# SRI PRABIN RAM PHUKAN &ANR v. STATE OF ASSAM & ORS

- **Citation:** [2014] 13 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 2014-12-11
- **Case number:** Civil Appeal Nos. 662-663 of 2008
- **Bench:** M. Y. Eqbal, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-prabin-ram-phukan-anr-v-state-of-assam-ors-29572
- **Pages:** 30

## Headnote

.
Assam Land and Revenue Regulation, 1886- ss. 3(b),
A
B
70, 72 - Land revenue - Non-payment, by appellants-land
holders-Auction sale of property of appellant for realization C
of Rs. 731. 701-- State purchased the land/estate for Rs. 1 in
the auction proceedings - Board set aside the auction and
sale proceedings and directed for restoration of l~nd to the
appellant as also pay the appellants compensation amount
· deposited by IOC for allotted land - However, non-payment D
of compensation amount to the appellants - Single Judge
directed the State to pay. compensation amount to the
appellants - However, Division Bench upheld the auction
sale as also the transfer of land to the State - On appeal,
held: High Court erred in interfering with the finding of the
E
Board - Board rightly held that auction conducted was not
made in conformity with the procedure prescribed in the
Regulation; that no notice of either demand or/and sale of
land was served on the appellants and High Court ought not
to have interfered with this finding of fact; that the High Court F
exceeded its jurisdiction and reversed the factual finding; and
the writ court did not assign any cogent reason as to why the
factual finding of the Board was wrong - Thus, the auction
held by the State nefther legal and nor in conformity with the
requirements contained in the Regulation and rightly set G
aside by the Board- lmpugnedjudgment set aside and that
of the Board restored - State directed to pay the amount of
compensation deposited by IOC for the land allotted to them
to the appellants along with interest as also restore the
175
H
176
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A possession of the remaining land - Constitution of India,
1950-Arts. 227 and 300A.
B
Notice - Non-service of notice and a notice though
served but with some kind of procedural irregularities in
serving - Distinction between - Explained.
Allowing the appeals, the Court
HELD: 1.1 The finding of the High Court cannot be
concurred with. The High Court should not have
interfered with the finding of the Board which rightly held
C that auction conducted to recove.r the outstanding
arrears of land revenue (Rs.731.70) from the appellants
was not made in conformity with the procedure
prescribed in the Regulation and was, therefore, bad in
law. [Para 23][198-E-F]
D
E
1.2 In the first place, the well reasoned finding of
fact recorded by the Board in favour of the appellants
(landholders) on the question of non-service of notice
of the demand for payment of defaulted amount of arrears
of land revenue of Rs. 731.70 and non-service of notice
of sale of land was binding on the writ court, being a
pure finding of fact and more so, when it was based on
proper appreciation of facts. The High CouJ1: exceeded
its jurisdiction when it proceeded to examine this factual
issue like an appellate court and reversed the factual
F finding. Assuming that the High Court could go into this
issue in its writ jurisdictiQn, yet mere perusal of the
finding of the High Court would go to show that no
proper service much less effective service of notice of
demand and sale of land was made on the appellants. In
G other words, reading of reasoning and discussion of the
High Court cannot allow to reach to a conclusion that
the appellants were duly served of the notices. Rather it
would take to a conclusion that the appellants were not
properly served. The writ court did not assign any cogent
H
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
177
reason as to why the factual finding of the Board on this A
issue was wrong and hence, call for interference. On
examination of the issue of notice independently in the
light of the requirement of s. 72 read with Rules 133, 134,
136 and 136-A which deals with the mode of effecting
service on the defaulting landholder, then there is no B
hesitation in recording a finding that no notice was served
on the appellants as contemplated under the
aforementioned provisions and the High Court ought not
to have interf

## Text

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[2014] 13 S.C.R.175
SRI PRABIN RAM PHUKAN &ANR.
v.
STATE OF ASSAM & ORS.
