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GAHC010009182014

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/2321/2014

PURBATTAR YDUOG HANDICRAFT CO-OPERATIVE SOCIEITES LTD.

A REGISTERED CO-OP. SOCIETY, HAVING ITS OFFICE AT

BAMUNIMAIDAN, GHY- 21, DIST.- KAMRUP, ASSAM. REP. BY ITS

PRESIDENT SRI RIPUN BHUYAN

VERSUS

THE STATE OF ASSAM AND 5 ORS

REP. BY THE SECY. TO THE GOVT. OF ASSAM, REVENUE and DISASTER

MANAGEMENT DEPTT. SETTLEMENT BRANCH, ASSAM SECRETARIAT C,

DISPUR, GHY- 6.

2:THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM

REVENUE and DISASTER MANAGEMENT DEPTT.

DISPUR

GHY- 6.

3:THE DY. SECY. TO THE GOVT. OF ASSAM

REVENUE and DISASTER MANAGEMENT DEPTT.

DISPUR

GHY- 6.

4:THE DY. COMMISSIONER

KAMRUP M

LAND SETTLEMENT BRANCH

GHY- 1.

5:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY GMDA

STATFED BUILDING

BHANGAGARH

GHY- 5. REP. BY ITS CHEIF EXECUTIVE OFFICER. Page No.# 1/50

GAHC010009182014

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/2321/2014

PURBATTAR YDUOG HANDICRAFT CO-OPERATIVE SOCIEITES LTD.

A REGISTERED CO-OP. SOCIETY, HAVING ITS OFFICE AT

BAMUNIMAIDAN, GHY- 21, DIST.- KAMRUP, ASSAM. REP. BY ITS

PRESIDENT SRI RIPUN BHUYAN

VERSUS

THE STATE OF ASSAM AND 5 ORS

REP. BY THE SECY. TO THE GOVT. OF ASSAM, REVENUE and DISASTER

MANAGEMENT DEPTT. SETTLEMENT BRANCH, ASSAM SECRETARIAT C,

DISPUR, GHY- 6.

2:THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM

REVENUE and DISASTER MANAGEMENT DEPTT.

DISPUR

GHY- 6.

3:THE DY. SECY. TO THE GOVT. OF ASSAM

REVENUE and DISASTER MANAGEMENT DEPTT.

DISPUR

GHY- 6.

4:THE DY. COMMISSIONER

KAMRUP M

LAND SETTLEMENT BRANCH

GHY- 1.

5:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY GMDA

STATFED BUILDING

BHANGAGARH

GHY- 5. REP. BY ITS CHEIF EXECUTIVE OFFICER.

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6:THE CIRCLE OFFICER

GUWAHATI REVENUE CIRCLE

GHY- 1

For the Petitioner(s) : Mr. D. Das, Sr. Advocate

: Mr. D. P. Borah, Advocate

For the Respondent(s) : Mr. R. Borpujari, SC, Revenue

: Ms. U. Das, Addl. Sr. GA

Date of hearing : 11.01.2024

Date of Judgment : 05.02.2024

BEFORE

HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (CAV)

Heard Mr. D. Das, the learned Senior counsel assisted by Mr. D. P. Borah,

the learned counsel appearing on behalf of the Petitioner. I have also heard Mr.

R. Borpujari, the learned Standing counsel appearing on behalf of the Revenue

and Disaster Management Department, Government of Assam and Ms. U. Das,

the learned Additional Senior Government Advocate appearing on behalf of the

Deputy Commissioner, Kamrup (M) as well as the Circle Officer, Guwahati

Revenue Circle. None has appeared on behalf of the Guwahati Metropolitan

Development Authority.

2. The present writ petition challenges the order bearing

No.RSS.1418/2006/257 dated 25.04.2014 issued by the Additional Chief

Secretary to the Government of Assam, Revenue and Disaster Management

Department (for short “the impugned order”) and for a further direction that

the Respondent Authorities should not disturb the Petitioner’s rights over the

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land in question.

3. The facts as could be discerned from the pleadings are that the Petitioner

herein is a Cooperative Society which was registered under the Assam Co-

operative Societies Act, 1949. The Petitioner Society was issued a Registration

No.G-33/91/92 dated 19.03.1992. It is pertinent herein to mention that at the

time of filing of the writ petition, the Petitioner Society was represented by its

then Secretary Shri Paresh Chandra Haloi. Although, the Memorandum and the

Articles of Association or for that matter the byelaws of the Petitioner society

have not been enclosed to the writ petition but from a perusal of the

Paragraph No.2 of the writ petition, it reveals that the objectives of the said

society was to provide succor and livelihood to the unemployed youths, widows

and distressed women. It was mentioned that the Petitioner society was set up

to impart training and to undertake activities for manufacture and sale of

bamboo and cane products and also for imparting skilled training in embroidery

and other designer items. It was also mentioned that with a view to reach the

stage of self-sufficiency, the Petitioner society undertook activities for

expanding so as to be able to manufacture products of high quality which can

be exported and sold at reasonable prices within and outside the country and

also to be able to compete in the international market.

