Allowed

Hiralal Baxi and 7 Ors. v. the State of Assam and Ors.

Gauhati HC12 Nov 2018WP(C)/4463/2010

Case brief

AI extract

What is this about?

Eight petitioners challenged an order by the Assam Board of Revenue that set aside a mutation in their favor, referring to fraud. The Court allowed the writ, holding the Board exceeded its jurisdiction by deciding title beyond the Civil Court decree and quashed the order, noting the respondent's trust deed was unregistered and invalid.

What did the court decide?

The judgment and order of the Assam Board of Revenue dated 08.04.2010 were set aside and quashed; Writ Petition allowed without order as to costs.

Hiralal Baxi and 7 Ors. Vs the State of Assam and Ors. — Land Acquisition | Gauhati HC (2018)

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GAHC010106792010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 4463/2010

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1:HIRALAL BAXI and 7 ORS

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2: SHANTI DEVI BAXI

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W/O HIRALAL BAXI

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3: SOBHA DEVI BAXI

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W/O SURENDRA KUMAR BAXI

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4: KESHRI CHAND BHURA

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S/O DIP CHAND BHURA

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5: RAJENDRA KUMAR BHURA

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S/O KISHAN LAL BHURA

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6: SANDEEP KUMA BHURA

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7: SANJAY KUMAR BHURA

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NO. 7 and 8 ARE SONS OF KESHRI CHAND BHURA NOS. 1 TO 8 ARE R/O KARIMGANJ TOWN WARD NO. 21 PO/DIST. KARIMGAN

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VERSUS

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1:THE STATE OF ASSAM AND ORS

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REP. BY ITS SECRETARY, GOVT. OF ASSAM, REVENUE DEPTT., DISPUR, GHY-6.

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2:ASSAM BOARD OF REVENUE PANBAZAR GHY

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3:THE DY. COMMISSIONER KARIMGANJ DIST. KARIMGANJ

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4:THE SETTLEMENT OFFICER KARIMGANJ DIST. KARIMGANJ

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5:SRI SRI BIJOY KRISHNA SADAN ASHRAM HAVING ITS HEAD OFFICE AT VILLAGE - MUMRAKHLI NEAR KOLKATA PO. NARENDRAPUR DISTRICT-24 PARGANAS WEST BENGAL HAVING ITS BRANCH OFFICE SITUATED AT DURGANAGAR DIST. KARIMGANJ REP. BY - AMAL KANTI RAHA R/O TRUSTEE SRI SRI BIJOY KRISHNA SADAN ASHRAM KAMAKHYA GUWAHATI

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Advocate for the Petitioner : MS.J BORA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN

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ORDER

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Date : 12-11-2018

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Heard Mr G N Sahewalla, learned Senior Counsel, assisted by Mr P Deka, learned counsel for the petitioners; Mr P S Deka, learned Standing Counsel, Revenue Department, Government of Assam, for respondent Nos. 1 to 4. Also heard Mr R Sharma, learned counsel for respondent No. 5.

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8 (eight) petitioners have joined together and have instituted the present common

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proceeding.

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By filing this petition under Article 226 of the Constitution of India, petitioners seek setting

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aside of judgment and order dated 08.04.2010, passed by the Assam Board of Revenue at Guwahati, in Appeal Case No. 130 RA (KJ)/2008.

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Be it stated that by the aforesaid judgment and order dated 08.04.2010, the aforesaid revenue appeal preferred by respondent No. 5 was allowed by the Assam Board of Revenue by setting aside order(s) passed by the Settlement Officer, Karimganj, in favour of the petitioners.

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This Court by order dated 08.11.2010, had issued notice and passed an interim order staying the operation of the judgment and order dated 08.04.2010, passed by the Assam Board of Revenue.

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Facts of the case may be stated briefly.

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6.1. Nripendra Nath Dutta, Ishan Chandra Bhattacharya and Maharaja of Tripura jointly owned

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land measuring 1200 acres of Durganagar Tea Estate, presently situated in the district of Karimganj.

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Out of the aforesaid land, 160 acres of land was possessed by father of Pri Khasia, i.e., Pring Khasia and predecessors of Keying Khasia, Stanley Khasia and some other persons belonging to Khasi community as agricultural tenants.

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It appears that the 1200 acres of Durganagar Tea Estate was purchased by Tripura State Bank Limited sometime in the year 1946.

