Page No.# 1/6 GAHC010145242017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6444/2017 M/S. AIR TRANSPORT CORPORATION A PARTNERSHIP FIRM HAVING IT'S PRINCIPAL PLACE OF BUSINESS AT 408, HAYS ROAD, CHENNAI-86 and LOCAL OFFICE AT KEDAR ROAD, FANCY BAZAR, GHY.-781001 and REP. HEREIN BY IT'S AUTHORIZED PARTNER SRI SUDHIR GOYAL, S/O. LT. BRAHMANAND GOYAL, R/O. HOUSE NO.3, BRAHMA NIWAS, 3RD BYELANE, NARIKAL BASTI, GEETA NAGAR, GHY.-781024. VERSUS THE STATE OF ASSAM and 3 ORS. REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM, REVENUE DEPTT., DISPUR, GHY.-781006. 2:THE DY. COMMISSIONER KAMRUP M M.G. ROAD GHY.-01. 3:THE CIRCLE OFFICER DISPUR REVENUE CIRCLE BASISTHA CHARIALI N.H. GUWAHATI. 4:MD. MEER AASIQ HUSSAIN S/O. LT. MEER ISFAQUE HUSSAIN BEAUTY LODGE MASJID LANE Page No.# 2/6 KAMARPATTY FANCY BAZAR GHY.-781001 KAMRUP M ASSAM Advocate for the Petitioner : MR.D SARAF, MR. R ALI,MR. T J MAHANTA,MR. A BORUA,MR.R ALI,MR.R J BORDOLOI,MR.S N SARMA,MR.S S GUPTA Advocate for the Respondent : MS.D BARMAN, MS. P R MAHANTA (R-1),S A BAKHTIAR (R- 4),MR. B J TALUKDAR, ( ADDL. SENIOR G.A),MR.S U AHMED,GA, ASSAM,FOR CAVEATOR,MR.A K SARMA,MR. N ALAM BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER Date : 27-01-2025 Heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. A. Bhattacharjee, learned counsel appearing for the respondent No.1; Mr. B.J. Talukdar, learned Additional Senior Government Advocate for the respondents No.2 and 3 and Mr. N. Alam, learned counsel for the respondent No.4. 2. Aggrieved by the order dated 29.07.2017 passed by the Circle Officer, Dispur Revenue Circle, whereby, in respect of land measuring 8 bighas 2 kathas 10 lechas covered by Dag No.607 (Old)/2813 (New) of K.P. Patta No.15(Old)/192 (New) at Village Maidam under Mouza Beltola in Mutation Case No.3618/14-15 has been ordered to be cancelled which was allowed in favour of the petitioner, the present writ petition has been instituted. 3. The facts, shorn of unnecessary details, which lead to filing of this writ petition are that the petitioner had purchased a plot of land measuring 8 bighas 2 kathas 10 lechas by the registered sale deed being Deed No.6199 dated 23.09.1966 from the predecessor-in-interest of the respondent No.4. The said land was covered by the Dag No.392(old)/559(new) of K.P. Patta No.51(Old)/15 (Old)/192(new). 4. The respondent No.4 filed an application for demarcation of the said land, which has been registered as Demarcation Case No.225/14-15. The land measuring 19.30 Ares corresponding to 1 bighas 2 kathas 4 lechas covered by Dag No.2813 (new) under which the name of the petitioner has Page No.# 3/6 been included in K.P. Patta No.51 (old)/192 (new) has been struck off and the name of the respondent No.4 has been inserted. 5. The Circle Officer, Dispur Revenue Circle passed the impugned order admittedly in a proceeding for demarcation instituted by the respondent No.4 whereby, it has been held that since the mutation in respect of land measuring 8 bighas 2 kathas 10 lechas covered by Dag No.392(old) at village Maidam under Mouza Beltola has already allowed in favour of the petitioner in Mutation Case No.1292/66-67, therefore, it is ordered to the lat mondol to cancel the mutation, which was allowed to the petitioner in respect of the land measuring 19.30 Ares covered by Dag No.607 (old)/2813 (new) of K.P. Patta No. 51(old)/192(new) at village Maidam under Mouza Beltola in Mutation Case No.3618/14-15. 6. 6. Having considered the grievance raised by the petitioner, this Court granted several opportunities to the respondent authorities particularly, the Circle Officer, Dispur Revenue Circle to file an affidavit to clarify in which dag and patta number, the name is mutated on the basis of the order dated 06.02.1970 in Mutation Case bearing Case No.1292/66-67. 7. Today, when the matter is taken up for hearing, Mr. B.J. Talukdar, learned Additional Senior Government Advocate submits that although communication has been made to the respondent authorities, no instruction has been received. Therefore expresses his inability to defend the action of the respondent authorities. 8. Mr. N. Alam, learned counsel for the respondent No.4 submits that since the mutation in respect of the said land is wrongly done in name of the petitioner, the Circle Officer has rightly passed the impugned order for cancellation of the mutation in respect of the land measuring 19.30 Ares covered by Dag No.607(old)/2813(new) under mutation case No.3618/13-14. 