(Civil Appeal Nos. 662-663 of 2008)
DECEMBER 11, 2014
[M. Y. EQBAL AND ABHAY MANOHAR SAPRE, JJ.)
.
Assam Land and Revenue Regulation, 1886- ss. 3(b),
A
B
70, 72 - Land revenue - Non-payment, by appellants-land
holders-Auction sale of property of appellant for realization C
of Rs. 731. 701-- State purchased the land/estate for Rs. 1 in
the auction proceedings - Board set aside the auction and
sale proceedings and directed for restoration of l~nd to the
appellant as also pay the appellants compensation amount
· deposited by IOC for allotted land - However, non-payment D
of compensation amount to the appellants - Single Judge
directed the State to pay. compensation amount to the
appellants - However, Division Bench upheld the auction
sale as also the transfer of land to the State - On appeal,
held: High Court erred in interfering with the finding of the
E
Board - Board rightly held that auction conducted was not
made in conformity with the procedure prescribed in the
Regulation; that no notice of either demand or/and sale of
land was served on the appellants and High Court ought not
to have interfered with this finding of fact; that the High Court F
exceeded its jurisdiction and reversed the factual finding; and
the writ court did not assign any cogent reason as to why the
factual finding of the Board was wrong - Thus, the auction
held by the State nefther legal and nor in conformity with the
requirements contained in the Regulation and rightly set G
aside by the Board- lmpugnedjudgment set aside and that
of the Board restored - State directed to pay the amount of
compensation deposited by IOC for the land allotted to them
to the appellants along with interest as also restore the
175
H
176
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A possession of the remaining land - Constitution of India,
1950-Arts. 227 and 300A.
B
Notice - Non-service of notice and a notice though
served but with some kind of procedural irregularities in
serving - Distinction between - Explained.
Allowing the appeals, the Court
HELD: 1.1 The finding of the High Court cannot be
concurred with. The High Court should not have
interfered with the finding of the Board which rightly held
C that auction conducted to recove.r the outstanding
arrears of land revenue (Rs.731.70) from the appellants
was not made in conformity with the procedure
prescribed in the Regulation and was, therefore, bad in
law. [Para 23][198-E-F]
D
E
1.2 In the first place, the well reasoned finding of
fact recorded by the Board in favour of the appellants
(landholders) on the question of non-service of notice
of the demand for payment of defaulted amount of arrears
of land revenue of Rs. 731.70 and non-service of notice
of sale of land was binding on the writ court, being a
pure finding of fact and more so, when it was based on
proper appreciation of facts. The High CouJ1: exceeded
its jurisdiction when it proceeded to examine this factual
issue like an appellate court and reversed the factual
F finding. Assuming that the High Court could go into this
issue in its writ jurisdictiQn, yet mere perusal of the
finding of the High Court would go to show that no
proper service much less effective service of notice of
demand and sale of land was made on the appellants. In
G other words, reading of reasoning and discussion of the
High Court cannot allow to reach to a conclusion that
the appellants were duly served of the notices. Rather it
would take to a conclusion that the appellants were not
properly served. The writ court did not assign any cogent
H
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
177
reason as to why the factual finding of the Board on this A
issue was wrong and hence, call for interference. On
examination of the issue of notice independently in the
light of the requirement of s. 72 read with Rules 133, 134,
136 and 136-A which deals with the mode of effecting
service on the defaulting landholder, then there is no B
hesitation in recording a finding that no notice was served
on the appellants as contemplated under the
aforementioned provisions and the High Court ought not
to have interfered with this finding of fact for holding
otherwise. [Paras 24, 25][198-G-H; 199-A-E; 200-A]
C
1.3 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 ca~e of.
former category of cases, all consequential action, if
taken would be rendered bad in law once the fact of nonD
service is proved whereas in the case of lat:n 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 . E
were held behind his back thereby rendering the action
"illegal" whereas in the case of later, he was otherwise
aware of the proceedings having received the notice
though with procedural irregularity committed in making
service of such notice on him. If a person has a F
knowledge of the action proposed in the notice, then the
action taken thereon cannot be held as being bad in law
by finding fault in the manner of effecting service unless
he is able to show substantial prejudice caused to him
. due to procedural lapse in making service on him. It, G
however, depends upon individual case to case to find
out the nature of procedural lapse complained of and
the resultant prejudi'Ce caused. The instant case falls in
former category of case. [Para 26][200-A-F]
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SUPREME COURT REPORTS
[2014) 13 S.C.R.
