JUDGMENT
1. This petition under Article 226 of the Constitution of India has been filed for issue of an appropriate writ for quashing and setting aside the Government Memo No. RD/41/72/70-A dated 28.9.1976 and the order dated 20.7.1998 passed by the Respondent No. 3 and for further directions to the respondents to issue orders for renewal of the lease as communicated by them vide their letter dated 2nd June, 1976 without altering, modifying or alienating the boundaries of the aforesaid plot in any manner.
2. While issuing Rule, this court by order dated 14.9.1998 directed the parties to maintain status quo in respect of the disputed land. This order still holds the field since no objection was raised on behalf of the respondents.
3. For convenience, I would like to clear the facts first which eventually culminated in this writ petition.
4. This petition has been filed by the Holy Mother of Aurobindo Ashram of Pondicherry represented by Shri Aurobindo Institute of Indian Culture, Shillong. The plot of lease-hold in dispute is known as ‘Morven Estate’ situated behind the Raj Bhawan at Shillong and appertains to Revenue Plot Nos. 5 and 5A. The plot No. 5 was originally leased out to one Mr. H.M. Hadow for a period of 99 years with effect from 1.9.1865 by a lease agreement executed on 8.3.1875. There has been change of owners during the course of time and ultimately Mr. S.N. Maitra became the exclusive owner thereof in the year 1949. Mr. Maitra was a Philanthropist from Calcutta. He gifted away the entire property to the Holy Mother of Sri Aurobindo Ashram, Pondicherry on 20.4.1955 by a Deed of Gift. Next year, the land was mutated in the name of the writ petitioner vide orders passed in Mutation Case No. 3/55-56 of 1955. Since the execution of the Deed of Gift, the writ petitioner have been in peaceful and uninterrupted possession of the same without any hindrance from any quarter. The original Deed of Lease and
the mutation records would show that the Plot No. 5 is bounded in the North, East and South by drains and in the West by Government Road. During the survey of European Ward, Shillong in 1963-64, this plot of land was recorded as Plot No. 24 reflecting the above boundaries. On expiry of the period of lease, an application was submitted along with the original patta before the Deputy Commissioner of erstwhile United Khasi and Jantia Hills District, Shillong on 3.8.1967 for renewal of the lease. The Government of Meghalaya vide letter dated 2.1.1976 conveyed their decision to renew the lease for 75 years from the date of expiry. But till today no formal orders have been passed. On the other hand, in the same year a notification was published in the paper on 28.9.1976 to the effect that the Government of Meghalaya settled a plot of land from within the area of Plot No. 5 (Morven Estate) with Young Men Christians Association and Young Women Christians Association. The petitioner came to know about this illegal settlement in the year 1995 and immediately filed representation on various dates in the year between 1995 to 1998. The land in question has always been in possession and control of the writ petitioner. After constitution of Sri Aurobindo Institute of Indian Culture, Shillong, as per Memorandum of Understanding dated 18.4.1995, the Institute took up the management of the property of the Ashram and came to know about the illegal settlement. It has been further contended that, on request by the Young Men Christians Association, a small portion of the Ashram’s land was allowed to be used by them on consideration of their objectives. Even by that time, the institute was not in the know of the illegal settlement made by the Government.
5. Affidavits have been filed on behalf of respondent Nos. 2 and 3 jointly, and 5 and 6 separately. In the affidavit of respondent Nos. 2 and 3 it has been submitted that in Plot No. 5 the land measuring 2 acres known as ‘Morven Estate’ and the land in Plot No. 5A were mutated in the name of the Holy Mother of Shri Aurobindo Ashram of Pondicherry on 20.4.1955. However, they raised dispute about the area and the peaceful possession of the same by the writ petitioner. According to them, there is no trace of original boundary as on today and that the writ petitioner is in possession of 1.49 acres in excess of the land initially settled. Further submission of the State is that it is the area i.e. 2 acres mentioned in the lease deed which would prevail. It is, however, admitted that a decision was taken to extend the lease for another period of 75 years from the date of expiry of the original lease. The Government’s right to dispose of the waste land or excess land by severance and by way
of lease, grant or otherwise to any other applicant has been asserted. Hence, the allotment of the waste land to Young Women Christians Association and Young Men Christians Association in 1976 has been stated to be in due exercise of the powers of the State Government under the provisions of the Assam Land and Revenue Regulation, 1886 as adopted by the State of Meghalaya.
