Disposed

Kumud Das v. the State of Assam and 4 Ors.

Gauhati HC5 Sept 2019WP(C)/2426/2015

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition challenging a revenue auction sale from 1976. The court directed the petitioner to file an appeal under Regulation 147 and apply for condonation of delay under Regulation 148 before the Deputy Commissioner.

What did the court decide?

Petitioner directed to approach Deputy Commissioner under Regulation 147 and 148 for appeal and condonation of delay; mediation period of three months fixed.

Kumud Das Vs the State of Assam and 4 Ors. — Property and Title | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010136252015

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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) 2426/2015

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1:KUMUD DAS

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S/O LT. DHARMESWAR DAS R/O BHAKATABORI, GORAL P.O. BHATTAPARA P.S. AZARA GUWAHATI- 17 DIST. KAMRUP METRO, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, REVENUE DEPARTMENT, DISPUR, GUWAHATI-6.

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2:THE DEPUTY COMMISSIONER KAMRUP METRO, GUWAHATI.

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3:THE CIRCLE OFFICER, AZARA REVENUE CIRCLE

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4:THE MOUZADAR, RAMCHARANI MOUZA AZARA DIST. KAMRUP METRO, ASSAM.

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5:MD. DILDAR ALI

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R/O VILL- AZARA P.O. and P.S. AZARA DIST. KAMRUP METRO ASSAM

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Advocate for the Petitioner : MS.S D SAIKIA

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Advocate for the Respondent : GA, ASSAM (R-1-4)

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BEFORE HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA

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ORDER

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Date : 05-09-2019

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Heard Mr. S. P. Sarma, learned counsel for the petitioner. Also heard Mr. P. P. Das, learned counsel for the respondent No.5 and Ms. M. D. Bora, learned Govt. Advocate for the respondent Nos.2, 3 and 4.

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The petitioner is the son of late Dharmeswar Das whose name was recorded over land measuring 1 bigha covered by Dag No. 124 of K.P.Patta No. 183 of village Azara under Mouza Ramcharani in the district of Kamrup(M), Guwahati. Late Dharmeswar Das was maintaining his possession over the said land by paying land revenue. The petitioner intended to take loan during the year, 2013 by creating equitable mortgage over the said land inasmuch as after the death of his father he inherited the said land measuring 1 bigha. On obtaining the certified copy of K.P.Patta No. 183 he was surprised to find that the total land of patta No. 183 was sold in auction in the year 1975 and the name of private respondent No. 5 was purportedly recorded. As per copy of the Jamabani of KP Patta No. 183 dag no. 124 covering 5 bighas 4 kathas 15.94 lechas of land , it is recorded therein that vide order dated 8.12.1976, the name of the private respondent No. 5 was mutated over the land covering entire patta in Auction Sale Case No. 902/477 of the year 1975-76. Subsequently, by way of purchase, names of other persons are also included. Having come to know about said revenue sale, the petitioner approached the Deputy Commissioner, Kamrup(M) for restoring the Patta back in the name of the petitioner being the legal heir of late Dharmeswar Das. From the said copy of the Jamabandi, it is seen that the name of Dharmeswar Das was mutated for 1 bigha of land covered by dag No. 124 alongwith one Amir Ali by way of purchase. It is the contention of learned counsel for the petitioner that there are specific violation of the provisions under Chapter V of the Assam Land and Revenue Regulation,1886, if at all there was any revenue sale. There was no attachment of the said land before the said auction sale of movable of defaulter nor there were notices issued as required. Accordingly, the petitioner moved the Deputy Commissioner, Kamrup(M). There was no

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initiation of any action on the part of the authority concerned. Accordingly petitioner has filed this writ petition seeking the following relief:

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“Under the above facts and circumstances it is most respectfully prayed that Your Lordships would graciously be pleased to admit this application, issue rule, calling upon the respondents to show cause as to why the order dated 8.12.1976 passed in auction sell case no. 902/477/1975-76 should not be set aside and quashed and to show cause as to why the petitioner should not be put into its original position of pattadar on the land measuring 1 bigha standing on dag No. 124 covered by kheraj myadi patta no. 183 of village Azara, Lot No. 1 Mouza Ramcharani, revenue circle Azara, Guwahati, Kamrup(M) call for the records and upon hearing the parties your Lordships would graciously be pleased to make the Rule Nisi absolute, and / or be pleased to pass any such further orders(s) as your lordships may deem fit and proper.