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Jogeswar Laskar purchased the Durganagar Tea Estate from Tripura State Bank Limited. Since Jogeswar Laskar could not pay the entire consideration money, a mortgage deed was executed between Jogeswar Laskar and Tripura State Bank Limited vide Mortgage Deed No. 4914/47 dated 28.06.1947. It is stated that for failure of Jogeswar Laskar to pay the remaining

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consideration amount, Tripura State Bank Limited instituted a mortgage suit being Mortgage Suit No. 59/1951 in the Court of Sub-Judge at Silchar, which was decreed in favour of the plaintiff, i.e., Tripura State Bank Limited.

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In 1952, Tripura State Bank Limited initiated execution proceeding being Execution Case No. 12/1952, in the course of which, Tripura State Bank Limited itself purchased the Durganagar Tea Estate.

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According to petitioners, Assam State Acquisition of Zamindari Act, 1951, came into force by which Pri khasia and other persons in possession of over 160 acres of land of Durganagar Tea Estate acquired the status of land holder. It is further stated that during settlement survey carried out in the year 1957-58, names of Pri khasia and others were recorded as tenants against Dag No. 28.

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In the year 1959, Tripura State Bank Limited was ordered to be wound up by Judicial Commissioner at Agartala (Tripura) and the State Bank of India was appointed as the official liquidator on 19.01.1959.

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On liquidation, Durganagar Tea Estate was purchased by Swami Paramananda Saraswati on 04.09.1963 by a registered sale deed. As a result, during the settlement operation of 1968, final khatian was prepared in the name of Swami Paramananda Saraswati on behalf of Durganagar Tea Estate.

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Land Ceiling Case No. 47/1973 was registered in respect of which Government of Assam issued notice to Swami Paramananda Saraswati for submitting return of the excess land.

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In the meanwhile, Swami Paramananda Saraswati leased out the entire Durganagar Tea Estate to M/s Moonmoon Tea Company Private Limited for the period from 01.01.1973 to

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31.12.2002. However, on 01.02.1976, Moonmoon Tea Company Limited surrendered the lease and delivered possession of Durganagar Tea Estate back to Swami Paramananda Saraswati only to be leased out again by Sri Paramananda Saraswati to M/s Moonmoon Tea Company Limited for a period of 30 years from 14.02.1976 till 13.02.2005.

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Pri-khasia and five others instituted Title Suit No. 24 of 1977 against M/s Moonmoon Tea Company Limited before the Court of Munsiff, Karimganj, seeking a decree for declaration of possession and injunction in respect of 160 acres of land of Durganagar Tea Estate. When the learned trial Court granted injunction in favour of the plaintiffs, M/s Moonmoon Tea Company Limited filed Misc. Appeal No. 27 of 1977 in the Court of Additional District Judge, Silchar, which was, however, dismissed on 14.03.1973. Ultimately it appeared that Title Suit No. 24 of 1977 was decreed on compromise vide judgment and decree dated 30.04.1979. It is seen that a number of sale transactions took place prior to or at the time when the suit was finally decreed. Pri khasia sold some of his portion of land to Abhijit Singh, Sukumar Das and Subhash Dasgupta with two others vide registered sale deed No. 8382 dated 08.09.1978. Thereafter, Subhash Dasgupta sold his share of land to Bimal Behari Singha and Kalpana Mazumdar vide registered sale deed No. 9377 dated 12.09.1980. Abhijit Singh and Sukumar Das sold out a portion of their share of land to Smt Shanti Devi Baxi (petitioner No. 3) vide registered sale deed No. 8752 dated 13.12.1985. Both of them,

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i.e., Abhijit Singh and Sukumar Das again sold their share of land to Sri Surendra Kumar Baxi (petitioner No. 2) vide registered sale deed No. 8753 dated 13.12.1985.

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16.1. Sukumar Das sold his share of land to Smt Sobha Devi Baxi (petitioner No. 4) vide registered sale deed No. 8754 dated 13.12.1985.

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In the meanwhile, Swami Paramananda Saraswati expired in the year 1980.

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In connection with the Land Ceiling Case No. 47 of 1973, Collector, Karimganj prepared a return of land dated 17.11.1987, held by Durganagar Tea Estate for special cultivation of tea in excess under Section 4 (2) and Section 5 of the Assam Fixation of Ceiling on Land Holdings Act, 1956. Land measuring 73.20 acres under Dag No. 28 of village-Ghograkona Part-IV was marked as excess land. Another 17 acres of land though marked as excess was free from any occupancy tenant.