6. The private respondent Nos. 5 and 6 in their affidavit denied the title of the writ petitioner over the land and submitted that a Women-Hostel was already constructed over the land to the knowledge and with permission of the writ petitioner after the settlement made by the Government. They disputed the identity as well as the area of the land and submitted that constructions have been undertaken by them in 1977 in pursuance of the allotment made by the State Government.
7. Mr. V.K. Jindal, learned counsel for the writ petitioner, during the course of argument, raised objections on various counts. According to him, the ‘Morven Estate’ or the ‘Morven Property’ has been in possession of Mr. Hadow since 1865 and, thereafter, by the subsequent owners including the writ petitioner without any interruption from any quarter within the boundary as shown in the Lease Deed and the Map on payment of revenue to the State. Therefore, the land in excess of the 2 acres initially allocated within a definite boundary cannot be treated as a waste land and, as such, the Government of Meghalaya have no right to allot or grant or otherwise settle the land with any other person or authority. The decision of the Government to renew the lease for 75 years vindicate the right of the writ petitioner. The notice published in 1976 in the local paper is without any authority of law and the decision of allotment of excess land with the private respondents have been taken without notice to the writ petitioner. The order dated 20.7.1998 (Annexure-7) passed by the Commissioner is also controverted as being without jurisdiction.
8. Mr. Jindal, learned counsel elaborating the above points submitted that the writ petitioner considering that YWCA is a social organisation allowed it to use a small portion of the Ashram’s land and the possession of YWCA over that part of the land where a hostel promises have been constructed is not sought to be disturbed by the writ petitioner, considering the objectives and purpose for which the YWCA has been established. Mr. H.S. Thaykhiew, the learned counsel for the private respondents and Mr. B.P. Marngar, Learned State Counsel argued at length to justify the impugned
action. The relevant office file has also been produced by the Learned State Counsel for examination whether the allotment made in favour of the private respondents is in compliance with the procedure of law or not.
9. Before the contentions raised are taken up for consideration, it would be of convenience to recapitulate here that there is no dispute with regard to the settlement of Morven Estate i.e Plot No. 5 with Mr. Hadow with effect from 1865 and that it was in his possession since then followed by the possession of successors-in-interest. It is also evident from the statement in para-6 of the affidavit filed by the respondent No. 2. From Annexure-B of this affidavit we further find that the writ petitioner once offered to handover the property to the State Government if the Government agree to pay compensation. Annexure-A to the affidavit also shows that the State Government made an attempt in 1994 to purchase the lease-hold from the writ petitioner. This is indeed contrary to the impugned notification of 1976. Rather, it gives an impression that the said notification of 1976 was not acted upon and that the land in question was for all practical purposes in possession of the writ petitioner and, in any case, not with the Government as a waste land. The controversy, therefore, centres around the possession of excess land measuring 1.49 acres found in Plot No. 5 within the given boundary of the lease deed which the State of Meghalaya intended to settle and, in fact, settled with the private respondents by the impugned notification and orders.
10. It is already stated above that there is no dispute with regard to 2 acres of land in Plot No. 5. The decision of the Government of Meghalaya to renew the same for a period of 75 years also vindicate this. The excess land measuring 1.49 acres found therein had been in possession of Mr. Hadow and, thereafter, his successors-in-interest for about last 120 years. The difference in the area within the given boundary of the lease deed may be due to faulty measurement. Such fault in the measurement of land in hilly tracks cannot be ruled out. The Government has no where pleaded that the writ petitioner or his predecessors-in-interest encroached upon the Government’s land surreptitiously practising fraud or in collusion with any person.
11. Copies of the Lease Deeds of Plot Nos. 5 and 5A are available at the Government’s file at Pages 99 and 98 respectively. The recitals in the Lease Deeds clearly indicate that it were the plots which were intended to be settled. The relevant excerpts from the Lease
Deed dated 8th March. 1875 of Plot No. 5 is quoted below:-
“Whereas you have tendered a counterpart of this Pottah stating that you have agreed to have settled upon you in lease for 99 years commencing with first September eighteen hundred sixty five and ending with thirty, first August Nineteen hundred and sixty four all that Plot No. 5 of building site comprising two (2) acres of first class lands situated and being at Shillong in the District of Coassyah and Jynteeaoh Hills, and bounded:
North : Drainage South : East : West : Government Road.".