A
1.4 It is mandatory on the part of the State to serve
a proper notice to a person, who is liable to pay any kind
of State's dues strictly in the manner prescribed in the
Regulation. It is equally mandatory on the part of the
State to give prior notice to the defaulter for recovery of
B dues before his properties-moveable or/and
immoveable) are put to sale in the manner prescribed in
the Regulation. [Para 27][200-F-G]
1.5 The appellants were deprived of the land without
following the procedure prescribed in law because the
C so-called auction was conducted by the State behind
their back and without their knowledge. The action of
the State was thus, clearly violative of the appellants'
Constitutional right guaranteed under Article 300-A and
hence, such action cannot be sustained in law. [Para 29]
D [201-C-D]
1.6 There is nothing on record to show as to why
the extreme step to recover a small sum of Rs.731.70
paisa was required to be taken for sale of the estate
E under Section 70 and why arrears of Rs.731.70 paisa
could not be recovered by sale of any moveable
belonging to the appellants. It is inconceivable to think
that the appellants did not own moveable which would
not have even fetched Rs.731/- on sale or would have
fetched less amount. The auction held by the Deputy
F Commissioner for realization of dues by sale of land
under s.70 was bad in law being held in' contravention
of s.70(1) and was thus, not sustainable. [Paras 33, 34]
[202-C-E]
'
G
1. 7 Taking recourse to auction proceedings for sale
of defaulter's immovable property for realization of the
State dues is an extreme remedy. It is also discernable
in the facts of this case on reading Sections 69, 70 and
Rule 155. It has been held by this Court that once the
H State take recourse to a remedy of disposing of the
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
179
defaulter's property by means of public auction as A
provided in Regulation for realization of State dues then
its dominant consideration should always be to secure
the best price for the property put to sale. This can,
however, be achieved only when there is maximum ·
public participation in the process of sale and every one B
has an opportunity to offer the best offer to purchase
the property. The reason is that the public auction held
after adequate publicity ensures participation of every
person interested in purchasing the property and in that
process, the State and, in turn, the defaulter gets the best c
price of his property which was put to auction sale.
(Para 36][202-F-H; 203-A-B]
Chairman and Managing Director, SIPCOT,
Madras and Others v. Contromix Pvt. Ltd. 1995
(1) Suppl. SCR415: (1995) 4 SCC 595; Haryana
Financial Corporation and Another v. Jagdamba
Oil Mills and Another 2002 (1) SCR 621 : (2002)
3 sec 496 - relied on.
D
1.8 The auction was not held by the Deputy E
. Commissioner in conformity with the said principle. It
seems that the auction was held only on papers to show
compliance of the Rules to enable the State -to invoke
Rule 141 and acquire the land for Rs.11- as provided
therein. As a matter of fact, no efforts were made by the F
State to file any document to prove that adequate
publicity was given on all adjourned dates and despite
such publicity no bidder participated in the auction. It is
indeed inconceivable that a land in the district when put
to auction sale despite publicitywould go unnoticed and G
no person would come forward to bid for such land. It
appears that the State had decided to allot the land to
the IOC, who were interested to use the land for their
own purpose and hence recourse to remedy of disposal
of land by auction as provided in s.70 followed by
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
A invocation of Rule 141 was taken to acquire the land on
payment of Rs.1/- by the State and then its major part
was allotted to the IOC on payment of yearly premium
and further payment of compensation by the IOC.
