IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) 1. Md. Nizam Uddin S/O Late Masaddar Ali Vill. & P.O. Umapur, Dist. Karimganj, Assam. 2 Md Helal Uddin, S/O Lt. Siraj Uddin, Vill & P.O. Umarpur, Dist. Karimganj, Assam. 3 Md Tasim Uddin S/O Lt. Seikh Amad, Vill & P.O. Alekhargul, Dist. Karimganj, Assam. 4 Md Eklas Uddin, S/O Lt. Seikh Mamad, Vill & P.O. Alekhargul, Dist. Karimganj, Assam. 5 Md Abdul Sattar, S/O Lt. Asab Ali, Vill- Kunapara, P.O. Umarpur, Dist. Karimganj, Assam. 6 Md Kamal Uddin S/O Lt. Nazib Ali, Vill- Kunapara, P.O. Umarpur, Dist. Karimganj, Assam. 7 Md Makram Ali S/O Lt. Jayed Ali Vill & P.O. Aeiglabazar, Dist. Karimganj, Assam. 8 Md Khaliur Rahman, S/O Lt. Hasan Ali, Vill- Kunpara, P.O. Umarpur, Dist. Karimganj, Assam. 9 Md Seikh Faiyaz, S/O Lt. Seikh Ratu, Vill & P.O. Aeiglabazar, Dist. Karimganj, Assam. 10 Md Abdul Haque S/O Lt. Usuf Ali Vill- Kunapara, P.O. Umarpur, Dist. Karimganj, Assam. Petitioners. VERSUS 1. The Assam Board of Revenue (Represented by the Chairman, Assam Board of Revenue Guwahati-1, Assam) 2 The State Of Assam Rep. By Secy, to The Govt. of Assam, Revenue Department (Land Acquisition Branch), Dispur, Ghy-6. 3 The District Collector & Deputy Commissioner, Karimganj District, Karimganj, Assam. 4 The Land Acquisition Collector, Office of the Deputy Commissioner, Karimganj, Dist. Karimganj, Assam. Page 1 of 8
2 5 Md Khalilur Rahman, S/O Lt. Basir Ali, 6 Mustt. Anawara Khanam, W/O Khalilur Rahman, 7 Md Haris Ali, S/O Kutub Uddin, 8 Md Abdul Malik, S/O Lt. Kutub Uddin, 9 Md Abdul Khalique, S/O Lt. Seikh Ibrahim, 10 Md Aftab Hussain, S/O Lt. Satu Seikh, - All Residents Of Village Ailekargul, P.O. Anglarbazar, P.S. Badarpur, Dist. Karimganj, Assam. Respondents. BEFORE THE HON BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Mr. N. Dhar, Mr. B. Ahmed, Mr. N. Haque, Mr. B. Malakar. Advocates. For the respondents 2-4 : Ms. B. Devi. GA. For the respondents 5-10 : Mr. M Talukdar, Ms. M. Talukdar. Advocates. Date of hearing and Judgment : 27.7.2015. JUDGMENT AND ORDER Heard Mr. N. Dhar, the learned Counsel appearing for the petitioners. The respondents 5 to 10 are represented by the learned Counsel Mr. M. Talukdar. The learned Government Advocate Ms. B. Devi appears for the State respondents 2, 3 & 4. 2.1 The matter pertains to claim for compensation for the land requisitioned for drilling activities of the ONGC, Cachar project, through the Notification dated 7.9.1988 (Annexure-2) under Section 3(1) of the Assam Land (Requisition & Acquisition) Act, 1964 (hereinafter referred to as the Requisition Act ) in the R.C. Case No.4/1988-89. Three contesting parties are involved in this case and at the outset, they are being identified for the purpose of this order. Page 2 of 8
3 2.2 The petitioners are the 1 st litigants who claim to be Khatiandars of the disputed land and they contend that these are Daswana land and are not Illam land of the erstwhile Zamindars. The private respondents on the other hand claim to be Jotdars (tenants) under the Zamindars i.e. Abdul Matin Uddin Ahmed Choudhury and Kamal Uddin Choudhury, who were the defendants in the Title Suit No.243/1973. Since the categorization of the disputed area was converted illegally from Daswana land to Illam land by the Zamindars and Civil Court directed correction as Daswana land, the aggrieved Zamindars are the 3 rd litigating group in these proceedings. 3.1 The petitioners and their predecessors filed the Title Suit No.243/1973 for declaratory relief that the land under their possession was erroneously recorded as Illam land, whereas those lands should be categorized as Daswana land. In this suit, the Zamindars (Abdul Matin Uddin Ahmed Choudhury and Kamal Uddin Choudhury) were made the defendants. Deciding the 3 rd Issue in the suit, pertaining to the plaintiffs right, title and interest, the learned Munsiff No.2, Karimganj noted from the evidence that the suit land pertains to Daswana Taluk and is incorrectly categorized as Illam land as because the predecessors of the defendants/zamindars, illegally wanted to claim those as Illam land. The claim of the Zamindars was litigated earlier through the Title Suit No.1318/1916 but this old suit was dismissed by the learned Munsiff No.2, Syhlet. The resultant Title Appeal No.246/1918 was dismissed by the Appellate Court. The certified copies of those Courts judgments against the Zamindars were produced and considered in the suit filed by the Khatiandars. On the basis of these evidences produced in the Title Suit No.243/1973, the area was declared to belong to Daswana Taluk and thus the right of the plaintiffs/khatiandars was declared in the suit against the defendants/zamindars. 3.2 One of the defendant Zamindars, Kamal Uddin Choudhury then filed the Title Appeal No.17/1984 but the learned Asstt. District Judge by his judgment dated 15.12.1990 (Annexure-3) dismissed the Appeal and affirmed the decree in favour of the Khatiandars. 4. In the meantime, the requisition process, inter-alia, for the land covered Page 3 of 8