12. It would appear that the intention of the Government was to settle Plot No. 5 comprising 2 acres and not 2 acres in Plot No. 5. The reference to the measurement might have been due to mistake as indicated hereinbefore. Since the intention is clearly deducible from the recital of the lease deed, such intention would be determinative of the dispute with regard to area. Hence, it can be concluded that it was the Plot No. 5 in its entirety within the given boundary was intended to be settled and, in fact, was settled with the predecessors-in-interest of the writ petitioner. This conclusion in further reinforced when we find that no proceedings was over drawn against the writ petitioner for causing injury to the permanent boundary marks. Therefore, the mention of the area as 2 acres in the lease deed would have no significance. This approach gains support from various judgments of the Apex Court as well as other courts. In AIR (35) 1948 Privy Council 207, at Para-7, the principles in this regard has been enunciated. It has been held by the Privy Council that in construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as ‘false demonstration’. In Sheodhyan Singh and others v. Mst. Sanichara Kuer. AIR 1953 SC 1879, the Supreme Court held as follows:-
“7. We are of opinion that the present case is analogous to a case of misdescription. As already point out the area, the Khata number and the boundaries all refer to plot No. 1060 and what has been happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160 in Khata No. 97, in these circumstances we are of opinion that the High Court was right in
holding that this is a case of misdescription only and that the identity of the property sold is well established, namely, that it is plot No. 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the scale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in thiscase, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellant therefore with respect to this plot must fail.”.
13. In K.S. Nanji and Co. v. Jatasankar Dossa and others, AIR 1961 SC 1474, in para-9. the Supreme Court held as follows:
“9.. It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the said document. In this case the maps accepted by us are drawn to scale and the boundary is clearly demarcated. The courts were, therefore, certainly right in accepting the boundaries drawn in the plan without embarking upon an attempt to correct them with reference to revenue records. The question really is one of fact and we accept the finding.”.
14. The ratio laid down in AIR (35) 1948 Privy Council 207 (supra) has been relied upon by the Calcutta High Court in M/s Roy & Co. and another v. Sm. Nani Bala Dey and others, AIR 1979 Calcutta 50. It would be pertinent here to reproduce the ratio of the case hereinbelow:-
“6. Reference may be made to the cases of Gossain Das in (1913) 18 Cal LJ 541. 59 Cal LJ 532 at p.534 : (AIR 1934 Cal 851 at p.852) and 52 Cal WM 719 at p.722: (AIR 1948 PC 207 at p.209) to show that in case of conflict between the area and the boundary, the description of the boundary will prevail. It will be pertinent to point out that the Bench decision of our Court in (1909) 10 Cal LJ 570 was set aside by the Judicial Committee in the case in (1913) 40 Ind App 223 (PC) on a different point and not on the question of conflict between the area and the boundary. So this branch of the appellant’s arguments is not accepted,”.
15. In Subramonian Namboripad v. Oheeran Variayathu and others, AIR (37) 1950 T-C 19, the Court held as follows:-
“The decree-holder is the appellant. The appellant Judge in this case allowed the plaintiff a decree against plaint schedule item 3 with the observations that S.No. 504 given for the same might be incorrect. It was this observation that created the trouble in
execution, in cases of doubt, as to the identity of properties involved the boundaries are to be relied upon. The decree-holder is entitled to proceed against the property within the boundaries given for item 3. The execution Court will however allow the decree-holder to take steps to find out the correct S. No. of the property within the boundaries given for item 3. By this it is not to be taken that we hold that the correct survey number is or is not 504. The order of the lower appellate Court is modified as above.”.
16. The law as discussed above clearly lay down that in a dispute with regard to area, the boundary of the land or the plot number of the instrument/document would be determinative of the issue. The State have no where alleged encroachment of any land by the writ petitioner or their predecessors-in-interest at any point of time. The possession of the excess land has not been disputed. The intention which is apparent from the recital of the lease also was to settle all that in Plot No. 5 and not 2 acres in Plot No. 5. The name of the writ petitioner have also been recorded in the Records of Rights as per orders passed in Mutation Case No. 3/55-56 of 1955. The excess land being a part of the lease-hold could not have been dealt with in the manner as has been done in the instant case beyond the provisions of the Regulation, 1886.