[Para 37][203-C-G]
B
c
1.9 The auction held by the State was neither legal
and nor in conformity with the requirements contained
in the Regulation. It was, therefore, rightly set aside by
the Board. The impugned judgment is set aside and that
of the Board restored. [Paras 38, 39][203-G-H; 204-A]
1.10 The State-respondent no.1 is directed to pay
the amount of compensation deposited by the IOC for
the land allotted to them to the appellants along with
interest on the said amount at the rate of 6 % payable
0 from the date of deposit till paid to the appellants. The
State is also directed to restore the possession of the
remaining land. [Para 40][204-B-C]
E
Case Law Reference:
1995 (1) Suppl. SCR 415
relied on
Para 36
2002 (1) SCR 621
relied on
Para 36
CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.
662-663 of 2008.
From the Judgment and Order dated 06.05.2005 of the
F High Court of Gauhati in W.A. No. 512 of 2002 and W. P. (C)
No. 5628 of 2004.
Brijendra Chahar, Sr. Adv., Anshuman Sinha, Vijay Kumar
Pandey, Ms. Sangeeta Joshi, Pravir Choudhary for the
G Appellants.
H
Ms. Vartika Sahay Walia (for M/s. Corportae Law Group),
Renjith for the Respondents.
The following Judgment of the Court was delivered:
SRI PRABIN RAM PHUKAN y, STATE OF ASSAM
181
JUDGMENT
A
1. Leave granted
2. These civil appeals arise out of common judgment
dated 06.05.2005 passed by the Division Bench of the High
CourtofGuwahati in W.A. No. 512 of2002, which in tum, arises B
out of judgment dated 26.02.2001 passed by the learned
Single Judge in W.P. No. 2234 of 2000 and W.P. (Civil) No.
5628 of 2004 arising out of order dated 23.02.1998 passed
by the Board in Case No. 42RA(K) of 1996.
3. By impugned judgment, the Division Bench allowed C
the writ appeal and writ petition filed by the State of Assam, in
consequence, set aside the order 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.
D
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? · ·
E
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
59Bighas1Katha14 Leacha covered by Dag Nos. 435, 437, F
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 G
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 through. This land is subjected
H
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SUPREME COURT-REPORTS
[2014] 13 S.C.R.
A to payment of land revenue as per the provisions of the
Regulation.
7. It appears, as being an undisputed fact, that a sum of
Rs. 731. 70 was found payable by the appellants towards land
revenue on the aforesaid land (estate) and since the appellants
8 did not pay the said amount, the Deputy Commissioner
registered a case being Case No. 3/13of1976-77 for recovery
of Rs. 731. 70 from the appellants. The Deputy Commissioner
after making efforts to realize the dues by sale of moveable of
the appellants put the aforesaid land for auction sale on
C 29.06.1978 for realization of Rs. 731. 70 as per the provisions
of the Regulation. However, no bidder participated in the
auction proceedings held on few adjourned dates and hence,
the State stepped in and purchased the entire land/estate for
Rs.1 /- in the auction proceedings as provided under Rule 141.
P Thereafter, the State allotted 40 Bighas of land out of total land
to the Indian Oil Corporation (IOC) on payment of yearly
premium of Rs. 26,000/- per Kattha. In addition, the State also
directed the IOC to deposit Rs.38,50,600/- towards
compensation with the State Government. The IOC,
E accordingly, deposited the sum as directed.