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Continuing with the sale of land, Abhijit Singh sold his balance share of land to petitioner No. 1, Sri Hiralal Baxi and petitioner No. 2, Sri Surendra Kumar Baxi (jointly) vide registered sale deed No. 2221 dated 22.06.1988. Sukumar Das sold his share of land to the petitioner No. 5, Sri Keshri Chand Bhura, vide registered sale deed No. 2224 dated 22.06.1988. Subhash Dasgupta sold his share of land to Sri Biman Behari Singha and Kalpana Mazumdar vide registered sale deed No. 9377 dated 12.09.1980. Biman Behari Singha sold his share of land to Sri Rajendra Kumar Bhura, vide registered sale deed No. 2225 dated 22.06.1988. Finally, Kalpana Mazumdar sold her share of land to petitioner No. 5, Sri Keshri Chand Bhura, vide registered sale deed No. 2472 dated 16.07.1988.

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Pursuant to the decree passed in Title Suit No. 24 of 1977, Settlement Officer, Karimganj, in MC Case No. 29 of 1990-1991, allowed mutation with respect to land measuring 90.20 acres covered by Dag No. 28 in the name of Pri Khasia and others. Subsequently, mutation was allowed in favour of Abhijit Singha and others on the basis of right of purchase and possession of land.

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Pri Khasia by relinquishment deed No. 2408 dated 01.10.1991, confirmed sale of 90 acres of land and also relinquished 70 acres of land (total 160 acres) over which, he and his predecessors were in possession, in favour of respondent Nos. 2, 3, 4 and 5.

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In the meanwhile, it is alleged that as per the nirdeshnama, (loosely translated it would mean a deed of directives of Sri Paramananda Saraswati) a trust under the name and style of “Sri Sri Bijoy Krishna Sadan Ashram” (respondent No. 5) was formed following declaration of Sub-Judge, Alipur, West Bengal.

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Settlement Officer, Karimganj, in Misc Case No. 57 of 1997 allowed mutation of the aforesaid land in favour of the petitioners. Though objection was filed by respondent No. 5, the same was not considered. At that stage, respondent No. 5 preferred appeal before the Assam Board of Revenue being Revenue Appeal No. 65 RA (KJ) of 2000. On the limited point of service of notice, the appeal was allowed by the Assam Board of Revenue vide order dated 29.08.2005 and the matter was remanded back to the Settlement Officer, Karimganj for a fresh decision. On such remand, the matter was registered as Misc Case No. 1 of 2008 and vide order dated 02.09.2008, Settlement Officer confirmed the earlier mutation granted in favour of the petitioners and directed issuance of final Patta.

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This came to be challenged by respondent No. 5 before the Assam Board of Revenue in the related Appeal Case No. 130 RA (KJ) of 2008, which was allowed vide judgment and order dated 08.04.2010, whereby the order dated 02.09.2008 passed by the Settlement Officer, Karimganj, was set aside. Observing that “ This seems to be a case of fraud wherein an attempt has been made to take away Ceiling Surplus land and the land of the appellant” , Assam Board of Revenue referred the matter to the Principal Secretary to the Government of Assam in the Revenue Department for having a criminal case registered in the matter with the CID.

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Review petition filed by the petitioners was dismissed by the Assam Board of Revenue on 08.07.2010.

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The long narration of facts as noted above do not cloud the core issue before the Court. The issue for consideration is whether Assam Board of Revenue was justified in interfering with the order of mutation or rather with the order confirming mutation in favour of the petitioners by the Settlement Officer, Karimganj.

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But before proceeding further, it would be relevant to examine the nature and character of respondent No. 5, who claims its existence on the basis of a deed of trust following nirdeshnama of Swami Paramananda Saraswati and on the basis of the order of the Civil Court at Alipur, West Bengal. First of all, the nirdeshnama had surfaced after expiry of Swami Paramananda Saraswati. The deed of trust which resulted in the constitution of respondent No. 5 has not been annexed to the writ petition. However, there is no dispute that the said deed of trust has not been registered as per requirement of Indian Trusts Act, 1882.

