PRINCIPAL COMMISSIONER OF INCOME TAX SHILLONG vs. M/S COMMERCIAL IRON and STEEL CO. PVT LTD

Page No.# 1/9 GAHC010134832017

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA 200/2017 1:SRI BIDYUT TANTI and 3 ORS S/O LATE ARUN TANTI, VILL. DALHOUSIE CHAH BAGICHA, P.O. GOHPUR, DIST. SONITPUR, ASSAM. 2: ACHYUT TANTI S/O LATE ARUN TANTI VILL. DALHOUSIE CHAH BAGICHA P.O. GOHPUR DIST. SONITPUR ASSAM. 3: JAJ TANTI S/O LATE ARUN TANTI VILL. DALHOUSIE CHAH BAGICHA P.O. GOHPUR DIST. SONITPUR ASSAM. 4: SMTI ANAMI TANTI W/O LATE ARUN TANTI VILL. DALHOUSIE CHAH BAGICHA P.O. GOHPUR DIST. SONITPUR ASSAM VERSUS 1:KYANG TEA SEED COMPANY LIMITEDand 5 ORS A CO. REGISTERED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NEWPURUPBARI TEA ESTATE, P.O. GOHPUR, DIST. SONITPUR, ASSAM, REPRESENTED BY ITS AUTHORIZED

Page No.# 2/9 SIGNATORY AND CEO, SRI PARIMAL BISWAS 2:PRANAY SAHARIA S/O LATE RAMGOPAL SAHARI DIRECTOR AND SHAREHOLDER OF THE PETITIONER NO 1 RESIDING AT SURYAKIRAN BUILDING 4 ASHOKA ROAD 6TH FLOOR ALIPUR KOLKATA 700027 3:THE STATE OF ASSAM REPRESENTED BY THE SECY. TO THE GOVT. OF ASSAM DEPTT. OF REVENUE DISPUR GUWAHATI-781006 4:THE DEPUTY COMMISSIONER SONITPUR P.O. and DIST. SONITPUR ASSAM. 5:THE SUB-DIVIONAL OFFICER C GOHPUR SUB-DIVISION DIST. SONITPUR ASSAM. 6:THE CIRCLE OFFICER HALEM REVENUE CIRCLE P.O. HALEM DIST. SONITPUR ASSAM Advocate for the Petitioner : MR.D DAS Advocate for the Respondent : MR.A D CHOUDHURYR- 1and2

BEFORE HON’BLE THE CHIEF JUSTICE MR. A. S. BOPANNA HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI

O R D E R

28.02.2019: (A. S. Bopanna, CJ)

Heard Mr. K. Sarma, learned counsel for the appellants. Also heard Mr. A. D. Choudhury, learned counsel for respondent Nos.1 and 2 and Mr. T. C. Chutia, learned

Page No.# 3/9 Additional Senior Government Advocate for respondent Nos.3 to 6. The appellants are before this Court assailing the order dated 16.06.2017 passed by the learned Single Judge in WP(C) 1736/2010. The respondents herein were before the learned Single Judge initially assailing the order dated 15.07.2006 since the said date had been communicated to them as the order passed adverse to their interest. However, subsequently on gaining knowledge that such order adverse to their interest was passed on 06.06.2006, the said order has been assailed. The consequential order dated 11.01.2007 passed by the Sub-Divisional Officer (C) of Gohpur was also assailed before the learned Single Judge. Through the order dated 06.06.2006 the appellants herein were granted the ownership rights as they had claimed to be the tenants in respect of the land in question. The learned Single Judge on taking note of the rival contentions has allowed the writ petition and quashed the order dated 06.06.2006 and 11.01.2007. It is in that light the appellants herein who were respondent Nos.5 to 7 therein are before this Court in this appeal. The case of the respondents herein in the said writ petition was that the order dated 06.06.2006 was passed without giving opportunity to them inasmuch as no notice whatsoever was served and the Deputy Commissioner had not conducted the proceeding in the manner as contemplated in law. In that light it was further contended that when certain claims were made by the persons who are unrelated to the respondents herein, the claim ought not to have been entertained. To contend so, the respondents had referred to the provision as contained in Section 23 of the Assam (Temporary Settled Areas) Tenancy Act, 1971 and the Rules framed thereunder. Hence, it was contended that the procedure as contemplated under Rule 8 and 10 had not been strictly followed by the Deputy Commissioner before reaching the conclusion. In that light it was contended the Deputy Commissioner not having provided opportunity and not having made a factual determination with regard to the rights over the property had passed the impugned order. The appellants herein who were respondents in the said writ petition sought to sustain the order dated 06.06.2006 passed by the Deputy Commissioner by claiming that they were in possession and cultivation of the land in question from the period of