8. The appellants (land holders) claiming to be
completely unaware of the aforesaid proceedings and on
coming to know of the same filed Case No. 42/RA(K) of 1996
F on 02.04.1996 before the Board at Guwahati under Rule 149
of the Regulation.The challenge to the entire proceedings was
on the grounds inter alia that firstly, the sale/auction
proceedings undertaken by the Deputy Commissioner for
realization of Rs. 731. 70 as arrears of land revenue for the land
G in question were per se without jurisdiction and against the
mandatory procedure prescribed in the Regulation for recovery,
attachment and sale of estate. Secondly, the appellants were
not given any notice of demand for payment of Rs. 731. 70 and
nor any notice was served prior to sale/auction proceedings
H as provided in the Regulation. Thirdly, the so called auction,
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
183
even if held, was no auction as contemplated in the Regulation · A
because no publicity was given to enable any bidder to
participate in the auction proceedings and in fact no bidder
participated in the said auction and lastly, in such
circumstances, the auction sale made in favour of the State
for Rs.1 /-as per Rule 141 was illegal and liable to be set aside, · B ·
. 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
req.overy of arrears of land revenue or/and auction proceedings
was served on the appellants much less served as per the C
proc~dure 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 ~een D
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 E
Regulation. The Bpard, 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 per law. It
was further directed that since in the meantime, out of total
F
land, some portion of the land, i.e., (40 Bighas or so) was
already allotted to the IOC for consideration and hence, instead
of restoring the possession of the land allotted to the IOC, the
amount of compensation deposited by the IOC for allotted land
was directed to be paid to the appellants after working out G
their actual share in the land. In this way, the appellants got
around 19 Bighas of land and also became entitled to receive
the compensation amount deposited by the IOC whereas the
IOC was allowed to retain the allotted land in lieu of
compensation paid by them for such land.
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
10. In compliance of the said order, the Deputy
Commissioner raised a demand (KRM 28/96/16) dated
15.02.1999 for Rs.1092/-towards land revenue and Rs.273/-
towards local tax from the appellants in relation to the land in
question. On 16.02.1999, the appellants deposited the sum
B so demanded. Since the State was not paying the
compensation amount to the appellants in terms of the
directions of the Board, the appellants filed Writ Petition No.
2234 of 2000 before the High Court seeking mandamus
against the State and the concerned State Authorities to pay/
c release the compensation amount to the appellants.
11. Learned single judge, by order dated 26.02.2001,
allowed the appellants' writ petition and by issuing a mandamus
directed the
0
State to pay the compensation amount to the appellants
in terms of order of the Board within three months. Feeling
aggrieved by the said order, the State f~ed review petition being
R.P. No. 4 of 2002. By order dated 11.01.2002, the Review
court dismissed the review petition.
E
F
12. Challenging the order dated 26.02.2001 in W.P. No.
2234 of 2000, the State filed intra court appeal being W.A. No
512 of 2002 before the High Court. The State also filed an
application for con donation of delay in filing the appeal since
it was filed beyond the period of limitation of around 496 days.
13. The High Court, by order dated 27.05.2003,
dismissed the appeal as being barred by limitation. It was held
that no sufficient cause had been shown by the State to
condone the delay in filing the appeal. Feeling aggrieved by
the dismissal of their appeal, the State filed SLP (C) No. 87 4
G of 2004 before this Court. By order dated 03.09.2004, this
Court granted leave and allowed the appeal and remanded
the case to the Division Bench for its decision on merits in the
appeal.
H
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
185
14. Challenging the order dated 23.02.1998 passed by A
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
0NANo. 512/2002), which was remanded by this Court to the
High Court for its disposal on merits with Writ Petition No 5628 B
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 C
. 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 D
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 High Court thus upheld the
auction sale as also the transfer of land to the State as provided
in Rule 141 for Rs.1 /-.Against this order, the landowners filed E
these appeals by way of special leave before this Court.
16. Assailing the legality and correctness of the order,
learned Counsel for the appellants mainly contended five points
thatare:
(i) that the High Court erred in allowing the writ appeal
and the writ petition filed by the State there.by erred in
quashing the order of the Board. According to him,
F
the w~ll-reasoned findings of fact recorded by the
Board was binding on the writ court while deciding G
the writ petition filed under Article 227 of the
Constitution and otherwise also the findings were
beyond challenge because they were legal and proper
calling no interference in the writ proceedings;
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186
A
B
c
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
(ii)that none of the mandatory procedure prescribed under
the Regulation and especially, the procedure
prescribed for, (1) effecting service of notices on the
defaulting landholders for recovery of land revenue
payable on their estate (2) sale of properties/estate
of the landholders for realization of unpaid land
revenue and (3) the manner as to how the auction sale
is to be conducted for disposal of the properties/estate
were complied with by the revenue authorities;
(iii)that when th ere was no notice served on the appellants
of the auction proceedings, no publicity was given to
such proceedings and no bidder participated in the
so-called auction proceedings then in such
circumstances, it was beyond anybody's
comprehension as to on what basis, the sale/auction
could be held and if held, the same could be held as
being legal.
