JUDGMENT
1. Heard Mr. B.M. Sarma, learned Counsel for the appellants as well as Mr. C.K. Sarma Barua, learned Senior counsel assisted by Mr. A. Das, learned Counsel appearing on behalf of Respondent No. 3 and Respondent No. 4 and also heard Ms. A. Hazarika, learned Additional Sr. Govt. Advocate appearing for the official respondents.
2. This writ appeal before us has been carried from the judgment and order dated 6.3.2003 passed by the learned Single Judge in C.R. No. 3228/97 dismissing the writ petition preferred by the appellants as writ petitioners who moved the Writ Court assailing the judgment and order dated 10.6.1997 passed by the learned Member, Assam Board of Revenue, Guwahati in two appeals being Nos. R.A. 55(K)/93 and R.A. 138(K)/93. The moot question raised herein is as to whether under Section 15 of the Assam State Acquisition of Lands belonging to Religious and Charitable Institution of Public Nature Act, 1959 (for short, ‘the Act’), the land acquired under the Act can be settled to a person other than the raiyat, privileged raiyat under the Assam (Temporarily Settled Districts) Tenancy Act, 1935 (for short, ‘the Act of 1935’), occupancy tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, ‘the Act of 1971’) therein and other related class of persons under Assam Land and Revenue Regulation, 1886.
3. Before delving upon, the issue involved in this case, it would be apt and necessary to notice the factual matrix of the case in a nutshell.
4. The Ugratara Devalaya, a Hindu religious institution (in short, ‘the Devalaya’) was the original owner of the land covered by the Dag No. 3862 and Dag No. 3863 under L.K. Patta No. 1 of Sahar Guwahati, situtated at Uzan Bazar, Guwahati, Part-1, Mouza Ulubari. The temple area extends from the bank of Jorpukhuri in the east to the Lamb Road to the west. The said Devalaya has a mandir known as Ugratara Mandir and the mandir area where ritual Puja performances are held including the sacrificial area, is enclosed by a brick wall. Beyond the western, wall, the space provides for entry into the Lamb Road. The Lamb Road is in front of the Devalaya. The said space is a compound appertaining to the mandir and some flowers are grown there which are used for Puja performance. This space is between the Lamb Road and western boundary wall of the mandir where preachers reside is the only space which allows a proper view of the temple from the Lamb Road. This space, being part of compound of the Devalaya, is the bone of contention in the present case. The said mandir area enclosed by a brick wall was originally covered by Dag No. 3863 while the said open space in front of it was covered by Dag No. 3862. In the last re-resettlement operation, the old Dag No. 3863 had been re-numbered as Dag No. 932 while the Dag No. 3862 had been split up into three new Dag Nos. 933, 934 and 935. The land in-dispute is pertaining to Dag No. 933 and Dag No. 935 under L.K. Patta No. 1.
5. The predecessor-in-interest of the appellants who are the sons of Late Promoda Kanta Sarma of Uzan Bazar, Guwahati was residing on the Devalaya land since long time for which he had approached the then Doloi, Shri Sashi Kanta Sarma to lease out a portion of land under his possession. Accordingly, the then Doloi, for and on behalf of the Devalaya, leased out a portion of the land by a registered deed dated 9.3.1961. The area of the leased land was 16 Lechas out of 1 Katha of land covered by L.K. Patta No. 1 in Dag No. 3862 (later on Dag Nos. 933 and 935) when the remaining 4 Lechas of land was kept for the path. Predecessor-in-interest of the appellants deposited a sum of Rs. 1,100 on 7.3.1961 as consideration for the aforesaid lease and the Devalaya authority issued the receipt to that effect. After such lease, the predecessor-in-interest of the appellants constructed the houses and the structures over the leased out land with the knowledge and consent of the Devalaya authority which was assessed by the Guwahati Municipal Corporation and accordingly Municipal Holding number being 16 A under the Ward No. 2 was allotted. Thereafter, the appellants have been paying taxes regularly to the Corporation. The said land was recorded in the name of Late Promoda Kanta Sarma, as reflected from the certified copy of the Jamabandi pertaining to the said land. The entire area including the leased out land covered by LK Patta No. 1 were acquired under the Act by the State Government by two notifications dated 1.3.1967 and 29.3.1972.
