, annulled and cancelled by the order dated

18.02.1993 (Ext.26), inter-alia, on the ground that the said orders were illegal and was issued in violation of the (i) Land Policy of 1972, and (ii) Land

Policy of 1989.

39) Situated thus, the finding recorded in the order dated 18.02.1993 (Ext.26) to the effect that the land was allotted and/or settled in favour of the

respondent No.2 and his father (plaintiff No.1) illegally, has attained finality. On a perusal of the said letter dated 10.09.1985 (Ext.13), it is seen that

the said land was reserved in favour of the Fishery Department, with a condition that the land would be utilized by the respondent No.,2 and his father.

Therefore, there was no settlement of land vide Ext.13 in favour of the respondents No.2 to 5 or their predecessor (i.e. plaintiff No.1). Thus, the

respondent No.2 and his father merely had the status of “permissive occupier†and nothing more. Nothing has been placed on record to

demonstrate the right of a permissive occupier to be entitled to damages and/or compensation due to discontinuation of their right to continue to

occupy the land in reference. Moreover, as the letter dated 10.09.1985 has been declared to be illegal by order dated 18.02.1993 (Ext.26), it cannot be

held that the letter dated 10.09.1985 was a valid contract within the meaning of Section 10 of the Contract Act, 1972 because the object of the said

allotment order was held by the competent authority to be “not lawfulâ€. In no uncertain terms, it has been held by order dated 18.02.1993

(Ext.26), that the said allotment order dated 10.09.1985 (Ext.13) and settlement of land order dated 05.03.1992, both in favour of the respondents No.2

to 5 (including their predecessor) were illegal. Therefore, till the finding recorded by order dated 18.02.1993 (Ext.26) remained to be a valid order, it

must necessarily follow that the respondents No.2 to 5 cannot get benefit from the said two illegal orders.

40) As the orders dated 10.09.1985 (Ext.13) and 05.03.1992 were held by the competent authority to be illegal, and the said finding had attained

finality without any challenge to the said order, this court is of the view that the State owed no duty or care towards the respondents No.2 to 5 or to

their predecessor (i.e. deceased plaintiff No.1) because of the said illegal orders dated 10.09.1985 (Ext.13) and 05.03.1992, and, as such, on part of

the State Appellants, there was no breach of duty and/or negligence to perform any duty and, as such, in this case in hand, this Court is unable to term

the appellants as tortfeasors. In Halsbury’s Laws of England (Fifth Edition 2015, Vol.97, Note/Para 412), there is a reference to the principles of

Damnum absque Injuria. The said passage is quoted below:- Damage without infringement of legal right (damnum absque injuria). The world is full of

harm for which the law furnishes no remedy [Rylands V. Fletcher (1868) LR 3 HL 330 at 338 per Lord Cairns]. A person may sustain loss or

damage and yet possess no remedy in tort, because his legal rights have not been infringed in any way which the law regards as unjustifiable, so that

he has suffered no legal wrong [Smith V. Kenrick (1849) 7 CB 515]. The doctrine is embodied in the Latin phrase ‘damnum absque injuria’

[Chasemore V. Riachards (1859) 7 HL Cas 349].

41) Moreover, it is observed that in the present case, the respondents No.2 to 5 had not come to court with a case for specific performance of

contract, as such, the suit was not for seeking damages and/or compensation in addition to or in lieu of specific performance of contract as envisaged

under Section 21 of the Specific Relief Act, 1963.

42) Therefore, as per the order dated 18.02.1993, which is in force having attained finality, the relevant law does not permit settlement of land in

excess of 5 (five) bigha for each family for pisciculture under Land Policy, 1989, merely because an illegal order was passed to propose settlement of

land measuring 49B-4K-5L to the respondent No.2 and his father (deceased plaintiff No.1). As such, the State Government had set things right by

passing order dated 18.02.1993, thereby cancelling the illegal orders dated 10.09.1985 and 05.03.1992 referred herein before. Hence, no case is made

out for compensating the respondents No.2 to 5 for any damages and/or compensation.