(iv)that in no case, the land whose market value was more
than Rs.50 lacs (approx.) could directly be put to
auction sale for realization of such meager sum of Rs.
731. 70 as arrears of land revenue unless all other
modes of recovery provided in the Regulation had
been exhausted which in this case was not done and
assuming that it was done yet it was not done in
conformity with the procedure prescribed in the
Regulation;
(v) that in any event, such valuable land could not have
been restored or/and sold to the State for Rs.1 /- by
taking recourse to Rule 141 on the ground that no
bidder participated in the auction proceeding unless
entire procedure prescribed in Section 69 for recovery
of a<rears 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
SRI PRABIN RAM PHUKAN v. STATE-OF ASSAM
187
re-auction the land to enable the bidders to participate A
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, ifthey are allowed
to withdraw the compensation amount deposited by
the IOC for 40 Big has of land and are further allowed B
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.
c
19. Before we consider the factual issues arising in this
case, it is apposite to take note of the relevant Sections/Rules D
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 Regulation applies to all lands by virtue of
Section 4 except the lands which are specified in Section 4(a),
E
i.e., the land which is included in any forest constituted a
reserved forest under the law for the time being in force and
(b), i.e., any land which the State Government may by
notification exempt from operation of the Chapter. The relevant
provisions are extracted hereinbelow:
F ·
Sections
3. Definitions -
In this Regulation, unless there is·
something repugnant in the subject or context,
(b) "estate" includes -
(1) any land subject, either immediately or
prospectively, to the payment of land revenue, for
the discharge of which a separate engagement has
been entered into;
G
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188
A
B
c
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SUPREME.COURT REPORTS
[2014] 13 S.C.R.
(2) any land subject to the payment of, or assessed
with a separate amount as land revenue, although
no engagement has been entered into with the
Government for that amount;
(3) any local area for the appropriation of the
produce or products whereof a license or farm has
been granted under rules made by the State
Government under section 155, clause (e) or clause
(f);
(4) any char or island thrown up in a navigable river
which under the laws in force is at the disposal of
the Government.
(5) any land which is for the time being entered in
the Deputy Commissioner's register of revenue free
estates as a separate holding;
(6) any land being the exclusive property of the
Government of which the State Government has
direct the separate entry in the registers of
revenue-paying and revenue-free estates
mentioned in Chapter I.
3(i) "Recorded proprietor", "recorded land holder"
"recorded sharer" and "recorded possession"
meari any proprietor, land holder, sharer or
possession, as the case may be, registered in the
general registers prescribed in Chapter IV:
63. Liability for land-revenue etc. • Land-revenue
payable in respect of any estate shall be due jointly
and severally from all persons who had been in
possession of the estate or any part of it during any
portion of the agricultural year in respect of which
that revenue is payable.
69. Attachment and sale of moveables (1) The
Deputy Commissioner may, for the recovery of an
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
189
arrear, order the attachment and sale of so much of A
a defaulter's moveable property as will as nearly
as may be defray the arrear.
(2) Every such attachment and sale shall be
conducted according to the law for the time being
in force for the attachment and sale of moveable 8
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.
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(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 0
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 E
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 -
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(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 G
be sold unless the Deputy Commissioner is of
opinion that the process provided for in section 69
is not sufficient for the recovery of the arrear;
(2) If the arrear has accrued on a separate account
opened under Section 65, only the shares or lands H
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A
comprised in that account shall in the first place be
put up to sale; and, if the highest bid does not cover
the arrear, the Deputy Commissioner shall stop the
sale, and direct that the entire estate shall be put
up for sale at a future date, to be specified by him;
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and the entire estate shall be put up accordingly
and sold;
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(3) No property shall be sold under this section -
(a) For any arrear which may have become due in
respect thereof while it was under the management
of the Court of Wards, or was so circumstanced
that the Court of Wards might have exercised
jurisdiction over it under the law for the time being
in force; or
(b) For any arrear, which may have become due
while it was under attachment by order of a revenue
authority.