Page No.# 4/9 their predecessor and as such were entitled to be registered as the owners under the Act. The learned Single Judge while taking note of the rival contentions had arrived at the conclusion that the application as contemplated under the Act and Rule, in Form-5 had not been filed and no documents had been produced before the Deputy Commissioner to establish the tenancy rights over the property so as to claim acquisition of ownership. It is in that light the learned Single Judge had arrived at the conclusion that the order is not sustainable. For appropriate consideration of this appeal, it would be beneficial to take note of the observation and conclusion as made by the learned Single Judge in paragraph 12 of the order since the relevance thereof would be material for consideration of this appeal since we have also secured the original records and perused the same. The order of the learned Single Judge reads as herein under: “12. As the original records are in Assamese, the answers to the questions I have asked are answered by Mr. B Sharma, learned counsel appearing for respondent Nos. 1 to 4, after scrutinizing the records along with the petitioners’ counsel. The following answers have been given by Mr. B Sharma, learned counsel appearing for respondent Nos. 1 to 4 to the questions put forth by this Court:- (I) The Khatian, on the basis of which the respondent Nos. 5 to 8 claim that they are raiot is not in the original records. (II) There is no rent receipt in the official records showing that the respondent Nos. 5 to 8 have paid rent as tenants to any landlord. (III) There is no rent receipt in the official records in favour of the predecessor in interest of respondent Nos. 5 to 8 showing that the said predecessor in interest has paid any rent to any landlord. (IV) There is no cop y of any notice being issued to the petitioners in the official records and (V) There is no application made by the respondent Nos. 5 to 8 in Form-5, under Rule 9 of the 1972 Rules, praying for acquisition of the land, which has been settle d in favour of the respondent Nos. 5 to 8 (VI)There is no memorandum of evidence s made by the Deputy Commissioner in the records (VII) There is no declaration under Form-7 in the Official Gazette declaring

Page No.# 5/9 acquisition of the land by the respondent Nos. 5 to 8.” Learned counsel for the appellants while contending that the observation as made by the learned Single Judge with regard to the records and the application not being available in the file, was not justified has sought to contend that the application is available in the file and also that the procedure had been followed by the Deputy Commissioner. In order to satisfy ourselves as to whether the observation of the learned Single Judge relating to the contents in the file is justified, we had requested the learned Government Advocate to secure the file. It is seen that an application at page 40 of the records is available wherein it is indicated that they are in cultivation of the land relating to which the application had been made and one of the items of the property for which the rights had been sought is in Dag No.38 which is also a portion of the order dated 06.06.2006. In respect of the other land which is mentioned in the order dated 06.06.2006, the details are not indicated in the application. That apart, when a claim is made in terms of Section 23 of the Act the application should be in Form-5 and the nature of tenancy rights under the landlord is required to be stated in the application. Therefore, at the outset it is to be taken note that the application claimed to have been filed by the appellants is incomplete and does not satisfy the requirement of Section 23 of the Act and also the Rule 9 which prescribes a format in which the application is to be made, namely, Form-5. Further, records also does not disclose that the respondents herein, namely, the writ petitioners before the learned Single Judge who are owners of the property were notified and a proceeding to arrive at the conclusion to determine the rights of the appellants was held. If these aspects of the matter are kept in view, the conclusion as reached by the learned Single Judge would be justified. Learned counsel for the appellants, however, contended that even if the order dated 06.06.2006 was to be challenged, the writ petitioner was required to avail the alternate remedy of appeal as provided under Section 67 of the Act. He, therefore, contended that a consideration of the rights, in any event, could not have been made by the learned Single Judge in the writ petition. To support his contentions learned

Page No.# 6/9 counsel for the appellants relied on the decision of this Court in the case of Akhil Kumar Nikhil Kumar and Ors. vs. State of Assam and Ors. 2006 (3) GLT 690 wherein the Coordinate Bench of this Court while considering with regard to the provision for alternate remedy, had arrived at the conclusion that the writ petition under Article 226 of the Constitution of India ought not be entertained and the parties should be relegated to the alternate remedy of appeal. The learned counsel for the appellant has further relied on the decision in the case of Municipal Corporation, Aurangbad vs. State of Maharashtra and Another (2015) 16 SCC 689 to contend that in the said decision also the Hon’ble Supreme Court has held that where there are disputed questions with regard to the ownership of land a writ petition is not to be entertained by the High Court. On the question of maintainability the learned counsel for the respondent No.1 has relied on the decisions of the Hon’ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 and in the case of Harshad Chiman Lal Modi vs. DLF Universal Ltd. and Another (2005) 7 SCC 791. Having taken note of the decisions as relied by the learned counsel for both the parties it is noticed that the Hon’ble Supreme Court in the case of Municipal Corporation (supra) has taken note of the earlier decision and arrived at the conclusion wherein it is held that power to issue prerogative Writs under Article 226 of the Constitution is plenary in nature and it is not limited by any other provisions of the Constitution. It is also stated therein that the power can be exercised by the High Court, notwithstanding the alternate statutory remedy, in cases where the principles of natural justice is violated and also when an authority decide the case without jurisdiction. In the instant appeal, as already noticed the application filed by the appellants though available in the records it is not an application as contemplated under the Act, 1971 and the procedure as contemplated under Rules 1972. Therefore, in a matter of the present nature if the application was entertained, the same is without jurisdiction.