4 by the decree was issued for the drilling activities of the ONGC but in the notification issued under the Requisition Act on 7.9.1988, the erstwhile Zamindars i.e. Abdul Matin Uddin Ahmed Choudhury and Kamal Uddin Choudhury were erroneously shown to be the land owners by ignoring the decree passed against the Zamindars, in the Title Suit No.243/1973. 5.1 Around this period, following the judgment in the Title Suit No.243/1973 which was affirmed in the Title Appeal No.17/1984, the Asstt. Settlement Officer, Badarpur, Karimganj on 28.12.1992 (Annexure-4) ordered for correction of the land records so that the concerned area is not treated as Illam land and is correctly categorized as permanently settled Daswana land. Subsequent to correction of the revenue records, the Khatiandars applied for disbursal of the requisition compensation deposited by the ONGC authorities with the office of the Collector, Karimganj. 5.2 But since they were unable to secure their dues, the Khatiandars were forced to file the 2 nd suit i.e. Title Suit No.255/1988. In this case, the plaintiffs claimed to be in possession of the suit land with their dwelling houses and paddy cultivation and they specifically pleaded that the requisitioned land was earlier erroneously recorded as Illam land. The suit was contested by the defendants by filing Written Statement (W.S.). The learned Civil Judge (Jr. Division) No.1, Karimganj by the judgment dated 7.7.2000 (Annexure-6) however dismissed the suit by observing that the plaintiffs failed to establish their right over the suit land. 5.3 The aggrieved plaintiffs (Khatiandars) then filed the Title Appeal No.41/2000 and the learned Asstt. District Judge, Karimganj on 20.2.2000 (Annexure-7) allowed the appeal by observing that the land in the 2 nd suit was the subject of the earlier Title Suit No.243/1973 and the plaintiffs in both suits were common. Since the decree passed in the earlier case i.e. Title Suit No.243/1973 in favour of the Khatiandars wasn t considered while dismissing the Tittle Suit No.255/2008, the Appellate Court remanded the suit for fresh adjudication, by his judgment dated 20.2.2000 (Annexure-7) 6. The aggrieved defendants, who were the tenants/jotdars under the Page 4 of 8
5 Zamindars then filed the Second Appeal No.2/2003 in the High Court where the plaintiffs appeared and filed the Misc. Case No.707/2006, where they projected that in the meantime the Revenue records were corrected in plaintiffs (Khatiandars ) favour in pursuant to the decree passed in the Title Suit No.243/1973 and therefore the plaintiffs are not required to press the Title Suit No.255/2008. The High Court recorded the plaintiffs submission and after considering the submission of the defendants/appellants, the SAO No.2/2003 was dismissed by permitting the applicants to apply for withdrawal of the Title Suit No.255/2008. Thereafter the 2 nd suit was disposed of on the withdrawal application of the plaintiffs/khatiandars. 7. Since the right of the Khatiandars was earlier affirmed in the Title Suit No.243/1973 and the land records were corrected to show the area as Daswana land, the Decree-Holders approached the Deputy Commissioner (D.C.), Karimganj to receive the compensation amount deposited by the ONGC in the Requisition Case No.4/1988-89. However the D.C. erroneously treated the requisitioned area as Illam land under the erstwhile Zamindars and accordingly the right of compensation was declared in favour of the tenants/jotdars under the Zamindars. This view was taken by the D.C. since the Khatiandars allegedly failed to establish their interest over the land, through the Title Suit No.255/1988. Consequently it was held that tenants/jotdars under the Zamindars are entitled to requisition compensation, by the order dated 23.8.2006 (Annexure-10) passed by the D.C., Karimganj. 8. The aggrieved Khatiandars then approached the Assam Board of Revenue to challenge the D.C s order of 23.8.2006. In their Case No.109 RA (KJ)/2006, the Khatiandars projected that their rights were affirmed in the Title Suit No.243/1973, whereafter the Revenue records were corrected to declare that the suit land is not Illam land but Daswana land. But the learned Revenue Board after observing that the names of the 2 erstwhile Zamindars were recorded in the requisition notification dated 7.9.1988, overlooked the decree passed in the Title Suit No.243/1973 and consequently dismissed the appeal of the Khatiandars and upheld the right to compensation, claimed by the tenants/jotdars under the Page 5 of 8