72. Notice of sale (1) If the Deputy Commissioner
proceeds to sell any property under Section 70, he
shall prepare a statement in manner prescribed,
specifying the property which will be sold, the time
and place of sale, the revenue assessed on the
property and any other particulars which he may
think necessary.
(2) A list of all estates for which a statement has been
prepared under sub-section (1) shall be pubrished
in manner prescribed, and the copy of the
statement relating to every such estate shall be
open to inspection by the pubic free of charge in
manner prescribed.
(3) If the revenue of any estate for which a statement
has been prepared under sub-section (1) exce~ds
five hundred rupees, a copy of the statement shall
be published in the official Gazette.
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
191
74. Sale by whom and when to be made (1) Every A
sale under this Chapter shall be made either by the
Deputy Commissioner in person or by an officer
specially empowered by the State Government in
this behalf.
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(2) No such sale shall take place on a Sundawor 8
other authorised holiday, or until after the expiration
of at least thirty days from the date on which the
(list of estates) has been published under section
72.
.
Rules
133. Notices of. demand under section 68 of the
Regulation shall ordinarily be issued by, and the
signature and seal of, the following officers:~
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(a) By the Deputy Commissioner with respect to all D
estates situated within the Sadar Subdiv\sion of a
district and not included within the limits of any
tahsil or mauza.
(b) By the Subdivisional Officer with respect to all E
estates situated wjthin the limits of a mufassil subdivision, 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 F
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 G
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 H
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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 proclamation • The statement and list of
estates to be prepared under section 72(1) and (2)
of the Land and Revenue Regulation, in respect of
property to be sold under section 70, shall be •
prepared in the language of the district and may, if
the Deputy Commissioner thin ks fit be recorded in
a book prepared for this purpose, to be called the
sale Statement Book. When published in the
Gazette, the statement shall also be published in
the vernacular of the district and in English.
136. Publication of list of estates ·The list of estates
referred to in the foregoing rule shall be published
(a) In the Court of the Revenue Officer by whom it
has been prepared;
(b) At the office of the Sub-Deputy Collector in
whose circle the estate is situated
(c) At the office of the Tahsildar or house of the
mauzadar Within whose tahsil or mauza defaulting
estate lies; and
(d) Where gaonburas are employed, on the
signboard of the gaonbura within whose charge the
defaulting estate falls;
(e) At the offices of the Gaon Panchayat and the
Anchalik Panchayat.
136A. Serving of sale statement • The sale
statement mentioned in rule 135 shall be served
SRI PRABIN RAM PHUKAN v. STATE OFASSAM
193
under subsection (4) of section 72 of the Regulation A
on the defaulter or, if he can not be found, it shall
be pasted on a conspicuous part of the estate.
141. Purchase of defaulting estates by the State
Government -When a defaulting estate is put up
for sale for arrears of revenue due thereon, if there 8 ·
be no bid, the Revenue Officer conducting the sale
may purchase the estate on account of the State
Government for one rupee or, if the highest bid be
insufficient to cover the arrear due, may purchase
the estate on account of State Government at the C
highest amount of bid.
154. Order to sell property - Should the defaulter,
after attachment of moveable property, still fail to
pay in the arrear with costs, the Deputy 0
Comm·issioner or Sub-divisional Officer shall, on
receiving a report to that effect from the mauzadar,
issue an order to the Nazir, to sell the property
attached if the arrear is not paid before the date fixed
for sale.
The mauzadar's report under this rule shall be
stamped with court-fee stamps equivalent to the
process fees required by the rules issued under
section 155 (b) of the Regulation.
