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GAUHATI HIGH COURT
S.K.Homchaudhuri, N.G.Das, JJ.
Radha Kanoo and 4 Others -Appellant
Versus
Assam Board of Revenue, Gauhati -Respondent
Civil Rule No. 1243 of 1987
Decided On : 26-03-1993
LAND ACQUISITION - ASSAM FIXATION OF CEILING ON LAND HOLDING ACT, 1956 - SECTION 16 - SETTLEMENT RULES - RULE 18 - ENCROACHMENT - TENANCY RIGHTS - KACHA RAYATI KHATIAN - TOUJI BAHIRA REVENUE - INTERPRETATION AND APPLICATION.
Fact of the Case:
Petitioners' predecessor-in-interest occupied land belonging to Rupai Tea Company, paid rent, and cultivated it. He purchased possessory rights of adjoining plots from occupiers and came to occupy a total of 8 bighas 4 kathas 15 lechas. In 1967, the Revenue Authority issued a Kacha Rayati Khatian in his favor. In 1968, he paid Rs. 1,500/- towards the agreed price of the land to Rupai Tea Company. However, the sale deed was not executed due to the initiation of proceedings under the Assam Fixation of Ceiling on Land Holding Act, 1956. The land vested in the Government after the ceiling proceedings. The petitioners' predecessor-in-interest applied for settlement of the land. Encroachment proceedings were initiated against the petitioners under Rule 18 of the Settlement Rules. The Assam Board of Revenue dismissed the petitioners' appeals. The petitioners challenged the proceedings and the Board's judgment.
Finding of the Court:
The court held that the petitioners' predecessor-in-interest had been in authorized occupation of the land as a cultivating tenant at the time of its acquisition under the Ceiling Act. The court found that the petitioners were entitled to get settlement of the land under section 16 of the Ceiling Act, subject to a maximum of 50 bighas. The court also held that the petitioners were not encroachers and that the proceedings under Rule 18 of the Settlement Rules were misconceived and without jurisdiction. The court quashed the impugned proceedings and the Board's judgment.
Issues: 1. Whether the petitioners' predecessor-in-interest was a cultivating tenant of the land at the time of its acquisition under the Ceiling Act? 2. Whether the petitioners were entitled to get settlement of the land under section 16 of the Ceiling Act? 3. Whether the petitioners were encroachers? 4. Whether the proceedings under Rule 18 of the Settlement Rules were misconceived and without jurisdiction?
Ratio Decidendi: 1. The court held that the petitioners' predecessor-in-interest had been in authorized occupation of the land as a cultivating tenant at the time of its acquisition under the Ceiling Act based on the following factors: - The predecessor-in-interest had been in occupation of the land for a long time. - In 1967, the Revenue Authority issued a Kacha Rayati Khatian in his favor, showing him as a cultivating tenant. - The original owner, Rupai Tea Company, did not object to the issuance of the Khatian. - The amount of compensation for the acquired surplus land was to be apportioned between the owner and the tenant, indicating that the predecessor-in-interest was recognized as a tenant. 2. The court held that the petitioners were entitled to get settlement of the land under section 16 of the Ceiling Act because their predecessor-in-interest had been a cultivating tenant at the time of its acquisition. 3. The court held that the petitioners were not encroachers because they had been in authorized occupation of the land at the time of its acquisition under the Ceiling Act. 4. The court held that the proceedings under Rule 18 of the Settlement Rules were misconceived and without jurisdiction because the petitioners were not encroachers and Rule 18 could only be applied to eject persons who were in unauthorized occupation of Government land.
Final Decision: The court allowed the petition, quashed the impugned proceedings of Encroachment Case No. 5 of 1983 and No. 57 of 1986, and set aside the impugned appellate judgment dated 15.7.87 passed by the Assam Board of Revenue in Case Nos. 155 RA (Dibrugarh) of 1986 and 383 RA (Dibrugarh) of 1986.
This petition is directed against the proceedings of Encroachment Case No. 5 of 1983 and Encroachment Case No 57 of 1986, initiated for eviction of the petitioners from the land in their occupation and the common judgment dated 15.7.87 passed by the learned Assam Board of Revenue in Case No. 115 RA (Dibrugarh) of 1986 and No. 383 RA (Dibmgarh) of 1986.
2. Petitioners' case is that their predecessor-in-interest Naresh Kanoo originally took settlement of 1 bigha of fellow land from Rupai Tea Company in the year 1939 on condition of payment of annual rent @ Rs. 25/- and after getting settlement the predecessor-in-interest of the petitioners reclaimed it for cultivation and habitation. He grew vegetables and built a dwelling house thereon. Thereafter between the period from 1962 to 1966 the predecessor-in-interest of the petitioners purchased possessory right of the adjoining plots of land belonging to the Rupai Tea Company from the occupiers thereof and continued to possess the same. The predecessor-in-interest of the petitioners thereby came to occupy a total area of land measuring 8 bighas 4 kathas 15 lechas owned by the Rupai Tea Company Ltd and continued to possess the same and after his death the petitioners are possessing the said land.
3. Petitioners' further case is that in the year 1967, local Revenue Authority after survey of the plot of land in occupation of the predecessor-in-interest of the petitioners, being satisfied that he had been possessing the said land as cultivating tenant under the owner, Rupai Tea Company Ltd,, prepared a draft reeord-of-right and issued Kacha Rayati Khatian in his favour in respect of the land. In the year 1968, the Rupai Tea Company having offered to sell the said land the predecessor-in-interest of the petitioners paid Rs. 1,500/- towards agreed price of the land. In the meantime, a proceeding under provision of the Assam Fixation of Ceiling on Land Holding Act, 1956, hereinafter referred to as the Act, having been initiated to acquire the surplus land held by Rupai Tea Company, final Rayati Khatian in favour of the predecessor-in-interest of the petitioners in respect of the land measuring 8B 4K 15L as tenant, under the Rupai Tea Company was not issued. Besides, the registered sale deed of transferring ownership right of the land was also not executed by the Rupai Tea Company. After conclusion of the proceeding under the provision of the Ceiling Act, the land in possession of the predecessor-in-interest of the petitioners along with other land of Rupai Tea Company vested in the Govt. The predecessor-in-inter st of the petitioners being a cultivating tenant under the original owner, Rupai Tea Company, in respect of the land made an application for settlement thereof. In the year 1981, some persons of the locality applied to the Revenue Authority for allotment of a portion of the land in occupation of the predecessor-in-interest of the petitioners for Rupai Siding High School. The Sub-Deputy Collector, Doom Dooma submitted a report in connection with the said application. In the said report the SDC amongst other -stated that the predeeessor-in-interest of the petitioners, had been in occupation of the land under the Rupai Tea Company on rent. The predecessor-in-interest of the petitioners filed objection against the prayer for allotment of the land to others. In spite of all these materials in favour of the predecessor-in-interest of the petitioners, the Sub-Divisional Officer, Tinsukia arbitrarily initiated a proceeding for ejectment of the predecessor-in-interest fo the petitioners from the land in his occupation in the exercise of powers under Rule 18 of the Settlement Rules and Encroachment Case No. 5 of 1983 was registered. Accordingly a notice under Rule 18 (3) of the Settlement Rules was served on the predecessor-in-interest of the petitioners asking him to vacate the land within 15 days. The predecessor-in-interest of the petitioners filed an application befo
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