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Indian Trusts Act, 1882 was enacted to define and amend the law relating to private trusts and trustees. Section 3 of the Indian Trusts Act, 1882 (1882 Act) contains the interpretation clause. “Trust” has been defined to mean an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. The expression “author of the trust” has been defined to mean the person who reposes or declares the confidence. The person who accepts the confidence is the “trustee” and the person for whose benefit the confidence is accepted is called the “beneficiary”. Section 5 of the 1882 Act is relevant and it deals with trust of property; first part dealing with immovable property and the second part deals with trust of movable property. First part of Section 5 says that no trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered; or by the will of the author of the trust or of the trustee. Thus, as per Section 5, to be a

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valid trust in relation to immovable property, it must be declared by a non-testamentary instrument in writing and which must be signed either by the author of the trust or the trustee or must be due to the will of the author of the trust or of the trustee. The second and the most crucial requirement is that such trust has to be registered.

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In the course of hearing, Mr Sahewalla, learned Senior Counsel for the petitioners has placed before the Court a copy of the judgment and decree dated 29.08.2018, passed by the Court of Munsiff at Karimganj in Title Suit No. 85 of 2010 (Bijoy Krishna Sadhan Ashram Trust –VsDeputy Commissioner, Karimganj). Though this judgment has not been brought on record either as a part of the writ petition or by way of subsequent affidavit, since this is a judgment of a Court, this Court can take judicial notice of the said judgment.

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29.1 Adverting to the judgment and decree dated 29.08.2008, it is seen that the suit was instituted by respondent No. 5 and one of its members and amongst the issues which came up for consideration before the Civil Court were the following:-

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“ d. Whether the land pertaining to survey Dag No. 28 under Mouza-Ghograona Part-IV an area measuring 90.20 acres is a part and parcel of Durganagar Tea Estate owned by Srimat Swami Paramananda Saraswati and subsequently belonging to Sri Sri Bijoy Krishna Sadhan Ashram Trust?

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e. Whether order passed in Misc Case No. 29 of 1991 by A. Deb Laskar, S.O. Karimganj is illegal, malafide, arbitrary and created under influence of petitioner of the Misc Case and impugned order dated 11.10.1991 is liable to be quashed?

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f. Whether order passed on 01.09.1997 in Misc Case No. 57 of 1997 passed by S.O. Karimganj under survey Dag No. 28 and impugned order liable to be quashed?

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g. Whether plaintiff is entitled to get Patta under Dag No. 28 after correcting record of right covered under Survey Dag No. 28 Mouza-Ghograkona?”

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Civil Court held that it was proved that at one point of time, the suit land, i.e., 160 acres of

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land, which is the subject matter of the present writ petition too, was owned by Swami Paramananda Saraswati. Civil Court found that the nirdeshnama which was exhibited as Exhibit-4 was not a registered instrument, but was a printed booklet. Though declaration of the learned SubJudge, Alipur, West Bengal, was exhibited as Exhibit-5, Civil Court came to the conclusion that without being registered there cannot be a valid trust, vis-à-vis immovable property and, therefore, plaintiff No. 1, i.e., respondent No. 5 herein, had no locus standi to institute the suit. Referring to the order(s) passed by the Settlement Officer, Civil Court held that those orders were in conformity with the decree passed in Title Suit No. 24 of 1977. The decree passed therein had not been set aside by any higher Court and thus had attained finality. Therefore, it was decreed that plaintiffs were not entitled to get Patta over the land under Dag No. 28.

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Having discussed the above, impugned judgment and order dated 08.04.2010 may now be adverted to, relevant portion of which is extracted hereunder:-

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“ The respondents have primarily based their claim on the orders of the Hon’ble Munsiff, Karimganj dated 30.04.1979 in Title Suit No. 24/77. Their case is that once the Title Suit has been settled by the Hon’ble Munsiff the learned Settlement Officer had no option but to record the names of Pri Khasia and thereafter by the purchaser.

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The facts of the case as they emerge, create an awkward picture. The ownership of the Tea Estate in question originally is of Srimat Swami Paramananda Saraswati. Thereafter, the Trust formed by him, the present appellant, is the owner. Compromise Deed signed by somebody other than the owner, is a case wherein the learned Court had been misled. Decree holder, thereafter, has not approached for mutation of his name ever. In between his name has been stuck off as an occupancy tenant and a ceiling case has been finalized. The Compromise Deed also only states that there is no objection to the inclusion of

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the name of Pri Khasia in the land records. It does not state that ownership stands transferred or the name would be recorded in place of the owner. Even in 1991, Pri Khasia has not approached for mutation of his name. It is others who have approached with three Registered Relinquishment Deeds signed by Pri Khasia for himself and others. How the learned Settlement Officer accepted a Relinquishment Deed as a valid document of transfer of title by purchase is not understood. With the Relinquishment Deed, whatever rights Pri Khasia and others had over the land got extinguished and so far as he is concerned, the land become Government land. The Settlement Officer does not have the authority to settle land as per the policy directions and other provisions. Even if the Decree of the Civil Court is examined, Pri Khasia and others only obtained orders of having their names mutated in land records. The Compromise Deed which forms a part of the Decree, does not state that the name of Srimat Swami Paramananda Saraswati would be deleted. Whatever right Pri Khasia had have been lost by his not approaching the Revenue authorities for mutation ever and also by signing Relinquishment Deeds.