6. The respondent No. 3, being Bardeauri of the Devalaya and resident of village Digholi in the Nalbari District, during his last visit to the Devalaya in Apr 11993 saw that the land on either side of the entrance path of the mandir had been occupied by constructing temporary thatched structures and houses. On enquiry he learnt that the appellant’s father had made those constructions as he had obtained settlement of the land from the Additional Deputy Commissioner (for short, ‘ADC’), Kamrup, Guwahati. Having obtained a certified copy of the Jamabandi, Respondent No. 3 had come to know that the said ADC vide order dated 15.3.1990 directed the settlement of the land in favour of Late P.K. Sarma, the father of the appellants. Against such order of settlement of the land, the respondent No. 3 preferred an appeal being No. R.A.55(K)/93 before the Assam Board of Revenue. On the other hand, some other Bordeauries represented by their Doloi, Shri Suresh Ch. Bhattacharjee, who were also against the interest of the appellants predecessor, also preferred an appeal before the Board of Revenue, Assam against the order of settlement in favour of the late father of the appellants which was registered as R.A. 138(K)/93.
7. After hearing both the appeals analogously, vide order dated 10.6.1997, the learned Member allowed both the appeals by setting aside the order of settlement passed by the ADC in favour of the predecessor-in-interest of the appellants.
8. Feeling aggrieved, the appellants have challenged the judgment and order dated 10.6.1997 in the present writ proceeding being C.R. Case No. 3228/97. The learned Single Judge, after going through the detailed discussion of the relevant provisions of law particularly Sections 5 and 15 of the Act as well as the scheme formulated on the basis of a decree passed on 3.3.1936 in the suit being Civil Suit No. 12/30 instituted in the Court of the then Special Sub-Judge, Assam Valley District at Guwahati by some Bordeauries of the Devalaya, seeking a scheme to be formulated by the Court itself for better management of the Devalaya, especially Clauses; 12 and 14 thereof which provide that the Doloi shall not settle any land at a rent less than Govt. revenue for similar kind of Kheraj lands nor grant any Mourashi or long term lease exceeding 30 years without sanction of the Managing Committee and no new settlement of Guwahati town land was to be made by Doloi without approval of the Managing Committee and upon hearing the learned Counsel for the parties, dismissed the writ petition in complete agreement with the findings recorded by the Tribunal.
9. For the sake of convenience, the relevant provisions of Sections 5 and 15 of the Act along with Clauses 12 and 14 of the scheme may be quoted as under:
…Section 5. Power to retain possession of land after acquisition. Notwithstanding anything contained in Sub-Section (i) of Section 3 and Sub-Section (1) of Section 4 a religious or charitable institution (including its individual branches, if any) shall with effect from the date of vesting be entitled to retain possession of-
(i) free of revenue, all such land which on or before the last day of Chaitra 1365 B.S. were in the ownership of the institution and were actually occupied by it by constructing buildings and reising orchards and flower gardens together with the compound apartment thereto and all lands reserved for the resident devotees for residential purposes.
Provided that the right of ownership or possession of such lands shall not be transferable or alienable.
(ii) tea garden lands
Provided that such lands shall be liable for assessment to full revenue rate under any existing law.
