TaxTMI 
TaxTMI 
2014 (12) TMI 1443
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.... dated 23.02.1998 passed by the Board at Guwahati impugned in the writ petition and also set aside the order dated 26.02.2001 passed by the learned Single Judge in W.P. No. 2234 of 2000. 4. The question arises for consideration in these appeals is whether the High Court was justified in allowing the writ appeal and the writ petition filed by the State thereby was justified in setting aside the order of the Board impugned in the writ petition? 5. In order to appreciate the issue involved in these appeals, it is necessary to state the facts in detail infra. 6. The dispute relates to the agricultural land measuring 59 Bighas 1 Katha 14 Leacha covered by Dag Nos. 435, 437, 376, 433, 434, 438, 439, 358, 361, 1348, 343 and 836 bearing patta Nos. 284 (new)/269(old) situated at Village Betkuchi in Mouza Beltola in the District of Kamrup. The appellants were the co-land holders of this land which is an "estate" as defined under Section 3(b) of the Assam Land And Revenue Regulation, 1886 (hereinafter referred to as "The Regulation"). Their names were also duly entered in the revenue records as "recorded land holders" as defined in Section 3(i) of the Regulation, all t....
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....nbsp;1/- as per Rule 141 was illegal and liable to be set aside, entitling the appellants to seek restoration of land. 9. The Board, by order dated 23.02.1998, allowed the appeal filed by the appellants and held that no notice of either recovery of arrears of land revenue or/and auction proceedings was served on the appellants much less served as per the procedure prescribed in the Regulation, that attachment and sale of the so called moveable of the appellants and also of the land in question was not done as per the procedure prescribed in the Regulation, that a valuable land whose market value was around 50 lacs approximately should not have been put to sale for realization of Rs. 731.70 as it caused extreme hardship to the appellants and lastly, no sincere attempt was made to sell either moveable properties of the appellants as provided in Section 69 for realization of dues prior to the auction or to sell the land in question as provided in the Regulation. The Board, after recording these findings, set aside the auction and the sale proceedings and directed the State to restore the land to the appellants on their paying outstanding land revenue and other dues, if any, as....
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....e and allowed the appeal and remanded the case to the Division Bench for its decision on merits in the appeal. 14. Challenging the order dated 23.02.1998 passed by the Board which had allowed the appeal filed by the appellants, the State filed petition being W.P. No. 5628/2004 before the High Court. The Division Bench clubbed writ appeal of the State (WA No. 512/2002), which was remanded by this Court to the High Court for its disposal on merits with Writ Petition No 5628 of 2004 filed by the State because both the cases had arisen out of the same order of the Board and pertained to the same land. 15. By impugned order, the Division Bench allowed the writ appeal and the writ petition. The High Court held that notice of demand and sale of land were served on the appellants as per the procedure prescribed in the Regulation and that the auction held by the Revenue Authorities was legal and was held in conformity with the procedure laid down in the Regulation. It was also held that no direction could be issued by the Board to pay compensation to the appellants for the land which was rightly purchased by the State for Rs. 1/- in the auction sale as per Rule 141. The....
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.... Section 69 for recovery of arrears by sale of moveable was followed in the first instance and on failure to recover by such mode, the steps should have been taken to auction or/and re-auction the land to enable the bidders to participate in the auction proceedings which again was not done and lastly, the appellants in the event of their success in these appeals would be satisfied, if they are allowed to withdraw the compensation amount deposited by the IOC for 40 Bighas of land and are further allowed to retain the remaining land. 17. In contra, learned counsel for the State supported the impugned judgment and contended that it should be upheld as it does not call for any interference. 18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by the learned counsel for the appellants. 19. Before we consider the factual issues arising in this case, it is apposite to take note of the relevant Sections/Rules of the Regulation, which have a bearing over the controversy. 20. The Regulation consists of two parts. Part I consists of Sections whereas Part II consists of the Rules. The provisions of the....
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....and sale shall be conducted according to the law for the time being in force for the attachment and sale of moveable property under a decree of a Civil Court, subject to such modifications thereof as may be prescribed by rules framed by the State Government for proceedings under the Assam Land and Revenue Regulation. (3) Nothing in this section shall authorise the attachment and sale of necessary wearing apparel, implement of husbandry, tools of artisans, materials of houses and other buildings belonging to and occupied by agriculturists, or of such cattle or seed-grain as may be necessary to enable the defaulter to earn his livelihood as an agriculturist. 70. When estate may be sold - When an arrear has accrued in respect of a permanently-settled estate or of an estate in which the settlement-holder has a permanent, heritable and transferable right of use and occupancy, the Deputy Commissioner may sell the estate by auction: Provided that - (1) Except when the State Government by general order applicable to any local area or any class of cases, or by special order, otherwise direct, an estate which is not permanently-settled shall not be sold un....