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It is on record that a land ceiling case was initiated against the Durga Nagar Tea Estate in which 73.20 acres of land out of 90.20 acres of Dag No. 28 had been declared to be in excess and, therefore, was required to be made Sarkari. The remaining 17 acres of land was found to be free from occupancy tenant and was left with the appellant.

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In view of the above, the appeal is allowed. The impugned order of the Settlement Officer dated 11.10.1991 passed in Misc Case No. 29 of 1990-91, order dated 01.09.1997 passed in Misc Case No. 57 of 1997 and order dated 02.09.2008 passed in Misc Case Nl. 1/08 are all set aside. Any further mutation allowed on the basis of acceptance of the ownership of Pri Khasia over the 90.20 acres of land of Dag No. 28 are also set aside. Action in respect of Dag No. 28 be taken in accordance with the order passed in the Land Ceiling Case No.

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47/1973. In terms of the said Ceiling Case 73.20 acres of Dag No. 28 be made Sarkari and action be taken by the learned Deputy Commissioner, Karimganj in respect of this land as per the guidelines laid down for ceiling Surplus land. Remaining 17 acres of land in the said Dag number shall remain to be mutated in the name of the appellant as was allowed to be retained in the said ceiling case.

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Before parting with this case some more directions need to be given. This seems to be a case of fraud wherein an attempt has been made to take away Ceiling Surplus Land and the land of the appellant. The Revenue Authorities also seem to be involved in it. A land celing case was initiated in 1973. A tenant obtained a decree from a Civil Court in 1979 based on a Compromise Deed which was not signed by the owner. The decree-holder is not in the picture thereafter. In 1991 some persons approach the Settlement Officer for mutation of their names based on three Relinquishment Deeds of the decree-holder. The Settlement Officer first mutates the name of the decree-holder without an application from him on the basis of a decree which is twelve years old, and then mutates the names of others by right of “Purchase and Possession vide R.D. No………..” A Relinquishment Deed has been accepted by the learned Settlement Officer to have created the right of purchase. The Secretary of the Board will refer this case to the learned Principal Secretary to the Government of Assam in the Revenue Department for having a criminal case registered in the matter with the CID.”

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On going through the impugned judgment and order dated 08.04.2010, it is seen that the Assam Board of Revenue had gone beyond the decree of the Civil Court dated 30.04.1979, passed in Title Suit No. 24 of 1977 and virtually nullified the order of the Civil Court. It is settled proposition of law that in a revenue appeal, Assam Board of Revenue cannot decide title and certainly cannot go beyond the decree of the Civil Court. Assam Board of Revenue cannot sit in appeal over a finding of fact returned by a Civil Court. That apart, directions to register criminal

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case appears to be overstepping jurisdiction.

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Settlement Officer had mutated the names of the petitioners in the land records in so far the land in question is concerned on the strength of the Civil Court decree which had attained finality. No fault can be found with the same.

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Moreover, the nirdeshnama of Swami Paramananda Saraswati had surfaced only after his death, that too, in West Bengal and not in Karimganj, which raises grave doubts about its authenticity. But most importantly, the deed of trust allegedly based on such nirdeshnama, which led to constitution of respondent No. 5 is not registered as per requirement of Section 5 of the 1882 Act rendering the same untenable in law. Therefore, such a deed would have no legal consequence and anything constituted on the basis thereof would be devoid of any legitimacy in law.

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Upon thorough consideration of the matter, impugned judgment and order of the Assam Board of Revenue dated 08.04.2010 cannot be sustained and is accordingly set aside and quashed.

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Writ petition is allowed, but without any order as to cost(s).

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JUDGE

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Comparing Assistant

Hiralal Baxi and 7 Ors. v. the State of Assam and Ors.

Case brief

What is this about?

What did the court decide?

Hiralal Baxi and 7 Ors. v. the State of Assam and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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