6 Zamindars. 9.1 Mr. N. Dhar, the learned Counsel submits that whenever the question of title arises before the D.C., he is required to be guided under Section 100 of the Assam Land and Revenue Regulation 1886 (hereinafter referred to as the Revenue Regulation ), by the orders passed by the Civil Court and in this case, the D.C. as well as the Assam Board of Revenue, failed to consider the implication of the decree passed in favour of the Khatiandars, in the Title Suit No.243/1973. 9.2 Since the Title Suit No.255/1988 was withdrawn by the Khatiandars, Mr. N. Dhar submits that the dismissal of the Title Suit No.255/1988 under the circumstances does not amount to formal adjudication of the rights of the parties and therefore the same is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure and accordingly it is argued that the Revenue Board misconstrued the suit withdrawal order in the Title Suit No.255/2008. 10. In her turn Ms. B. Devi, the learned Government Advocate submits that since the decree in the Title Suit No.243/1973 was implemented and the Revenue records were corrected to declare the suit land as Daswana land (not Illam land), the D.C. should have been guided by the decree passed by the Civil Court. 11. As can be seen from above, the petitioners claim requisition compensation as the Khatiandars of the Daswana land, on the strength of the decree passed in the Title Suit No.243/1973 whereas the respondents 5 to 10 make their claim as the tenants/jotdars under the erstwhile Zamindars. If the concerned area is to be treated as Illam land only then, the Zamindars or their Jotdars can claim a legitimate right to compensation. But if the decree passed in the Tittle Suit No.243/1973 affirmed in the Title Appeal No.17/1984 is taken into account, the right of the Zamindars, who were defendants in the suit obviously stood extinguished since the Civil Court directed correction of the revenue records to change the land categorization from Illam to Daswana. It is also relevant to note that when the right of the Zamindars was earlier extinguished Page 6 of 8
7 under the Assam State Acquisition of Zamindaris Act, 1951 (hereinafter referred to as the Zamindaris Act ), they never objected to loss of land. Moreover the Civil Court gave their verdict against the Zamindars in the Title Suit No.243/1973 after due consideration and elaborate discussion of the previous litigating history, starting from the Title Suit No.1318/1916 initiated by the defendants/zamindars. 12. From the decision given by this Court on 7.4.2006 leading to dismissal of the SAO No.2/2003 filed by the tenants/jotdars, it is clear that direction was given for withdrawal of the Title Suit No.255/1988 and that is how, that suit was never decided on merit. 13. But notwithstanding the above implication, the Revenue Board proceeded as if a verdict was given against the Khatiandars in the Title Suit No.255/2008. But when the rights of the parties in the Title Suit No.255/2008 was never decided, the withdrawal order could not have been understood as a decree of the Court, within the meaning of Section 2(2) of the CPC and this how the Board misdirected itself. 14. Thus it is clearly discernible that notwithstanding the above legal position and also the mandate of Section 100(3), the DC and the Revenue Board, failed to take into account the effective decree passed in the Title Suit No.243/1973, whereby the right of the Khatiandars was declared against the defendants Zamindars. In the process the consequential correction of the revenue records against the Zamindars and in favour of the Khatiandars, was also overlooked by both authorities. 15. Because of the above factors, it is apparent that the decision in the Case No.109 RA(KJ)/2006 was rendered by ignoring the implication of the decree passed in the Title Suit No.243/1973. Moreover unnecessary weightage was given to the withdrawal of the Title Suit No.255/2008 when the rights of the parties was never decided by the Court. Consequently, legal mistakes were committed both by the D.C and also by the Revenue Board who failed to take Page 7 of 8
8 into account the decree passed in the Title Suit No.243/1973. 16. That apart, the learned Board of Revenue also failed to appreciate the effect of the order passed by the High Court in the Misc. Case No.707/2006 arising out of the SAO No.2/2003, whereby the plaintiffs was permitted to withdraw the Title Suit No.255/2008. 17. In the above backdrop, the claim for requisition compensation made by the Khatiandars is required to be re-considered in light of the decision passed in the Title Suit No.243/1973. Moreover since the Revenue records were consequently corrected, the authorities should have ignored the names of the 2 Zamindars in the requisition notice dated 7.9.1988, since this notice was issued 5 years after the decree in the Title Suit No.243/1973. Hence re-consideration is ordered in the Case No.109 RA (KJ)/2006 rendered by the Revenue Board in light of the observation made in this order. Consequently the impugned order dated 27.12.2007 (Annexure-11) of the Revenue Board is set aside and quashed. It is ordered accordingly. 18. With the above direction, this writ petition stands allowed. No cost. JUDGE Datta. Page 8 of 8