43) The appellants had referred to the provisions of Regulation 11 of the Assam Land & Revenue Regulation, 1886 in the Memo of Appeal. The said

provision is quoted below:-

“11. Right of settlement holders.- A settlement- holder who is not a land-holder, shall have no right in the land held by him beyond such as are

expressed in his settlement lease.†Therefore, the learned trial court is found to have had failed to appreciate that vide letter dated 10.09.1985

(Ext.13), the status of the respondent No.2 and his father was not that of a settlement- holder, as there was no settlement of land and/or no creation of

any lease in their favour. Thus, as per the above quoted provisions of Regulation 11, the respondents No.2 to 5 were not entitled to any right beyond

the period till when they were permitted to utilize the land by the State.

44) In this regard, this court is of the view that the learned trial court had failed to appreciate that the State Govt. cannot be made to pay damages

and/or compensation for passing a lawful order dated 18.02.1993 (Ext.26), by virtue of which illegal orders dated 10.09.1985 and 05.03.1992 were

cancelled, resulting in the land in question reverting back to the State.

45) Hence, as a result of the discussions above, the second point of determination No. (b) is decided in the affirmative and

in favour of the appellant by holding that the claim for damages and/or compensation was decreed without considering the effect of the order dated

18.02.1993 (Ext.26), whereby the allotment of land in favour of the respondent No.2 and his father (deceased plaintiff No.1) vide order dated

10.09.1985 (Ext.13) and 05.03.1992 were held to be illegal.

POINT OF DETERMINATION NO.(c):

46) In this connection, the remaining issues as decided by the learned trial court have been re-visited.

47) In respect of the issue No.3, it is seen that the respondents No.2 to 5 have been able to prove due issuance of notice under Section 80 CPC. The

learned trial court had recorded a finding that the said notice has been received by the appellants. There is no denial of the same by the appellants.

Hence, this court does not find any infirmity in the decision of the learned trial court, thereby deciding the issue in favour of the respondents No.2 to 5.

48) Issue No.4 related to the question whether the suit was bad for non- joinder of necessary parties or mis-joinder of any party. It is seen that nothing

has been brought on record as to who were improperly joined as defendants in the suit and which of the necessary parties were left out. Hence, this

court does not find any infirmity in the decision of the learned trial court, thereby deciding the issue in favour of the respondents No.2 to 5.

49) In connection with issue No.5 as decided by the learned trial court, it is seen that for reasons indicated in the order, the authorities had allotted the

land in question to the respondent No.2 and his father by order dated 10.09.1985 (Ext.13) and moreover, by the order dated 25.10.1991 (Ext.19),

settlement of fishery was allowed in favour of respondent No.2 and his father. By order dated 18.02.1993 (Ext.26), the Addl. Secretary to the Govt.

of Assam had opined that the condition in letter dated 10.09.1985 that settlement of land in favour of respondent No.2 and his father would be

considered was illegal. However, the said authority for reasons best known to him, had cancelled order dated 10.09.1985 of settlement of fishery to

the respondent No.2 and his father, which was quite contradictory because by letter dated 10.09.1985 (Ext.13), land was reserved for Fishery

Department for allowing them to utilize the land for pisciculture, as such, the order dated 10.09.1985 cannot be said to be an order by which land was

settled to the said respondent No.2 and his father. Therefore, the land in question was merely allowed to be used by the respondent No.2 and his

father on condition that if they did not utilize the land in 2 years, the land would revert back to the Government. Thus, there is no difficulty in holding

that there is no settlement of land vide order dated 10.09.1985, as such, the decision of the learned trial court on issue No.5 is not sustainable on facts

and in law. Rather, as per the order dated 18.02.1993 (Ext.26), the land was allowed to be settled in favour of the respondent No.2 and his father

(deceased plaintiff No.1 by order dated 05.03.1992, which has also been held to be illegal by the competent authority. Hence, the decision on issue

No.5 is liable to be reversed and decided in the negative and in favour of the appellants by holding that the land in question measuring 49B-4K-5L was

not settled to the respondent No.2 and his father (deceased plaintiff No.1) vide order No. 588/85/17 dated 10.09.1985 (Ext.13).

