IMPORTANT POINT
The Deputy Commissioner cannot strike off a name from land records solely based on non-possession without considering the interest in the estate.

JUDGMENT :

(Devashis Baruah, J.)

Heard Mr. B. Dutta, the learned senior counsel assisted by Mr. S Deka, the learned counsel appearing on behalf of the petitioner and Mr. M. Chetia, the learned Government Advocate, Assam appearing on behalf of the respondent Nos.2, 3 and 4. I have also heard Mr. SS Roy, the learned counsel appearing on behalf of the respondent No.5.

2. The petitioner herein has assailed the order dated 01.10.2018 passed by the Deputy Commissioner, Tinsukia i.e. respondent No.2 whereby in exercise of Rule 116 of the Settlement Rules framed under the Assam Land and Revenue Regulations, 1886 (for short, ‘the Regulation’) had struck off the name of the petitioner from the Register of Records in respect to land measuring 5 bighas 0 katha 13 lechas and 9 bighas 4 kathas 10 lechas totalling to 15 bighas 0 katha 3 lechas contained in Dag Nos. 12 and 13 of Patta No.2 of No.2 Patia Pathar village under Mouza-Tinsukia in the District of Tinsukia, Assam (for the sake of convenience referred to as ‘the land in question’) and reverted the land back to the State Government.

3. The issue which has been raised in the instant proceedings is as to whether merely because of the fact that the petitioner is not in possession of the land in question, the Deputy Commissioner can resort to the powers conferred under Rule 116 of the Settlement Rules.

4. The materials on record categorically show that the petitioner is a company which owns a tea estate in the name and style of Sewpur Tea Estate. The record further reveals that the petitioner had been duly making payment of the land revenue from time to time as is evidenced from Annexure-2 series. Be that as it may, a show cause notice was issued on 27.08.2018 informing the petitioner that the land in question have been used by the respondent No.5 as a dumping ground for last many years and as such, asking the petitioner to show cause as to why the powers under Rule 116 of the Settlement Rules should not be exercised.

5. The petitioner thereupon submitted a reply dated 20.09.2018 stating inter alia that the powers under Rule 116 of the Settlement Rules cannot be invoked in the facts and circumstances of the case and, accordingly, requested the respondent No.2 to withdraw the said notice. Be that as it may, the impugned order was passed on 01.10.2018, thereby the petitioner’s name was struck off in respect to the land, in question. It is under such circumstances, the instant writ petition was filed challenging the order dated 01.10.2018 (for the sake of convenience to be referred to as ‘the impugned order’). In addition to that, the petitioner had also sought for a mandamus directing the respondent No.5 to remove the dumping garbage from the land in question.

6. It is seen that pursuant to various orders being passed by this Court, an affidavit-in-opposition was filed by the respondent No.2 whereby at paragraph 6 of the said affidavit-in-opposition, it is mentioned that as the petitioner is not in possession of the land in question since 24 years, the power under Rule 116 of the Settlement Rules was exercised. In addition to that, it has also been mentioned that the said land in question has been kept vacant for ancillary purpose and there is a reference also being made to the provisions of the Assam Fixation of Ceiling on Land Holdings Act, 1956 (for short, the Act of 1956).

7. At this stage, this Court finds it relevant to take note of that the Act of 1956 is an enactment to impose limits on the amount of land that may be held by a person. It is also apposite to mention that in terms with the Act of 1956, the land held and utilised for special cultivation is outside the purview of the Act of 1956. Additionally, it is pertinent also to observe that land reserved upon proceedings initiated under the Act of 1956 for ancillary purpose is outside the scope of the Act of 1956.

8. This Court had duly heard the learned counsel appearing on behalf of the petitioner as well as the learned counsel for the