Page No.# 7/9 Further, there is no material to indicate that the respondent No.1 herein had been notified in the said proceeding. If that aspect is kept in view, the entire proceeding was behind the back of respondent No.1, without compliance of the principle of natural justice or the requirement of statutory Rules. In that circumstance, in any event, the learned Single Judge could have entertained the writ petition under Article 226 of the Constitution notwithstanding the availability of the remedy of appeal. Presently this Court, in any event, is not deciding the rights of the parties on merits with regard to the nature of the claim as made or as to whether the appellants herein are actually in possession and are the tenants of the property as claimed. That aspect of the matter, in any event, is to be considered by the competent authority under the Act after providing opportunity to both the parties. The learned Single Judge also, as noticed from the extracted portion of the order above had proceeded to notice the lack of documents and had ultimately set aside the order since the documents and the application as per requirement were not available in the records. Having arrived at the above conclusion what is also necessary to be taken note is that under Section 23 of the Act, 1971 the manner of determination to be made by the Deputy Commissioner is provided. The record does not disclose that a detail procedure as contemplated has been followed and the conclusion to pass the order dated 06.06.2006 has been arrived at based on any material which was considered during the course of the proceeding. If that be the position, the procedure as contemplated under Rules 8 and 10 has also not been followed inasmuch as even after the order dated 06.06.2006 was passed, there is no notification in the Official Gazette so as to conclude the proceeding by a declaration in accordance with law, after determining the compensation payable to the owner. Therefore, in such circumstance when the procedure as contemplated under the Act and the Rules has not been followed the decision as relied on by the learned counsel for the first respondent in the case of Pune Municipal Corporation and Another vs. Harkchand Misirimal Solankiand Other (2014) 3 SCC 183; in the case of Captain Sube Singh and Others vs. Lt. Governor of Delhi and Others, (2004) 6 SCC 440 and in the case of Commissioner of Income Tax, Mumbai vs. Anjum M. H. Ghaswala and

Page No.# 8/9 Others (2002) 1 SCC 633 will be apposite. The Hon’ble Supreme Court in the said decisions has held that when a procedure is contemplated under the statute, the same is to be strictly followed and the proceeding should be in the same manner. Therefore, if these aspects of the matter are kept in view, the order dated 06.06.2006 and the consequential order dated 11.01.2007, in any event, would not be sustainable. Having arrived at the above conclusion, the issue also is as to what is the appropriate course to be followed at this point. As noticed, an application no doubt is available in the records though the same is not in terms of the requirement and in the Form prescribed under the Act and Rules. In any event, since the appellants had made the application, an opportunity to file appropriate application and a consideration in accordance with law is required to be made after providing opportunity to respondent No.1 to put forth their defence before the Competent Authority. We have already indicated that the rights of the parties with regard to the claim relating to the property, in any event, cannot be decided in writ proceeding nor have we taken upon ourselves the burden to decide the said issue. Therefore, in such circumstance, the appropriate course would be to remit the matter to the Deputy Commissioner, Biswanath and permit the appellants herein to file an appropriate application with all details as required under the Act and Rules. If such application is filed the Deputy Commissioner shall issue notice to the respondent No.1 herein provide opportunity and on recording evidence of the parties, the Deputy Commissioner shall thereafter decide the matter in accordance with law. It is made clear that such consideration by the Deputy Commissioner would arise only if the appellants herein file such application and all necessary details within a period of 2 (two) months from the date on which a copy of this order is available. At this stage, the learned counsel for the appellants would contend that the appellants are in possession of the property and therefore, their possession be protected till a consideration by the Deputy Commissioner is made. Since, we have already arrived at a conclusion that rights of the parties will not be decided herein, we would not be justified in entering upon that aspect to decide as to whether the

Page No.# 9/9 petitioners are in possession even before such consideration is made by the Deputy Commissioner who is the Competent Authority. However, since we have remitted the matter to the Deputy Commissioner for appropriate consideration, it is ordered that the parties shall maintain status quo with regard to possession existing as on today, till a consideration is made by the Deputy Commissioner. In that view of the matter, taking note of all aspects though the learned Single Judge was justified in setting aside the orders dated 06.06.2006 and 11.01.2007 we find it appropriate to modify the order and remand the matter to the Deputy Commissioner, Biswanath District who is the Competent Authority, for fresh consideration. In that view, the instant appeal is allowed in part in terms of the observation made above.

JUDGE CHIEF JUSTICE Comparing Assistant