Hasmat Khan and 90 Ors v. The State of Assam and 4 Ors

JUDGMENT & ORDER

Advocate for the petitioners : Shri S. Borthakur, Advocate Advocates for the respondents : Shri R. Borpujari, SC, Revenue Department Shri J. Handique, Govt. Advocate. Date of hearing : 08.04.2024 Date of judgment : 08.04.2024

¶1Considering the subject matter involved, the grounds of challenge, the various orders passed in the subject including orders passed by this Court and as agreed to by the learned counsel for the parties, this writ petition is taken up for hearing and disposal at the motion stage itself.

¶2An order dated 18.07.2005 passed by the learned Assam Board of Revenue (hereinafter ABR) is the subject matter of challenge in this petition filed under Articles 226 and 227 of the Constitution of India.

¶3The subject matter of the case before the learned ABR was in connection Page No.# 20/30 with a plot of land measuring 17 Bighas 2 Katha 6 Lechas. The aforesaid appeal was instituted by one Dipendranath Goswami which was in the form of an appeal against an order dated 09.01.2004 passed by the Sub-Divisional Officer (Sadar), Barpeta in T.R. Case No. 80/2003-04. Certain persons who were arrayed as respondent nos. 5 to 10 in the said appeal had applied for ownership right over the aforesaid plot of land covered by Dag No. 318 of Nisf Khiraj & Patta No. 1 of village Ganakpara of Mouza Chenga in the district of Barpeta. The appellant therein had contended that such application was filed by suppressing the actual facts and by misrepresentation. However, the application which was registered as T.R. Case No. 80/2003-04 was allowed. Amongst various grounds taken in the appeal, it was contended that notices were not issued and without such notice, orders under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 was passed.

¶4The learned ABR, after hearing the parties had come to the conclusion that the appeal was having merits and accordingly the same was allowed and the impugned order dated 09.01.2004 passed by the SDO (Sadar), Barpeta in T.R. Case No. 80/2004 was set aside. For ready reference, the relevant part of the order is extracted herein below.

"After perusal of all the relevant records and hearing the learned advocates, it is seen that the TR Case No. 80/2003-04 was instituted against persons who were dead and their legal heirs were not impleaded in that case. Order cannot be passed against a dead person without impleading his or her legal heir. So far as the question of S.D.O. (Sadar) to dispose of such cases are concerned, it Page No.# 21/30 is clear from Govt. of Assam's Notifications No. RRT. 37/77/Pt./6 and No. RRT. 37/77/Pt/6-A dtd. 9.9.1980, it is seen that the Addl. Deputy Commissioners and Sub-Divisional Officers including the Sub-Divisional Officer (Sadar) have the powers of Revenue Officers for the purpose of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 and these officers will also have all the powers of Deputy Commissioner until further order. Therefore it is not correct to say that the S.D.O. (Sadar) does not have the power to dispose of cases against which this appeal has been filed. From the chitha of the suit land available in the case record, it is seen that the patta of the land is Nisf Khiraj patta. Nisf Khiraj Khiraj patta or half revenue estates originate from the land given by the Ahom Kings which letter came to be known as Dharmottar, Debottar, and Brahmottar land. Therefore, it cannot be disputed now that the land is not Satra land. The proviso to Section 15 A of the Assam State Acquisition of land belonging to Religious or Charitable Institutions of Public Nature Act, 1959, as amended, states that notwithstanding anything contained in the Assam Land and Revenue Regulation 1886, the right of transfer of land belonging to the above mentioned institutions for a ryot shall only to a person belonging to same religion in which the ownership of land was vested. Here it is seen that the so called tenant who are given ownership right by the S.D.O. (Sadar) Barpeta belong to the another religion. Therefore, granting of ownership right of Satra land to person belonging to a religion other than that of the person to whom the Satra belongs is not permissible. Therefore, the impugned order passed by the Page No.# 22/30 S.D.O. (Sadar), Barpeta is not valid and the same is liable to be set aside also for the ground that the order was passed after instituting the case against dead persons, without impleading their legal heirs. Therefore, the impugned order dated 09.01.2004 b the Sub-Divisional Office (Sadar), Barpeta in T.R. Case No. 80/2004 is set aside."