50) In respect of issues No.1 and 2, it is seen that the father of the respondent No.2 and the respondent No.2 were the original plaintiffs No.1 and 2 in

the suit. On death of the plaintiff No.1, who was the father and predecessor-in- interest of the respondent No.2, the respondents No. 3 to 5 were

impleaded in the suit. However, from amongst the various documents exhibited by the respondents No.2 to 5, were the estimate dated 06.10.1989

(Ext.14), vouchers (Ext.22 Series & Ext.23 Series), statement of expenditure (Ext.24) and the Cash Book (Ext.25). All the said exhibits pertain to a

firm M/s. Ahmed & Hussain Pisciculture Enterprise. As such, the expenditure, if any was made by a firm, which is not found to be one of the

plaintiffs in the present case. Moreover, there is no statement in the plaint or in the evidence of the PWs as to how the firm of M/s. Ahmed and

Hussain Pisciculture Enterprise was constituted, whether it was a partnership firm and whether the original plaintiffs No.1 and 2 were its partners. In

the considered opinion of this Court, if the expenditure was made by the firm M/s. Ahmed and Hussain Pisciculture Enterprise, the plaintiffs had no

power or authority to claim damages and/or compensation from the appellants unless evidence is led to show that the assets and liabilities of the said

firm had devolved on the original plaintiffs, i.e. Respondent No.2 and his deceased father. This is not a case where the respondents No.2 to 5 or their

predecessor-in- interest i.e. plaintiff No.1 were suing in a representative capacity. Moreover, as the name suggests, if the firm M/s. Ahmed and

Hussain Pisciculture Enterprise appears to be a partnership firm. If that be so, then the suit is barred by operation of Section 69(2) of the Partnership

Act, 1932. Nonetheless, having seen that the said relevant documents pertain to a firm which is not one of the plaintiffs, the respondents No.2 to 5 are

found to have no cause of action for the suit and moreover, the suit was not maintainable in the present form as the plaintiffs including the respondents

No.2 to 5 have not proved their right to realize money inform of damages and compensation for investments made by a third party. Thus the decision

of the learned trial court on the issues No.1 and 2 are found to be not sustainable and the same is reversed by holding that there was no cause of

action for the suit and that the suit was not maintainable in the present form.

51) With regard to issue No.6, as to whether the respondents No.2 to 5 had developed the fishery by incurring an expenditure of Rs.14,73,409/-, on

examination of the Estimate dated 06.10.1989 (Ext.14), it is seen that the proposed area of expenditure were:

a. Item-1 â€" clearing water hyacinth, jungle, etc:  Rs.49,000/-

b. Item-2 â€" construction of cross dams in 5 places: Rs.3,36,000/-

c. Item-3 â€" Dewatering and cleaning tanks:  Rs.75,000/-

d. Item-4 â€" Removal of sand/sandy soil from tanks: Rs.3,16,800/-

e. Item-5- Re-silting of tanks-Â Rs.4,32,000/-

f.Establishment cost:Â Rs.1,06,500/-

g. Contingencies:Â Rs.39,459/-

h. Working capital:Â Â Rs.1,18,650/-

Total: Rs.1473,409/-Â Â

52) However, as per entries made in Expenditure Statement (Ext.24), which is stated to be in terms of Cash Book (Ext.25), the expenditures were

incurred by the firm M/s. Ahmed and Hussain Pisciculture Enterprise under the following heads:-

a. Construction of approach road: Rs.1,57,600/-

b. Construction of 2 Hume pipe culverts: Rs.19,100/-

c. Construction of fencing and plantation of trees: Rs.2,08,400/-

d. Clearance of aquatic vegetation: Rs.2,86,400/-Â Â Â Â

e. Construction of embankments:Â Â Rs.3,73,500/-

f. Total:Â Rs.10,45,000/-Â Â

g. Recurring expenses in stocking tanks:Â Rs.1,08,700/-

h. Recurring expenditure on watch and ward:Â Â Rs.27,000/-

53) It is seen that in respect of the above referred item - Construction of embankments, while in page-3 of Ext.24, the sum of Rs.3,73,500/- is shown,

but in page-4 of Ext.24, the amount is shown as Rs.4,27,600/- and the total expenditure is shown in page-4 thereof as Rs.10,59,100/-. Thus, there

appears to be a mismatch of Rs.54,100/- in respect of expenditure on Construction of embankment and in total expenditure amount, there is a

mismatch of Rs.14,100/-. However, in the last page of Statement of Expenditure (Ext.24), it has been mentioned that an amount of Rs.9,00,000/- was

spent by M/s. Ahmed and Hussain Pisciculture Enterprise during 1990-1992 to implement the project. The said statement is signed by “Engineering

