DHIREN CHAKRAVORTY Vs. STATE OF ASSAM

JUDGEMENT

(1.) The facts in these two cases are different and was heard on different dates, both the cases were represented by different counsel but they raise the common question of law and as such they are taken up together. This common judgment shall cover both these cases.

(2.) In Civil Rule No. 35/89, the prayer has been made to quash the orders dated 25. 2. 77 (AnneKure-II), order dated 19.9.88 (Annexure-IX) and order dated 29.10.88 (Annexure-VIII). All these orders were passed in Ceiling Cases. These Annexures, II, IK and VIII are quoted below : Annexure : II. Order dated 25.2.77

(3.) In Civil Rule No. 1205/89 the prayer has been made to quash the order dated 18.11.85 Annexurrs-II and the order of revision application passed by the Secretary, Govt. of Assam, Revenue Deptt. Annexure III to the Writ application. They are quoted below : Copy of the Order Dt. 18.11.85 18.11.85 : Seen the petition filed by Shri Kamaleswar Gogoi and Shri Mohan Gogoi, S/o Shri Boloram Gogoi and two others in Land Ceiling Case No. 304 in the name of Shri Boloram Gogoi. Seen also the petition filed by Shri Boloram on the same date. Perused the reports dated 21.3.85 and 20.8.85 filed by S.D.C. Bihpuna Circle and also the copies of Chittha and Jamabandi. Shri Boloram Gogoi, his son Shri Kamaleswar Gogol and one more are examined in this case on 29.6.85. This Ceiling case was registered in connection with 33 B 1 K 3 L of land in the name of Shri Boloram Gogoi and 45 B 1 K 3 L of land in the name of his wife late Phenibala Gogoi. i.e. 78 B 2 K 16 L in total and after the proceeding 28 B 2 K 16 L of land was determined to be surplus. The then S.D.C. published the final statement in 20.10.76 and after taking possession of the land, the S.D.C. served notice on Shri Boloram Gogoi on 13.11.76. This land pertains to annual patta and notice of acquisition was served on pattadar on 14.2.77. Subsequently this acquired 28 B 2 K 16 L of land originally covered by annual patta of Village Bikrampur No. 2, mouza Dholpur, was separated from the original Dag No. 158 by acquisition and map and records were corrected on 6.7.78 by recording the same in the name of different persons under Dags 257, 258, 259, 260 and 261. It is learnt from the report of the S.D.C. that the acquired land was alloted in the name of 4 persons by issuing allotment slips. Three allottees do not have possession over the land while only one has possession. The S.D.C. has mentioned in this report that the said allottee is the son of the pattadar. It is irregular that the ceiling was allotted to the son of the pattadar as landless person. Now, it is seen that the whole ceiling land is under the possession of the pattadar and"his son. It is proved in the present enquiry that the family is divided into three families. Shri Boloram Gogoi is staying with the eldest son Shri Kamaleswar Gogoi and the remaining sons are living separately by partitioning the land among themselves. It has been mentioned in the objection application filed by the pattadar and his son that they were not aware of the fact of ceiling of the land. They have also explained in the objection that they have been living separately by partitioning the land for a long time. It is seen in the record of the case that notice with regard to the ceiling was duly served on the pattadars. The notice of taking possession and ceiling of the plot of land pertaining to annual patta were also served in due course. The land was acquired in the year 1978 by correcting the records of rights and it cannot believed that the name was not in the knowledge of the pattadars. It is proved by examining the pattadar and another witness that Shri Kamaleswar Gogoi, the elder son of the pattadar got married before 1970 and the other two sons got [married few years later and started living separately. The pattadar has been living with his elder son from the very beginning. Although the three families are now staying separately, but have become separate by partition after 1.4.70 and hence second and third son cannot get relief in law as prayed for. Therefore, inclusion of 78B 2 K 16 L of land in the case is legal and after proceeding ceiling of 28 B 2 K 16 L. is also lawfully done. Hence, the petition for restoration of the land to patta, filed by the pattadar and others is rejected. The S.D.C. has reported that 4 persons were given allotment with respect to the said ceiling land and all of them is the son of the pattadar, and it has also been mentioned that the other three allottees except the son of the pattadar do not have possession over land. The allotment was not done as per law. As such the S.D.C. shall cancel the earlier allotment and shall take necessary steps for distributing the land among the landless person afresh. Inform S.D.C. accordingly." Annexure : III ORDER Perused the connected papers and the case records, perused also the parawise comments and the orders passed by the collector on 18.11.85 in the land ceiling Case No. 304/75-76. The contention the petitioners cannot be accepted as it has clearly been seen from records that the ceiling case has already been finalised long back and the excess land has also been acquired and distributed. The sotry of separate mess of the sons from before the relevant dated i.e. 31.3.70 cannot be believed as has been pointed out by the Collector in his orders dated 18.11.85. There is no force in the petition now filed before Government. From records it has also been seen that the petition has full knowledge of final publication of the notification in the Ceiling case and declaration of the surplus land. The present petition filed before the Govt. in 1986 cannot be treated as a revision petition and no relief can also be given to the petitioners. There is nothing before the Govt. to interfere with the orders of the Collector, Lakhimpur, declaring 28 B. 2 K 6 Ls. as surplus in the instant case. Collector's order acquiring the surplus land as stated. Collector's order acquiring the surplus land as stated above is upheld. Collector should go ahead with taking over possession of the land now and alloting the same with genuine landless agriculturists as it has been made very clear that the surplus land is still in occupation of the returne and one of his sons. No son of the returnee should be alloted any portion of the land declared as surplus. Collector should take necessary action immediately for disposal of the surplus land as stated above. Stay order, if any stands vacated. Send back the case records of Land Ceiling Case No. 304/75-76 to the Collector, Lakhimpur for necessary action. Inform the party accordingly."