¶5It is the legality and validity of this order which has been sought to be challenged by the petitioners in the instant writ petition.

¶6I have heard Sri S. Borthakur learned counsel for the petitioners. I have also heard Sri R. Borpujari, learned Standing Counsel, Revenue Department.

¶7Sri Borthakur, the learned counsel at the outset has submitted that the petitioners were not parties in the proceedings before the learned ABR. He has also drawn the attention of this Court that pertaining to the said judgment dated 18.07.2005 of the learned ABR, an order was passed by the Deputy Commissioner, Barpeta dated 11.04.2022 directing the Circle Officer, Chenga Revenue Circle to correct the land records in favour of the Pirala Satra in village Ganakpara, Mouza-Chenga, N.K. Patta No. 1 measuring 101 Bighas, 0 Katha, 9 Lechas. The aforesaid order dated 11.04.2022 was the subject matter of challenge in the earlier writ petition WP(C)/3003/2022 by one Hiranya Kumar Goswami. The aforesaid petition was however dismissed by this Court vide judgment and order at 17.01.2023.

¶8It is submitted that against the aforesaid judgment, two writ appeals have Page No.# 23/30 been filed which are pending. One of the writ appeals has been preferred by the present petitioners after taking leave from the Court. It is contended that on

21.09.2023, eviction notice have been served upon the petitioners. Challenging the same, the petitioners have filed another writ petition WP(C)/5946/2023 which is also pending.

¶9Shri Borthakur, the learned counsel has contended that there are primarily two grounds of challenge against the order dated 18.07.2005 of the learned ABR. The first ground is that the order has been passed without making the petitioners as parties. The second ground urged is that the Assam State Acquisition of Lands belonging to Religious Charitable Institution of Public Nature Act of 1959 is not applicable as there was no acquisition as such of the land in question. It is also informed that six persons had filed a review petition in the learned ABR and only in the year 2022, the judgment of the ABR came to the knowledge of the petitioners. The petitioners claim to be Riyots of one Rajani Kanta Goswami.

¶10The learned counsel for the petitioners accordingly submits that the writ petition may be allowed and the impugned order dated 18.07.2005 be set aside.

¶11Per contra, Shri Borpujari, learned Standing Counsel, Revenue Department has submitted that the instant challenge is clearly an afterthought. He submits that the attempt is only to frustrate the order of the Court which had taken care of the necessity of preserving lands of Satras and in this case, the land in question is of the Pirala Satra. He has submitted that this Court while disposing of WP(C)/3003/2022 vide the judgment dated 17.01.2023 have taken into Page No.# 24/30 consideration all the objections regarding the ownership of the land. This Court had also taken note of the interim and final reports of the Assam State Commission for review and assessment of problems of Satra lands in Assam. In both the Reports, the existence of Pirala Satra has been clearly reflected. It is submitted by Shri Borpujari that though the petitioners herein contend to be the riyot of one Rajani Goswami, the petitioner in the earlier writ petition WP(C)/3003/2022 is a descendant of Rajani Goswami as would be reflected from the judgment itself. The aforesaid writ petition was dismissed by this Court by holding that while the order dated 11.04.2022 for correction of land records was challenged, the basis of the said order, namely, the order of the learned ABR was not the subject matter of challenge. Shri Borpujari has also submitted that the review petition against the judgment dated 18.07.2005 has been filed by a group of persons on 30.05.2023 and on the same date, an appeal has also been preferred in the learned ABR against the order dated 11.04.2022 of correction of land records. It is submitted that both the review and the appeal have been filed by the same parties on the same date and it is submitted that the present petitioners are hand in gloves with the said parties who not only belong to the same area but are aggrieved by the same cause of action.