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-AND-

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Pending disposal of the Rule, your Lordships would graciously be pleased to direct the respondents not to disturb the petitioner from possessing of his land measuring 1 bigha standing on Dag No. 124 covered by Patta No. 183 village Azara Lot No. 1 Mouza Ramcharani, Guwahati, District Kamrup(M) Assam and/ or be pleased to pass any such further order(s) as your Lordships may deem fit and proper.

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And for this act of kindness the petitioner as in duty bound shall ever pray”

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Mr. Das appearing on behalf of the private respondents submits that there were in fact two revenue sale cases, one in the year 1971 and the other one in the year 1975-76. The petitioner had challenged the subsequent one without challenging the earlier one. Moreover though the claim of the petitioner that his father purchased the land but there is no evidential proof to show that late Dharmeswar Das, the father of the petitioner purchased the land measuring 1 bigha out of the total land under the said dag No. 124. In support, Ms. Bora also submits that the petitioner have failed to establish the said purchase and under such circumstances after long delay, there is no point in entertaining this writ petition inasmuch as the petitioner had challenged the revenue sale of the year 1975-76.

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I have considered the affidavit filed by the petitioner. A report from the Lat Mandal is put on record thereby establishing that the petitioner is possessing the said land. Mauzadar of the Ramcharani Mauza also filed his affidavit-in-opposition and admitted the fact from the records that the father of the petitioner and on his death the petitioner had all along been paying the land revenue on the land in question since 1971 till death.

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Mr. Das learned counsel for the private respondent admits the fact of possession of the private respondents over the land covered by said KP Patta No. 183. On the other hand, it is also admitted by the petitioner that he is maintaining his possession over his share measuring

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1 bigha which is supported by the report of the Lat Mandal who stated that the land is vacant land and the petitioner is having his possession over the same. Chapter V of the Assam Land And Revenue Regulation, 1886 prescribed the various mode, process and the procedure to be adopted before invoking the jurisdiction under Regulation 70 of Regulation 1886 for sale of defaulting estate. Both the petitioner and the private respondent claimed to be in possession over the said land covered by KP Patta no. 183 and in such a situation, it cannot be held that the procedure required to be observed before invoking the jurisdiction under Regulation 70 of the Regulation, 1886 were complied with, of course primafacie. The fact that the revenue had all along been paid since 1971 as per the affidavit of the Mauzadar is sufficient to disprove that the land revenue was not paid and accepted by the Mauzadar. Under such circumstances, it is also not possible to learn on the part of the petitioner that an auction sale took place long back in the year, 1976. Under such circumstances and keeping in view the factual matrix, this writ petition is disposed of with a direction to the petitioner to approach the Deputy Commissioner, Kamrup(M) under Regulation 147 of the Regulation 1886 and file an appeal challenging the order dated 8.12.1976 as recorded in the copy of Jamabandi of K.P.Patta No. 183 dag No 124 alongwith the copy of this order. The said appeal must be accompanied by an application under Regulation 148 for setting aside the delay thereby urging the grounds as to why there is a delay in filing the appeal. The respondent No.2, Deputy Commissioner, Kamrup (M) shall thereafter pass necessary order invoking the jurisdiction under Regulation 148(3). Both the parties shall appear before the Deputy Commissioner, Kamrup(M) on 29.10.2019 alongwith the copy of the order passed by this court whereafter the Deputy Commissioner, Kamrup(M) shall make an endeavour to dispose of the grievance within a period of 3 (three) months from the date of appearance i.e. 29.10.2019 by passing an appropriate order after verification of the records.

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With the said observation and direction, this writ petition stands disposed of.

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Kumud Das v. the State of Assam and 4 Ors.

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Kumud Das v. the State of Assam and 4 Ors.

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