Supervisor, Fish Farmers Dev. Agency, Kamrup, Guwahati.â€​ There is no statement in the evidence of the PWs regarding the said agency. The name

of the signatory is not disclosed and the signature of the author has not been marked as exhibit. The said statement (Ext.24) does not contain any

statement that its contents are based on the scrutiny of books of accounts. There is no statement in the evidence of the PWs 1 and 2 to the effect that

a Engineering Supervisor of a Fish Farmers Dev. Agency had any statutory authority or any legal capacity to audit the books of accounts of the firm,

which is otherwise a work known to be normally done by a Chartered Accountant or a Cost Accountant.

54) Moreover, the said Statement of Expenditure (Ext.24) cannot be accepted as a books of account prepared and maintained by the original plaintiff

No.1 and 2 in regular course of ordinary business, for two reasons, firstly, as per standard accounting principles accepted for income tax purposes,

profit and loss accounts and balance sheet are admissible documents, which establish the profit, loss and valuation of assets but a “statement of

expenditure†does not forma part of books of accounts maintained in regular course of ordinary business, and secondly, the said statement of

expenditure belongs to M/s. Ahmed and Hussain Pisciculture Enterprise, not being the plaintiff, and the same is in form of loose sheets, which is not in

consonance with the provisions of Section 34 of the Evidence Act, 1872. Moreover, the said document has not been signed by the owners of the said

firm i.e. M/s. Ahmed and Hussain Pisciculture Enterprise. Therefore, it is within the power of this Court to scrutinize whether any document exhibited

without any objection was admissible in evidence or not and if one needs any authority on the same, the case of Joinmanick Nosmel Giri (supra), cited

by the learned Addl. AG for the appellants may be referred to.

55) The said “estimate dated 06.10.1989†(Ext.14) was prepared by the District Fishery Development Officer, Darrang, Mangaldai. There is no

pleadings in the plaint or in the evidence, as to why the contents of an estimate can be accepted as a proof of expenditure incurred. The Cash Book of

the firm M/s. Ahmed and Hussain Pisciculture Enterprise (Ext.25) is for the period from 01.01.1990 to 24.12.1992. Therefore, there is no evidence of

expenditure incurred by the respondent No.2 and his father (plaintiff No.1) upto 06.10.1989, i.e. pertaining to the period prior to the said estimate

(Ext.14). It is required to be mentioned that between Ext.13 and Ext.14, a document, being “estimate dated 09.08.1985†is available (pp.93-95 of

paper-book), but the same has not been marked as an exhibit. As per entries contained in Ext.24, a sum of Rs.3,17,100/- was spend in the year 1990

by the firm M/s. Ahmed and Hussain Pisciculture Enterprise under five heads of (a) construction of approach road, (b) construction of HP culvert, (c)

fencing and plantation of trees, (d) construction of embankments, (e) Watch and Ward. On the same heads, expenditure in the year 1991 was

Rs.5,31,800/- and in 1992, the expenditure on those heads, and recurring expenditure on stocking tank was Rs.3,51,100/-. Thus, these expenditures do

not match the heads of expenditure projected in the estimate dated 06.10.1989 (Ext.14). There is no document evidencing that the estimate was

subsequently revised by the Fishery Department. Hence, in the opinion of this Court, the State cannot be directed to compensate the respondents No.2

to 5 for expenditure which are not in consonance with the estimate (Ext.14).

56) On a overall view of above, upon considering the contents of Ext.14, Ext.22 Series, Ext.23 Series, Ext.24, Ext.25, it is seen that the respondents

No.2 to 5 have not been able to prove their alleged investment of Rs.14,73,409/-, which is item No.1 of the Schedule of Claims in the plaint, because it

has been already noted herein before that Ext.14 is merely an estimate, which cannot constitute a proof of expenditure, incurred subsequently.

57) Thus, in the considered opinion of this Court, the respondents No.2 to 5 have not been able to establish (i) their relationship with the firm M/s.

Ahmed and Hussain Pisciculture Enterprise, in whose favour the estimate dated 06.10.1989 (Ext.14) was prepared; or (ii) that any expenditure was

incurred by the respondents No.2 to 5 (including the deceased plaintiff No.1); or (iii) that the deviation of head of expenses shown as per

“statement of expenditure†(Ext.24) from the head of expenditure shown in the said estimate dated 06.10.1989 (Ext.14), was sanctioned and/or

approved by the Fishery Department.

