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Md. Rustom Ali Vs. the State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Property
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 366 of 1980
Judge
ActsAssam Land and Revenue Regulation, 1886 - Sections 67
AppellantMd. Rustom Ali
RespondentThe State of Assam and ors.
Appellant AdvocateD.K. Bhattacharyya and B.P. Bora, Advs.
Respondent AdvocateA.M. Mazumdar, S. Ali and S. Huda, Advs.
DispositionPetition allowed
Prior history
K. Lahiri, J.
1. The State has unsettled the settlement of Jaluguti Bazar. The Executive Committee. Morigaon Mahkuma Parishad had settled it with the petitioner for the year 1980-81 (1-7-80 to 30-6-81). By the impugned order D/- 4-10-80 the State awarded the settlement in favour of Respondent No. 4. The petitioner had by that time managed the bazar almost continuously, on due execution of the lease deed and upon payment of Rs. 42,000/- and odd. By virtue of the impugned order Respondent No.
Excerpt:
.....even in civil proceedings. ordinarily a person asking for settlement is better known to the elected representatives than those wielding supervisory powers sitting in the capital far away from the villages. 4. the second ground on which the petitioner has been unsettled is that he had failed to pay land revenue in accordance with legal requirements or obligation and hence he was a 'defaulter. the contention could have been accepted if the language of clause 18 would have been like :no tender shall be accepted from a tenderer if he is a defaulter of government revenue' or words to that effect......12 (ka) of the tender notice, and. (2) the petitioner was a defaulter as he had omitted to day land revenue on the date of submission of his tender. however, the indubitable position is that the petitioner was not a defaulter on 11-6-80 the date on which the tenders were considered. it is also an undisputed fact that the offer of the petitioner was accepted by the executive committee having had the full knowledge that the petitioner had deposited his land revenue on 11-6-80. settlements are made by the elected representatives of the villages namely, mahakuma parishad or gaon panchayats. the settlements are made with the local villagers. they derive mutual benefits arising out of the settlements. ordinarily a person asking for settlement is better known to the elected representatives.....
Judgment:

K. Lahiri, J.

1. The State has unsettled the settlement of Jaluguti Bazar. The Executive Committee. Morigaon Mahkuma Parishad had settled it with the petitioner for the year 1980-81 (1-7-80 to 30-6-81). By the impugned order D/- 4-10-80 the State awarded the settlement in favour of Respondent No. 4. The petitioner had by that time managed the bazar almost continuously, on due execution of the lease deed and upon payment of Rs. 42,000/- and odd. By virtue of the impugned order Respondent No. 4 could have enjoyed it for a broken period of about 7 months only and he can enjoy it for about 4 months henceforward. The order of unsettlement of the petitioner as well as direct settlement in favour of Respondent No. 4 by the State Government is a composite order which has been Questioned by the petitioner in this writ application. The battle for settlement commenced on 19-6-80 and the field of battle is covered by the Assam Panchayat Rai Act.

2. The word 'Panch1' has an ancient flavour; it has a special meaning and significance to our heritage and civilization. From the days of Panch Pandava to Panchasila, the figure (five) has had magical touch. The word is as old as Indian history and civilization. In fact, the word 'Panch' literally conveys, an assemblage of 5 village elders. They were de facto and de jure Government of the villages. The term 'Panch' or 'Panchayat' and the system of Panchayat were enlivened, renovated and reshaped by the Father of the Nation who spoke about the Panchayats as:

'The true democracy cannot be worked out by 20 men sitting at the Centre. It has to be worked from below by the people from every village. True rights come as a result of duty done. No one can snatch away such rights. The Panch is there to serve the people. In the true democracy of India the unit is the village. Even if one village wants Panchayati Raj which is called Republic in English no one can stop it' - Hariian (18-1-48 P. 518). He said :--

'Independence must begin at the bottom. Thus every village will be a Republic or Panchayat having full powers. It follows therefore that every village has to be self-sustained and capable of managing its affairs ......... It will be free and vo] untary play of mutual force.' -- (Hariian 28-7-46 p. 236). Speaking about the function of the Panchayati system Gandhiji observed:--

'It is function of the Panchayat to revive honesty and industry. It is a function of the Panchayat to teach the villagers to avoid dispute if they have to .........The greater the power of the Panchayat the better for the people.' Emphasis of Gandhijee's dream found expression in the preamble to the Constitution of India which underlines strong, healthy and invigorating Panchayati system. Spurred by the father of the nation, the State Governments including the State of Assam made several Panchayati laws and guaranteed self-Government to the Panchayats. It is also one of the Directive principles of State policy to uphold, organise village Panchayats and to endow these with powers and authorities to enable them to function as units of self-Governments --vide Article 40, Constitution. The preamble to the Assam Panchayati Raj Act. 1972 reads:

'Whereas it is expedient to amend and consolidate the laws relating to Local Self-Government in the villages of the State of Assam with a view to enable the Panchayati Raj institutions to function more effectively as units of self-Government.''