9. On a pointed query made by this Court, Mr. N. Alam, learned counsel submits that the Circle Officer has the power to grant mutation and he being the mutating officer, Circle Officer has the power to cancel mutation, if there is any mutation is made wrongly. 10. Mr. T.J. Mahanta, learned senior counsel for the petitioner submits that no power has been conferred upon the Circle Officer to cancel the mutation order in view of the provision, which has been conferred to the Deputy Commissioner under Section 53A(2) of the Assam Land and Revenue Regulation, 1886 and no delegation having been done in respect thereof, the impugned order is without jurisdiction and as such is illegal. 11. He submits that the impugned order dated 29.07.2017 in Demarcation Case No.225/14-15 has Page No.# 4/6 been passed in utter violation of the principles of natural justice as no notice has been issued to the petitioner either expressing his intention to cancel the mutation order or call upon the petitioners to show-cause as to why the mutation case No.3618/13-14 should not be cancelled. He further submits that no application has been filed by the respondent No.4 praying for any cancellation of the mutation order. The petitioner appears to have only filed application for demarcation. Therefore, he submits that the impugned order dated 29.07.2017 cannot be sustained and as such, prays for setting aside the impugned order. He further submits that the facts which the petitioner has categorically made in the matter has not been denied by the private respondent. 12. I have considered the submissions made by the learned counsel for the parties and also perused the materials available on record. 13. Concededly, the impugned order dated 29.07.2017 has been passed by the Circle Officer, Dispur Revenue Circle in the proceedings for demarcation. The Circle Officer by filing an affidavit has taken the stand, which is reproduced below:- “4.That with regard to the statements made in paragraph 3 of the writ petition the deponent begs to state that as per revenue land record available in this office, it is seen from the LR staff report that the petitioner, M/S AIR TRANSPORT CORPORATION had filed an application for mutation of his land vide Mutation Case No. 3618/13- 14 in respect of the land measuring 8 Bigha 2 Katha 10 Lechas covered by Dag No. 607(0)/2813(N) of K.P. Patta No. 15(0)/192(N) of village 1 No. Maidamgaon under mouza Beltola. And on the basis of the report submitted by the Lot-Mondal in the said mutation case, it is seen that the then Circle Officer passed an order dated 01/09/2014 by which mutation was allowed in favour of M/S AIR TRANSPORT CORPORATION in place of the seller, ISPAK HUSSAIN'S heir MD. MEER ASHIQ HUSSAIN, son of Late Meer Ispak Hussain in respect of the land measuring 19.30 Ares (i.e 1 Bigha 2 Katha 4 Lechas) in Dag No. 607(old)/2813(new) of KP Patta 51(old)/192(new) of village 1 No. Maidamgaon under mouza Beltola and accordingly the revenue records were corrected subsequently, It is also seen that the land measuring 8 bigha 2 katha 10 lechas covered by Dag No.392 (old)/559 (new) of the said village was purchased from Ispak Hussain vide registered sale deed no. 6199 dated 22/09/1966. It is seen from the examination of the draft chitha that the Dag No. 559 emerged from Dag No. 392 and Dag No. 607 emerged out of Dag no. 559. Again, as per the final records resulting from settlement operations, it is seen that the new dag No. 2813 emerged out of Dag No. 607. As per revenue records, the area of the land in Dag No. 2813 is 19.30 Ares. After the death of the Seller ISPAK HUSSAIN, his heir MD. MEER ASHIQ HUSSAIN son of Late MEER ISPAK HUSSAIN was the recorded pattadar. Since it was purchased and the land was in their possession, it is seen that the mutation order in regard to land measuring 19.30 Ares (i.e 1 Bigha 2 Katha 4 Lechas) in favour of M/S AIR TRANSPORT CORPORATION was passed by the then Circle Officer and accordingly, thereafter the revenue records were corrected. It is seen that a prayer for demarcation was filed by the respondent no. 4 and accordingly proceeding was taken up in the demarcation case no. 225/14-15. During joint verification of the land carried out in presence of the parties, it is seen that the mutation in respect of land measuring 8 Bigha 2 Katha 10 Lechas covered by the said old dag No. 392 was already allowed in favour of M/S AIR TRANSPORT CORPORATION vide order dated 06/02/1970 in Mutation Case Page No.