¶12On the grounds that the petitioners did not have knowledge about the said judgment, Shri Borpujari, the learning Standing Counsel, by referring to the array of parties has submitted that most of the present petitioners are descendants of the parties in the proceeding before the ABR. A specific example has been given in case of the petitioner no. 58 (Idris Dewan) herein who is the son of one Atowar Dewan who was a party respondent no.5 in the proceeding before the ABR. Page No.# 25/30

¶13The rival contentions of the parties have been duly considered and the materials placed before this Court have been carefully examined.

¶14To appreciate the rival contentions, it would be necessary to examine the impugned order dated 18.07.2005 of the learned ABR passed in an appeal. The aforesaid appeal was preferred in the year 2004 against an order dated

09.01.2004 passed by the SDO (Sadar), Barpeta in T.R. Case No. 80/2003-04 by one Dwipendra Nath Goswami and the respondents included 6 nos. of private respondents. The facts narrated in the said judgment would make it clear that the said 6 nos. of private respondents who were arrayed as respondent nos. 5 to 10 had applied for ownership right over a plot of land which was a part of the erstwhile Pindara Satra which is presently known as Pirala Satra. It was contended by the appellant therein that though the original pattadar who was the Satradhikar of the Satra had died, the legal heirs were not made parties in the T.R. Case No. 80/2003-04 and they had accordingly filed an application that the case could not have proceeded as it was instituted against a dead person.

¶15The appellant therein had taken, amongst others, the following principal grounds while challenging the order dated 09.01.2004.

i. that the SDO (Sadar) did not have jurisdiction to pass the impugned order.

ii. that the proceedings were instituted against dead persons which was not permissible in law. Page No.# 26/30

iii. the legal heirs of the original pattadars were not been made a party.

iv. the land in question is Satra land and therefore the same could not have been settled / allotted in violation of the section 15

(a) of the Act of 1951. Admittedly, the order of the learned SDO (Sadar) was in favour of persons belonging to a different religion who claimed to be riyots.

¶16The learned ABR, while holding that the SDO (Sadar) had the jurisdiction to decide the application, the other grounds of challenge were however upheld. It was held that the proceeding before the learned SDO (Sadar) was bad in law as it was instituted against a dead person and the legal heirs were not impleaded. The learned ABR had also come to a categorical finding that the land in question was a part of the Satra land belonging to the Pirala Satra and as per the proviso to Section 15 (a) of the Act of 1951, no riyots belonging to some other religion were to be allotted any right.

¶17As indicated above, consequent to the said judgment of the learned ABR, an order was passed on 11.04.2022 by the Deputy Commissioner, Barpeta directing the Circle Officer, Chenga Revenue Circle to correct the land records in favour of the Pirala Satra. It is however interesting to note that one Hiranya Kumar Goswami, who is a legal heir of Rajani Kanta Goswami, (one of the Pattadars), had filed a writ petition in this Court being WP(C)/3003/2022 challenging the order dated 11.04.2022. The primary contention was that there was no Satra in the name of Pirala Satra and therefore the order of correction in the land Page No.# 27/30 records was to be interfered with. This Court, after noting the submissions of the rival parties, had however come to a finding that the factual assertion made in the writ petition by the petitioner in that case, Shri Hiranya Kumar Goswami, was not correct as the existence of the Pirala Satra was substantiated by contemporaneous records. This Court had also taken note of the interim and final reports of the Assam State Commission for Review and Assessment of Problems of Satra Land wherein the existence of Pirala Satra was clearly reflected.

¶18This Court had also noticed that while the consequential order dated

11.04.2022 was put to challenge, there was no challenge to the order of the learned ABR dated 18.07.2005. This Court had also doubted the bona fide on the part of the petitioner in that case.