Chapter III of the Act expressly bestows self-Government to the Panchayats in the fields of sanitation and health, public works and education, sports and cultures, self-defence and many other spheres or activities. Upon grant of such large power, the Government retained some control and supervision over the Institutions with the object to make the institutions strong and healthy but not to wreck their independence or upset their day to day functioning. Control and supervision ought to be slow and minimal; nothing ought to he done to destroy the independent character of the local bodies manned by elected village representatives. Nepotism, violation of the principles of natural justice, bias injustice, undue influence, corruption, violation of the constitutional mandates and wrongs of the like nature must be disciplined and corrected with strong hands. The State and its instrumentalities are the repository of massive powers under Section 133 and 138 (2) of the Assam Panchayati Raj Act, 1972, for short 'the Act', and have undoubted power to alter, intervene and set aside the actions of the institution. Vast and expansive being the powers the exercise thereof must be slow and appropriate. It appears from a number of decisions of the State that it considers as if it were the original settling authority of the hats, bazars etc.; frequent and unnecessary interference in the functioning of the local body are plentiful. Hats, bazars, cattle pounds etc. are the sources of revenue as well as matters of great concern to the local bodies and the local villagers. It has been noticed that while admitting an appeal or revision, the State grants stay order with impunity forgetting the resultant pecuniary loss to the Institutions. This apart blanket stay orders in respect of settlements of hats and bazars without any directions as to the manner and method of their interim managements create problem to the Institutions & local villagers as well. The parties having the backing of settlement order in their favour deposit money for getting the settlement. There is no express power noticed by me conferring power of stay in the Panchayati Raj Act either under Section 133 or under Section 138 (2) of 'the Act' until records are called. It appears that the legislature which made the State as the appellate/revisional authorities, with eyes open did not bestow the power to grant stay during the pendency of an appeal or revision till the records are called. However, this is an observation in passing as the petitioner has not raised the point in this application. Be that as it may, grant of stay or injunction is an extraordinary power which affects status quo. The villagers who look forward to the bazars, their trading and commercial centres invariably suffer due to stay orders. In absence of a strong case no stay is granted even in civil proceedings. Unfortunately in the proceedings under Sections 133 and 138 of 'the Act' the State Government grants stay almost as a matter of course.

3. The impugned order has been challenged on amendment of the petition, on two grounds. It has been urged that the petitioner has been unsettled and Respondent No. 4 has been installed on the findings that, (1) the petitioner did not enclose some certificates along with his tender which violated the direction contained in Clause 12 (Ka) of the Tender Notice, and. (2) the petitioner was a defaulter as he had omitted to Day land revenue on the date of submission of his tender. However, the indubitable position is that the petitioner was not a defaulter on 11-6-80 the date on which the tenders were considered. It is also an undisputed fact that the offer of the petitioner was accepted by the Executive Committee having had the full knowledge that the petitioner had deposited his land revenue on 11-6-80. Settlements are made by the elected representatives of the villages namely, Mahakuma Parishad or Gaon Panchayats. The settlements are made with the local villagers. They derive mutual benefits arising out of the settlements. Ordinarily a person asking for settlement is better known to the elected representatives than those wielding supervisory powers sitting in the capital far away from the villages. In the instant case, the Executive Committee was fully alive that the petitioner did not pay his land revenue till 10-6-80 and paid the same on 11-6-1980. Being aware of the fact the Committee selected the petitioner as he was the highest tenderer amongst the contestants who remained in the field on the date of consideration of the tenders. The offer of the petitioner was Rs. 7101/-per month while that of Respondent No. 4 was Rs. 6731/- per month, that is, less by Rs. 370/- per month. The difference between the two, for the short term lease for one year, comes to Rs. 4.440/-. The first ground for unsettling the petitioner is that he did not append or annex the so-called 'required certificates' from the Gaon Panchayat and Mahakuma Parishad. Para 12 (Ka) of the Tender Notice does not enjoin for handing in such certificates, if the offer is less than Rs. 10,000/-. The offers of the petitioner and respondent No. 4 and as a matter of that offers of all the tenderers were less than Rs. 10,000/-. As such, there was no necessity for sub-mitting any certificate under the Tender Notice. It follows, therefore, that the State committed grave error apparent on the face of the records that the petitioner's tender was invalid for non-submission of the certificates.