# 5/6 bearing KP Case No. 1292/66-67 on the basis of its sale deed of 1966. It was also seen that despite the mutation was allowed in favour of M/S AIR TRANSPORT CORPORATION in the said Mutation Case No.1292/66-67, the petitioner had filed another case for mutation in respect of the same schedule of land which was also allowed in Mutation Case No. 3618/13-14 as per order dated 01/09/2014 by the then Circle Officer. AM Therefore considering the aforesaid aspects of the matter, it is seen from the record that the mutation in respect of land measuring 8 bigha 2 katha 10 lechas covered by old Dag No.392 of old K.P. Patta No.15 at village 1 No. Maidamgaon under Beltola Mouza was already allowed in favour of M/s Air Transport Corporatio in Mutation Case No.1292/66-67, so, the then Circle Offie had cancelled the subsequent mutation order dated 01.09.2014 in Mutation Case No.3618/13-14 in favour of the petitioner in respect of the part of the same land measuring about 19.30 ares covered by Dag No.607(O)/2813 new)/ of K.P. Patta No.51(old)/192(new) of village 1 No. Maidam Gaon under Beltola Mouza vide order dated 29.07.2017 passed in Demarcation Case No.225/14-15. 8. That with regard to the statements made in paragraphs 10 and 11 of the Writ petition the deponent begs to state that a perusal of para 10 indicates that a joint verification of the land was done on 26/12/2016 and written objection of the petitioner was also filed in the proceeding, which was countered by the respondent no. 4. Hence, it is apparent that the proceeding of the case was not made in absence of the petitioner. 14. It is seen that the Circle Officer has stated that a joint verification of the land was done on 26.12.2016 and written objection of the petitioner was also filed in the proceedings which was countered by the respondent No.4. On perusal of the stand taken by the Circle Officer, i.e. the respondent No.3, it appears that the proceeding was for demarcation and joint verification to that effect has been made where the parties have made their objections and countered objections. 15. The issue to be determined as to whether the Circle Officer has the authority to cancel the mutation/registration under the law. 16. Regulation 53A(2) of the Assam Land and Revenue Regulation, 1886 provides which is extracted herein under :- “53.A(2) Where any person is aggrieved by an order directing registration under this section which has been made after verification of the information received by local inquiry only, he may (within a period of 3 years of he date of such order) apply to the Deputy Commissioner to have such order set aside and on receipt of such application the Deputy Commissioner shall cancel the registration and then proceed to published the notice and hold the inquiry prescribed by section 52 and 53 as if an application for registration had been received from the person whose name had been registered.” 17. On bare perusal of the above provision shows that it is the Deputy Commissioner who has vested with the power of cancellation of the mutation/registration order and there is no provision which empowers the Circle Officer to cancel the mutation/registration order under the law. Page No.# 6/6 18. Having considered the mater in its entirety particularly the provision under Section 53.A(2) of the Assam Land and Revenue Regulation, 1886, I am of the considered view that the impugned order has been passed by the Circle Officer without jurisdiction. Thus, the same is not sustainable. Consequently, the impugned order dated 29.07.2017 passed by the Circle Officer, Dispur Revenue Circle whereby the mutation which was allowed in favour of the petitioner in respect of land measuring 19.30 acres corresponding to land measuring 1 bigha 2 katha 4 lechas covered by dag No.607 (old)/2813 (new) of K.P. Patta No. 51 (Old)/192 (new) in Mutation Case No. 3618/13-14 is hereby set aside and quashed. 19. It is provided that the name of the petitioner be restored. However, having been informed that a title suit is pending before the appropriate Civil Court, it is provided that there shall not be any bar to proceed with the title suit in accordance with law. JUDGE Comparing Assistant