17. At this stage it is felt necessary to mention here that the Assam Land and Revenue Regulation, 1886, for short the Regulation, was adapted by the State of Meghalaya. For this purpose, the Meghalaya Adaption and Application Laws Act, 1971 was enacted and it came into force on the 2nd day of April, 1970. Therefore, it is the provisions of the Regulation which would be relevant for the purpose of resolution of the dispute at hand. Since the writ petitioner is a settlement holder, any action in connection with this land has to be in conformity with the provisions of the Regulations. In my considered opinion, the provisions of the Regulations relating to resumption will be application in the instant case.
18. The law relating to resumption of land held wholly or partially free of assessment are available at Sections 43 to 46 of the Regulations. They reads as follows:-
“43. Whenever a Deputy Commissioner has reason to believe that any land within the jurisdiction is being held wholly or partially free of assessment and is liable to be assessed under section 28, . he may institute an inquiry, and the person claiming the land shall be bound to prove his title to hold the same wholly or partially free of assessment, as the case may be.
44. The result of every inquiry instituted by the Deputy Commissioner under section 43 shall be reported to the (State) Government for orders in the prescribed manner.
45. (1) In any case reported to the State Government under section 44, if the State Government declare the land not liable to assessment, their order shall be final except on proof of fraud or collusion on the part of or on behalf of the person interested.
(2) If the Stale Government declare the land liable to assessment, the Deputy Commissioner shall inform the person interested of the (State) Government’s decision, and shall proceed to assess the land in accordance with the rules made under section 29 and to settle it with the person in possession.
46. Any person whose land are assessed by order of the (State) Government passed under section 45 may at any item within one year from the date of his being informed of the (State) Government’s order institute a suit in the Civil Court to have the order set aside failing which the order shall be final.”.
19. The provisions quoted above shows that where any land is held wholly or partially free of assessment and liable to be assessed under Section 28, the Deputy Commissioner may institute an inquiry subject to proof by the possessor about his title to hold the same wholly or partially free of assessment. After completion of the inquiry under Section 43, the matter shall be referred to the State Government for orders and the decision of the State Government shall be final. If the State Government decides that the land shall be assessed to revenue, the Deputy Commissioner shall assess the same and settle it with the person in possession. Section 46 provides for institution of suit in civil court by the person whose land are assessed as per provisions of Section 45. In the instant case, as discussed hereinabove, the excess land being part of the settlement and having been in possession of the original settlement holder or his successors-in-interest partially free of assessment, the respondent State ought to have proceeded in accordance with the provisions of Sections 43, 44 and 45 of the Regulation. As provided in Section 45(2), the respondent State was not entitled under law to settle the excess land to any person or authority other than the writ petitioner. The law as quoted above clearly show that the offer of settlement has to be made to the person in possession at the first instance and, only on refusal, the State would be entitled to settle the same with any other person. Had it been a case of subsequent occupation of excess land or trespass, the question would have been altogether different and,
perhaps, the State could have taken recourse to the provisions of Rule 18 framed under Section 29 for ejectment of the writ petitioner. Obviously, the decision of the State Government impugned in the writ petition have been taken in violation of the provisions of law. It has been contended in para 8 of the affidavit by respondent No. 2 that as per provisions of Section 122, the Government is the Chief Controlling Authority and, as such, the order of the Commissioner is within jurisdiction. But the settled principle of law is that the ‘authority’ of the State cannot be exercised arbitrarily in derogation of the substantive provisions of the Regulations. Hence, the impugned Memo No. RD/41 /72-70-A dated 28.9.1976 and the order dated 20.7.1998 are liable to be set aside.
20. The writ petitioner and their predecessors-in-interest are in possession of the excess land in continuity since 1865. They have also otherwise acquired title over the disputed land because of the long, continuous and undisturbed possession. Section 46 also enables the person in possession to approach civil court to vindicate his rights. But in the instant case, because of the admission of the lease given, and the factum of possession of the lease-hold by the writ petitioner, the issues raised in this petition can be well-answered in exercise of the powers of this Court under Article 226 of the Constitution.
21. In the result, the writ petition is allowed. The impugned orders referred to above are hereby set aside. The State is directed to issue formal orders of renewal as per decision taken by them as communicated vide letter dated 2nd June, 1976. Alternately, the State may take recourse to the provisions of Sections 43, 44 and 45 of the Regulations as indicated herein before and offer the settlement at the first instance to the writ petitioner.
22. Before parting with the record, it is made clear that the possession of the private respondents over a position of the land shall not be disturbed in view of the specific averment made in the writ petition.