58) In view of the discussions above, this court is constrained to hold that the decision of the learned trial court on issues No.6 is not sustainable on

facts and in law, as the respondents No.2 to 5 have not been able to prove that any expenditure was done and/or incurred in the fishery in question by

the respondents No.2 to 5 (including the deceased plaintiff No.1). Thus, this court is of the opinion that although the respondents No.2 to 5 have

projected that the documents marked as Ext.14, Ext.22 Series, Ext.23 Series, Ext.24, Ext.25 are proof of expenditure of Rs.14,73,409/-, but the said

documents merely indicates that purported expenditures were incurred by the firm, i.e. M/s. Ahmed and Hussain Pisciculture Enterprise , as such, the

entries contained therein cannot be accepted as an admissible evidence of any amount being spent by the respondents No.2 to 5 (as well as deceased

plaintiff No.1). There is no proof to link the respondents No.2 to 5 (and plaintiff No.1) with the said firm. Moreover, the entries contained in the

statement of expenditure are not in consonance with the claim and they are also not in consonance with the estimate dated 06.10.1989 (Ext.14).

59) On issues No. 7 and 8: In respect of discussions on point of determination No. (b), holding that the claim for damages and/or compensation would

not lie on the face of the order dated 18.02.1993 (Ext.26), whereby the allotment of land in favour of the respondent No.2 and his father (deceased

plaintiff No.1) vide order dated 10.09.1985 (Ext.13) and 05.03.1992 were held to be illegal, as well as discussions on issues No.1, 2, 5, and 6 as framed

by the learned trial court, as all expenditures and/or investment were admittedly done by the firm M/s. Ahmed and Hussain Pisciculture Enterprise and

not the respondents No.2 to 5 (i.e. plaintiffs including plaintiff No.1), the respondents No.2 to 5 are not found entitled to any decree for compensation

and/or damages amounting to Rs.67,92,427/- and, as such, the respondents No.2 to 5 are not found entitled to any reliefs as prayed for.

60) Notwithstanding that in the present case, no document has been produced before the learned trial court to show that the Deputy Commissioner,

Darrang, Mangaldai (appellant No.3) was either vested with the power to and/or competent to represent the appellants No.1 and 2, viz., The State of

Assam, and The Secretary to the Govt. of Assam, Revenue Department, and further notwithstanding that that the evidence led by DW-1, an officer

of rank of Addl. Deputy Commissioner was referred herein above as appalling, yet, it is a well settled principle of law that the plaintiffs must stand on

their own feet and not on the deficiencies on part of the defendant. Therefore, as this Court is of the opinion that the respondents No.2 to 5 have not

been able to establish their case, even if the defence of the appellants before the learned trial court is discarded, still on fact and in law, the impugned

judgment decree is found liable to be interfered with.

61) As the respondents No.2 to 5 have not been able to prove their entitlement to recover the investment projected to be made by M/s. Ahmed &

Hussain Pisciculture Enterprise, or to claim damages and/or compensation, on facts, the ratio of the case of Sarwan Singh (supra), wherein the

Hon’ble Apex Court has held that the effect of essential and material case not been put up in cross examination by the defendants in the suit, the

testimony given by the plaintiff cannot be disputed at all, does not apply in the present case, because the PWs have not been able to establish the case

of the respondents No.2 to 5.

62) Accordingly, the third point of determination No.(c) is answered in the negative and in favour of the appellants by holding that the respondents

No.2 to 5 have not been able to establish their claim. Consequently, the point of determination No.(d) is also answered in the negative and in favour of

the appellants by holding that the impugned judgment and decree passed by the learned trial court is liable to be interfered with.

63) As a result of the discussions and findings above, this court holds that the judgment and decree dated 05.05.2007, passed by the learned Civil

Judge, Darrang, Mangaldai, in Money Suit No. 4/1995 is not sustainable on facts and in law and, as such, the said decree stands reversed by

dismissing the suit.

64) However, the parties are left to bear their own cost.

65) Let a decree be drawn accordingly.

66) The Registry may return back the LCR.