4. The second ground on which the petitioner has been unsettled is that he had failed to pay land revenue in accordance with legal requirements or obligation and hence he was a 'defaulter.' I have checked up the entire records but do not find any material on the basis whereof the appellate authority was justified in concluding that the petitioner was a 'defaulter.' The conclusion that the petitioner was 'a defaulter' was, therefore, derived from oral arguments and memorandum of appeal. When a party desires to establish that the other party is disentitled to settlement, the burden is entirely on him to establish the same. There cannot be any dispute that the burden was positively upon respondent No. 4 to establish that the petitioner was 'a defaulter' contemplated under any law for the time being in force. The impugned order does not indicate as to why the petitioner was treated as defaulter. There is nothing to show what legal re-quirement or obligation had been violated by the petitioner for which ho was so stigmatized. There is no backing of reasons or logic to bear up the conclusion. The factum of non-payment of land revenue by the petitioner on 11-6-80 was known to the Executive Committee. Mahkuma Parishad, which was the primary authority to recommend for settlement of the bazar. It was alive that the petitioner did not pay land revenue until 11-6-80. It settled the bazar on him as he had paid up all his arrear land revenue on 11-6-80. As such, on the date of consideration of the tenders the petitioner was never a defaulter. The provision of Clause 18 of the Tender Notice is a disabling provision which should be construed strictly. Clause 18 states that a tender shall be rejected if it is found that the tenderer is a defaulter of Government revenue etc. Rejection of a tender comes up only when tenders are considered for acceptance. As such, if a tenderer is not a defaulter on the date of selection and/or consideration of the tenders the said clause does not come into play. As such, the Executive Committee was justified in not rejecting the tender of the petitioner as he was not a defaulter on the date of consideration of the tenders. It has been contended that the interpretation of Clause 18 should be the other way round. According to the counsel for the respondents the clause conveys that a defaulter is debarred to file any tender. The contention could have been accepted if the language of Clause 18 would have been like : 'No tender shall be accepted from a tenderer if he is a defaulter of Government revenue' or words to that effect. However, it is not so. Therefore, the only bar is that he should not be a defaulter on the date of consideration of his tender. Assuming that there may be two possible views, in view of the penal character of the clause it must receive a construction in favour of the tenderer. The Executive Committee had jurisdiction t6 determine whether the tenderer was a defaulter or not. It decided that the petitioner was not a defaulter on 11-6-80 and granted the settlement in his favour. The object of selection is self-evident, namely, to derive financial gain of Rs. 4,440/-. As such, interference by the State was uncalled for illegal and based on wrong interpretation of Clause 18 of the Tender Notice. That apart, there is nothing to show that the petitioner was a defaulter under Sections 66 and 67 of the Assam Land and Revenue Regulation. Section 66 of 'the Regulation' lays down when land revenue is due, when and where the payment is to be made. Land revenue falls due on such date and is payable in such manner in such instalments, at such place or to such person, as prescribed under the Regulation. If land revenue is not paid on the specified date, time or place or to the person, the person liable becomes a defaulter. The pre-conditions must be fulfilled before a person can be stigmatized as a defaulter under Section 67 of the Regulation. Land revenue if not paid in the manner aforesaid is deemed to be arrear and every person liable for such payment is deemed to be 'a defaulter.' There is no material to show, in the instant case, (1) the date on which the land revenue was due; (2) that the petitioner did not pay the land revenue, (a) in the manner, (b) in such instalments, (c) at such place, (d) to such persons, as prescribed under the Regulation. The 'defaulters list' prepared under 'the Regulation' is also not there to show that the petitioner was a defaulter. Under these circumstances, when there was no material to show that the petitioner was in arrear of land revenue and/or was a defaulter as contemplated under Section 66 or 67 of 'the Regular tion.' the finding of the appellate authority stigmatizing the petitioner as defaulter is erroneous in law and based on no material. In the result, I am constrained to hold that the finding that the petitioner was a defaulter in payment of land revenue is a 'purported decision.'

5. In the result the impugned order is quashed and the Rule issued is made absolute. However, there will be no order as to costs. The learned counsel for the petitioner submits that the petitioner has cleared up his dues to the Mahkuma Parishad. If not, the arrears shall be recovered forthwith.


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