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155. Sale defaulting estates - If the mauzadar is of F
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 G
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:
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Provided the arrear has accrue'tt 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
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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
C 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.
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"The case re.cord shows that prior to the sale of the
land, attempt was made for recovery of arrears
through attachment and sale of movables. But it·
has been denied by the appellants that any such
attempt was actually made. The Jarikarak stated
that he had gone to the residence of the defaulter
but he failed to serve the notice and for that reason
he hanged the notice in the office of the mauzadar.
He also stated that he failed to recover the arrear
as the defaulters were not found and other
members of the family were not willing to make the
payment. The report of the Jarikarak was not
properly endorsed by any witness. The attachment
and sale of movables is required under the note
below Rule 147 to be witnessed by at least two
respectable persons of the locality. But the report
of the Jarikarak was not endorsed by such persons
and nothing was stated by him regarding
attachment and sale of movables. Therefore, the
authenticity of the report on attempts made by the
Jarikarak for realization of the arrears through
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
195
attachment of movables is doubtful. Further, it is ·A
also seen that the notice was not duly served in
the (illegible) officer. The service of the notice,
therefore, cannot be. regarded as being adequate
and properly done.
After perusal of the sale record, it is also seen that 8
there was procedural irregularity at the time of
holding the auction sale. The Jarikarak had stated
that no bidder was found at the time of holding the
auction sale. But the report of the Jarikarak was
not endorsed by any witness. All these would raise C
some suspicion as to the authenticity of holding
the auction sale. As such the sale cannot be
regarded as being done in full conformity with the
provisions of the Rule. Therefore, injustice has
been caused to the pattadars of the land in question. D
The total area of land in question is 59 bighas 1
Katha 14 leachas, the market Value of which is over
fifty lakhs rupees. Therefore, the sale of the said
land for a sum of Rs. 732.00 has definitely caused E
g~eat hardship to the Appellants/Petitioners who are
the actual pattadar of the land in question.
I am, therefore, fully satisfied that the sale has
caused injustice as well as hardship to the
Appellants/Petitioners. The sale, therefore, F
deserves to be set aside.
Under Executive Instruction No. 133 annulment is
to be resorted to only as an alternative to other
means of realization through attachment and sale
of movables as well as sale of the estate and when G
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
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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 Addi. 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 the total land in question, have been
acquired and transferred by the Govt. of Assam to
Indian Oil Corporation (Assam Oil Division) and the
said Corporation has already paid necessary
compensation for the said land and occupied the
land on possession being handed over by the
authority concerned. It also appears that there were
tenants on the land transferred to Indian Oil
Corporation and their share of compensation was
already paid keeping the balance amount of
compensation· for the Pattadars. During the course
of hearing of this appeal, learned advocate for the
Appellants has submitted that the Appellants will
be satisfied if they receive the compensation
money instead of their land already transferred to
the Indian Oil Corporation. As the compensation
SRI PRABIN RAM PHUKAN v. STATE OF ASSAM
197
money has already been paid by the Indian Oil A
corporation and the same is kept in the Govt.
(illegible) after working payment of the share of the
compensation money may be paid to the Appellant
and the land will remain with the Indian Oil
Corporation."
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22. The aforesaid finding of Board was reversed and
set aside by the High Court in its writ jurisdiction in the
impugned order for sustaining the auction sale. It is also
apposite to reproduce the finding of the writ court infra.
"A~ order of attachment of movable property was
issued on 18.11.1976 for recovery of land revenue
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to the extent of Rs. 731.70, due from the pattadars
Shri Suren Ram Phukan and Shri Prabin Ram
Phukan. The aforesaid order was sought to be 0
delivered to the defaulters but the same could not
be executed and the process server submitted a
report to the effect that the defaulters were in
different places and, therefore could not be
contacted and their legal heirs/representatives so E
contacted, had submitted that they do not know
anything in the matter. The aforesaid endorsement
of the Process Server was recorded in the presence
of the two witnesses including a Gaonburah.