¶19It also becomes clear that while one of the legal heirs of the original Pattadars, namely Shri Dwipendra Nath Goswami, who was the son of late Dharanidhar Goswami had filed the appeal before the learned ABR against the order of the SDO (Sadar) dated 09.01.2004 for corrections of name in favour of the private respondents therein, the said judgment was challenged by none other but another legal heir, namely Shri Hiranya Kumar Goswami, son of Rajani Kanta Goswami. This Court while dismissing WP(C)/3003/2022 vide order dated

17.01.2023 had made observations questioning the bona fide of the petitioner. This Court had also recorded that the writ petitioner in that case was a teacher and was not personally cultivating the land in question and therefore he did not have any indefensible right relating to Article 31A of the Constitution of India. It therefore becomes apparent that the approach of the Page No.# 28/30 petitioner in that the same was instituted on behest of certain other persons.

¶20Be that as it may, as pointed out by Shri Borpujari, the learned Standing Counsel, in the instant case, the petitioner no. 58 is the son of Atowar Dewan who was the respondent No. 5 in the proceeding before the learned ABR. Therefore, the assertion that the petitioners were not aware of the judgment passed in the year 2005 is not acceptable at all. In any case, the petitioners are admittedly of the same area wherein litigations were going on starting from the order dated 09.01.2004 passed by the SDO (Sadar) in favour of certain persons in occupation of a part of the Satra land which was the subject matter of appeal before the learned ABR and the writ petition which was instituted in the year 2022 being WP(C)/3003/2022 challenging the consequential order for correction of land record dated 11.04.2022.

¶21This Court has noticed that in the judgment dated 17.01.2023 dismissing the WP(C)/3003/2022 (Annexure-11), a specific finding was given by the Court that the original order of the ABR dated 18.07.2005 not being the subject matter of challenge, the subsequent order dated 11.04.2022 could not have been challenged. It is almost a year after passing of the aforesaid judgment that the present writ petition has been instituted. The institution of the present writ petition clearly appears to cover up the lapses which were noted by this Court in the judgment dated 17.01.2023 and is being filed by a different set of petitioners.

¶22This Court has already held the submission of the petitioners of being unaware of the order of the learned ABR in the year 2005 to be untenable. As a Page No.# 29/30 corollary, the aspect of inordinate and unexplained delay / laches of more than two decades would definitely come in. This Court being a Court of equity, though the Limitation Act, per se may not be held to be applicable, the issue of laches would definitely come in. In the instant case, the negligence / laches on the part of the petitioners is palpable, which indicates lack of bona fide. The aforesaid aspect has been elaborately explained and laid down by a Constitution Bench of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs Bhailal Bhai &Ors reported in 1964 AIR 1006.

¶23There is another aspect of the matter regarding the land which is admittedly Satra land. It may be mentioned that Satra is an institutional centre associated with the Ekasarana tradition of Vaishnavism in the State of Assam. The materials placed on record including the reference to the interim report and final report of the Assam State Commission for Review and Assessment of Problems of Satra Land has already been made by this Court in the judgment dated

17.01.2023 and there is no dispute that the land in question is of the Pirala Satra. Though this Court has been informed that the aforesaid judgment is the subject matter of challenge in two nos. of writ appeals, no submissions have been made that there is any interim order. The requirement of preserving Satra land is of paramount importance. Therefore, though a submission was made by the learned counsel for the petitioners questioning the application of the Act of 1959, the prior acquisition of the land would not be relevant for the requirement of such preservation which is also covered by the proviso to section 15 (a). As recorded by the learned ABR, under the said proviso, Satra land cannot be allotted to any person belonging to different religion and there is no dispute that all the petitioners herein are of a different religion and are attempting to get Page No.# 30/30 their names recorded for lands belonging to the Satra.

¶24Therefore, this Court is of the considered opinion that the aforesaid factors would go against the petitioners in all respects, namely the inordinate delay / laches, any right being accrued to the petitioners, the aspect of bona fide to institute this writ petition and finally any sustainable grounds which would require any further consideration.

¶25In view of the aforesaid discussion, this Court is of the opinion that no case for interference is made out and accordingly, the writ petition stands dismissed.

¶26No order as to cost. JUDGE Comparing Assistant

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