Section 15. Settlement of acquired land with persons in occupation. Subject to the limitation prescribed under Section 4 of the Assam Fixation of Ceiling on Land Holdings Act, 1956 (Assam Act 1 of 1957) where the land acquired under this Act is in occupation of a raiyat on the date of notification under Section 3, it shall be settled with him with the following status:
(a) if he has acquired the status of a privileged raiyat under the Assam (temporarily Settled Districts) Tenancy Act, 1935 (Assam Act III of 1935), then the land in his holding as privileged raiyat shall be settled with him with the status of a land holder as defined in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886) and he shall, upon such settlement be absolved from the obligation, if any, of rendering services or making payment of “bhog” to the institution concerned in respect of his holding:
Provided however that notwithstanding anything contained in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886) his right of transfer of such holding shall extend only to persons belong to the same religion as the institution in which the ownership of the land was vested before the date of notification under Section 3 of this Act
(b) if he has acquired the right of occupancy under any law for the time being in force the land shall be settled with him with the status of a land-holder as defined in the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886), or of an occupancy raiyat as defined in the Goalpara Tenancy Act, 1929 (Assam Act 1 of 1929), or the Shlhet Tenancy Act, 1936 (Assam Act XI of 1936), as the case may be;
(c) if he has acquired the status of an occupancy tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 then the land in his holding shall be settled with him with the status of a land holder as defined in the Assam Land and Revenue Regulation, 1886 and he shall, upon such settlement be absolved from the obligation, if any, of rendering services or making payment of “bhog” to the institution concerned in respect of his holding and if he has not acquired the status of an occupancy tenant, then the land shall be settled with him with the status of a settlement holder (other than the land holder) as defined in the Assam Land and Revenue Regulation, 1886:
Provided, however, that notwithstanding anything contained in the Assam Land and Revenue Regulation, 1886 the right of transfer of such holding shall extend only to persons belonging to the same religion as the institution in which the ownership of the land was vested before the date of notification under Section 3 of the Act.
Clauses : 12 and 14 of the scheme:
…12. The Doloi shall not settle any land at a rent less than the Government revenue for similar kind of Kheraj lands, nor grant any Mourashi or long term lease exceeding 30 years without the sanction of the Managing Committee. He shall not also reduce existing rates of rent for any lands without sanction.
14(a) No new settlement of Gauhati Town land is to be made by Doloi without the approval of the Managing committee. (b) Where a lease for , residential plot in Gauhati expires, and there is a condition for renewal, the Doloi will be entitled to renew the lease and resettle the land for a further term not exceeding the one which expires, on the terms and conditions laid down in the old lease, unless the Managing Committee, for reasons recorded, recommend modifications in the interest of the Temple, without derogation to rights otherwise acquired under general or local law.
10. From a close perusal of the above provisions of the Act and as well as the scheme, it appears that no Doloi has the power to settle any land of the Devalaya without sanction of the Managing Committee. Under Section 15, Government is empowered to settle the acquired land under the Act with those specified persons who were in occupation of the land with the status of the raiyat under the Act of 1935 or occupancy tenant under the Act of 1971, etc. when Section 5 provides power to the Devalaya to retain possession of the land after acquisition.
11. Be it noted that the Act of 1935 was repealed by the enactment of the Act of 1971. Both the Acts aforesaid are applicable to agricultural lands only; meaning thereby the Acts have no applicability to a town land. Section 2 of the Act of 1935 prescribes a local extend to which the same shall not have any applicability. Section 2 Clauses 1(e) and (f) of the Act of 1935 provide as under:
(e) Land included in civil station.
(f) Land other than agricultural land situated within any out side of civil station.
Though civil station has not been defined in the Act of 1935, it can be unhesitatingly held that the land within Sahar Guwahati and that too, at Uzan Bazar area within Greater Guwahati can not be said to be a land not included in the civil station which admittedly non-agricultural land and town land. Therefore, the Government has no authority to settle the same with any person who does not belong to the class or category specifically mentioned Section 15 of the Act. There is no document or records to show that the appellants or their predecessor-in-interest are/was ever raiyat or occupancy tenant. Even the lease deed executed on 9.3.1961 maintained absolute silence as regards the status of the predecessor-in-interest of the appellants. That apart, since the scheme prohibits any settlement with any person without the approval of the Managing Committee, the lease deed executed on 9.3.1961 cannot be said to be a valid one on the sole count that admittedly the same was not approved by the Managing Committee.
12. In view what has been discussed, observed and indicated herein above, we are of the firm opinion that there is no infirmity or error committed by the learned Single Judge in dismissing the writ petition warranting any interference by this Court.
13. In the result, the appeal fails and stands dismissed. However, there shall be no order as to costs.