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....l of, the following officers:- (a) By the Deputy Commissioner with respect to all estates situated within the Sadar Subdivision of a district and not included within the limits of any tahsil or mauza. (b) By the Subdivisional Officer with respect to all estates situated within the limits of a mufassil sub-division, and not included within the limits of any tahsil or mauza. (c) Tahsildar with respect to all estates situated within the limits of this Tahsil, or by the Sub-Deputy Collector or other officer invested with the power under section 68 of the Regulation. 134.A notice of demand under rule 132 shall be served by delivering to the person to whom it is directed a copy thereof attested by the Revenue Officer who issues it, or by delivering such copy at the usual place of abode of such person to some adult male member of his family or, in case it cannot be so served, by pasting such copy upon some conspicuous part of the usual or last known place of abode of such person. In case such notice cannot be served in any of the ways hereinbefore mentioned it shall be served in such way as the officer issuing the notice may direct. 135. Sale p....
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....mauzadar is of opinion that the process provided for in these rules is not sufficient for the recovery of the arrear, he may, if the arrear has accrued in respect of an estate in which the settlement-holder has a permanent heritable and transferable right of use and occupancy, apply to the Deputy Commissioner to order the attachment under section 69A, or the sale of the estate itself, subject to the provisions of section 74 of the Land and Revenue Regulation: Provided the arrear has accrued not earlier than in the two revenue years referred to in the provisions to rules 152 and 156 and, where action under section 69 of the Assam Land and Revenue Regulation is taken by or at the instance of the mauzadar, the application is made within three months of the termination of the proceedings under section 69." 21. After setting out the relevant provisions of the Regulation, which essentially deals with the sale of land, it is now apposite to first reproduce the relevant finding of the Board which held the auction sale of estate/land as being illegal and not in conformity with the procedure prescribed in the Regulation. "The case record shows that prior to the sale of t....
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....ment and sale of movables as well as sale of the estate and when all these fail or are held to be in effective then only the provision for annulment can be resorted to. Again after annulment not only that the record correction is to be made but also steps should have been taken under Rule 150 of the Rules under the Regulation after issuing notice to the pattadars to hand over possession. This was also apparently not done. In the parawise comments submitted by the learned Addl. Deputy Commissioner, Kamrup nothing in detail has been stated in support of the sale and the annulment of settlement. In view of the above discussions, the impugned order of sale and annulment of settlement, can not be allowed to sustain. Accordingly, the impugned order of sale dt. 28.6.77 is set aside and the endorsement making correction of the land records as made on 29.6.78 is struck down. The patta shall be restored to the Appellants pattadars and the land be restored on payment of the arrears revenue and other dues as usual as per law. It also appears from the records that after the order of sale and annulment of settlement by the Deputy Commissioner, Kamrup, land measuring 40 Bighas, out of th....
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....estate will be sold. The aforesaid list/statement could not be served on the defaulter in spite of 3-4 attempts. The mother and other relatives of the defaulters refused to accept the same and thereafter, a notice was pasted on the wall of the house of the defaulters in presence of neighbours as witnesses and the copy of the notice was also published in the office of the sub-Deputy Collector, Mouzadar and Gaonburah. Thereafter, it would appear from the order-sheet of the proceedings of sale that the sale was conducted on 21.6.1977, 22.6.1977, 23.6.1977, 24.6.1977, 25.6.1977, 26.6.1977 and 28.6.1977, a bid of one rupee was offered on behalf of the State Government, which was accepted by the officer conducting the sale. The amount of one rupee was deposited by a Treasury Challan dated 17th/18th August, 1977....." 23. Having examined the entire controversy in the light of relevant Sections and the Rules, we are unable to persuade ourselves to concur with the finding of the High Court as, in our considered opinion, the High Court should not have interfered with the finding of the Board which rightly held that auction conducted to recover the outstanding arrears of land revenue (Rs.7....
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....hat was their age, their relation with the appellants, whether they were living in the same house in which the appellants were residing. Whether notice was served in presence of any witness residing in area and who were those witnesses and why these details were not mentioned in the service report. In any case, in the absence of this material evidence, it was rightly held by the Board that no notice of either demand or/and sale of land was served on the appellants and the High Court ought not to have interfered with this finding of fact for holding otherwise. 26. In our considered opinion, there lies a distinction between non-service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action ....
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.... empowers the Deputy Commissioner to recover the arrears of land revenue payable by any landholder by directing attachment and sale of so much of his moveable property as may be necessary to satisfy the dues. 32. We, however, find from the record that no attempt was made by the Deputy Commissioner to attach the appellants' any moveable property for realization of dues and even if he claimed to have made any such attempt yet there is nothing on record to show as to why he was compelled to take recourse to Section 70 for sale of land in question. Indeed such action on the part of Deputy Commissioner was in contravention of Section 70 (1) because no auction of estate (land) could be made unless he was of the opinion that process provided in Section 69 was not sufficient for the recovery of entire arrears. In other words, it was necessary for the State to have justified their action by showing that sincere attempt was made to first sell the appellants' moveable as per the procedure prescribed in Section 69 and when it was noticed that it was not possible to recover the arrears by sale of all attached moveables, the extreme step of recovery of arrears by sale of estate was taken by t....