SURENDRA SINGH Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioners have approached this Court for issuing necessary directions to the respondents in exercise of its powers under Art. 226 of the Constitution calling them not to give effect to the letter dated 12-3-1981 including the alleged exchange of land and for further directions to issue pattas in favour of the writ petitioners in respect of 2 Kathas 81/2 Lechas of land pertaining to Dag No. 43 of Demow F.S. Grant 76 /32 which, according to them are in their possession from the time of their predecessors-in-interest.

(2.) The land in dispute is a road side land situated by the side of National Highway . The said land along with other lands covered by Dag No. 43 of the aforesaid grant belonged to Moran Tea Company. The aforesaid Dag No. 43 along with other lands were declared ceiling surplus under the provisions of the Assam Fixation of Ceiling on Land Holdings Act, 1956 (for short, "the Act of 1956"). Final statement in accordance with the provisions of law was prepared and assessed on the basis of the declaration made by the Moran Tea Company Limited. The petitioners/their predecessor-in-interest applied for settlement of the said plot of land measuring 2 Kathas 81/2 Lechas as it was under their continuous possession since 1962. The Deputy Commissioner, Sibsagar called for a report from the Additional Deputy Commissioner. The Additional Deputy Commissioner after obtaining reports and information from the Senior Assistant Settlement Officer and Assistant Settlement Officer,Sibsagar submitted a report to the Deputy Commissioner on 14-7-1976 recommending settlement of the land with the petitioners in view of their continuous possession. Market value of the land was assessed at Rs. 10,555.50 per Bigha and 65% thereof was fixed of premium for settlement. The Deputy Commissioner in turn recommended the case of the petitioners to the Government of Assam vide letter dated 17-9-1976. On receipt of the same the State Government vide Annexure II dated 5-10-1977 settled the land measuring 2 Kathas 8 and 1/2 Lechas of Dag No. 43 with the petitioners on payment of premium as aforesaid. Accordingly premium was deposited in the year 1978 by way of Treasury Challan. While waiting for the pattas to be issued, the petitioners came to know that the respondents Nos. 4 to 9 raised objection before the Government which delayed the issuance of pattas. The petitioners moved the Government of Assam and other authorities for issuance of pattas which yielded no result. On 1-9-1929 the petitioners obtained a copy of the Jamabandi wherefrom they could come to know that 3 Kathas and 21/2 Lechas of Land out of Dag No. 43 was excluded from the statement of ceiling surplus in view of purported exchange of this land with another plot of land. On further query, the petitioners came to know that the Additional Director of Land Requisition etc., the respondent No. 2, vide letter dated 12-3-1981 informed the State Government that the dispute relating to 3 kathas and 21/2 lechas of land raised by the respondent No. 4 and others was settled with the Manager of Athabari Tea Estate (belonging to Moran Tea Company ) and a plot of land free from encumbrances was exchanged in lieu of the disputed land. According to the writ petitioners, such a deal is not permissible after publication of statement under provision of sub-section (4) of Section 7 of the Act of 1956. They also assailed the propriety of the order on the ground that the decision to exchange any land including the land possessed by the writ petitioners since 1962 have been taken without any notice to them to defend their case.

(3.) The private respondents in their affidavit-in-opposition repudiating the claim of the writ petitioners as above submitted that their predecessor-in-interest took lease of a plot of land measuring 9000 square feets in Dag No. 35 (new 43) in P.S. Grant 76/32 from Moran Tea Company by a registered deed of lease executed on 4-6-1959 and constructed houses thereon. Late Mathura Singh, father of the petitioner No. 1, possessed the rooms constructed by their predecessor-in-interest as monthly tenant. Late Mathura Singh, during his life-time, vacated the rooms under his occupation with delivery of possession to the defendants. The petitioners too delivered vacant possession of the room under his occupation to the private respondents. Therefore, their claim that they are in possession is not correct. Besides these, the private respondents also submitted that the provisions of the Act of 1956 is not applicable in respect of the disputed land which is admittedly non agricultural. Their further case is that the review of the decision to settle the land which the writ petitioners was as per provision of Section 7(6) of the Ceiling Act of 1956, as amended, and therefore, the exchange of the land made by the respondent No. 10 being lawful cannot be assailed in this writ petition filed after a lapse of 11 (eleven) years. Maintainability of the writ petition has also been questioned on the ground that the possession which, they assert, cannot be a subject matter of dispute under Art. 226 of the Constitution of India.