4. With the above aims and objectives, the Petitioner society made a

request to the District Collector, Kamrup for allotment and settlement of land in

its favour to enable the petitioner society to construct permanent worksheds

for the benefit of the handicraft artisans. The said request made by the

Petitioner society was duly taken note of by the Authorities concerned as

discernible from the communication dated 07.07.2004 issued by the Chief

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Revenue Assistant of the Office of the Deputy Commissioner, Kamrup,

Guwahati (Land Settlement Branch) to the Settlement Officer, Guwahati and

also to the Circle Officer, Guwahati Revenue Circle, requiring the said

Authorities to submit reports on the applications for settlement of land made

by the Applicants whose names were mentioned in the said communication.

5. While the said process was ongoing, the Petitioner society also made a

formal application to the Minister of Revenue highlighting the object and

benevolent activities of the petitioner society and made a request for allotment

and settlement of at least 3 (three) Bighas of land which was lying fallow

under Sarkari Dag No 229 of Sahar Guwahati Part-II, Guwahati Revenue Circle,

vide letter dated 07.04.2005. On the same date, the Revenue (Settlement)

Department, Government of Assam, issued an order asking the Deputy

Commissioner, Kamrup (Metro) to furnish proposal observing all formalities.

Thereupon, the Office of the Deputy Commissioner, Kamrup (Metro) (Land

Settlement Branch) vide a communication dated 07.05.2005 directed the Circle

Officer, Guwahati Revenue Circle to make enquiries into the matter and submit

report/proposal as per Land Policy after observing all formalities at an early

date.

6. The records reveal that, on 21.05.2005, a report/proposal was submitted

to the Deputy Commissioner, Kamrup (Metro) by the concerned Circle Officer

stating about the history and the status of the land so applied for. In the said

report of the Circle Officer, it was mentioned that the proposed land was lying

fallow as per the Chitha and that no proposal for settlement of the land in the

name of the aforesaid organization had earlier been submitted. It was also

stated that there were no valuable trees and that the land was within the

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urban area.

7. On the basis of the above report and subsequent enquiries being

conducted, vide a Letter No. RSS.307/2005/30 dated 13.09.2005 issued by the

Deputy Secretary to the Government of Assam, Revenue (Settlement)

Department and addressed to the Deputy Commissioner, Kamrup

(Metropolitan), Guwahati, it was informed that the Governor of Assam was

pleased to order for settlement of Sarkari land measuring 3 (three) Bighas

covered by Dag No. 1968 of Sahar Guwahati Pt-II under Guwahati Mouza (for

short referred to as “the land in question) in favour of the Petitioner society for

establishment of modernized factory etc. subject to fulfillment of NGO status of

the organization and subject to payment of 30% of the land Value as premium.

It was also mentioned that the land value was fixed at Rs.10 Lakhs per Katha.

The Deputy Commissioner, Kamrup (Metro) Guwahati was also directed to

hand over the possession of the land to the person concerned and the land

records were also directed to be corrected and the patta be issued after

realization of the premium in full.

8. The records reveals that thereupon, the Petitioner duly paid the premium

of 45 lakhs in five installments which was duly accepted by the concerned

Respondent Authorities. It is also seen from the records and more particularly

the affidavit-in-reply filed by the Petitioner on 03.03.2017 that the periodic

patta No.1180 was issued in favour of the Petitioner society for a period of 20

(twenty) years w.e.f 06.10.2005 to 06.10.2025 on 06.10.2005 itself. The record

of rights were also duly corrected on 05.10.2005.

9. From a further perusal of the writ petition, it also transpires that though

the settlement was made in favour of the Petitioner society; the premium was

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duly received; the records of rights were corrected and the periodic patta was

issued, the possession of the land in question was not immediately handed

over. It is stated in the writ petition that the Petitioner came to learn that there

was a malicious design initiated by certain vested circles in connivance with

some officials of the Revenue (Settlement) Department to deny the legal and

legitimate rights accrued upon the petitioner society in respect to the land in

question.

10. Before further deliberating on the facts as pleaded in the writ petition,

this Court finds it very significant to take note of an important aspect. The land

in question was initially a part of the Guwahati Jail as it then existed and

before carving out the same. A Public Interest Litigation was filed challenging

certain steps taken by the Respondent Authorities to allot the land to various

persons/organizations. This PIL was registered as WP(C) PIL No.8/2001. In the

said PIL, the Division Bench of this Court had passed an order dated

28.02.2001 thereby inter alia directing that no allotment be made in respect to

the lands which were reserved out of jail land including the Guwahati Jail

which included the land in question. The said interim order was subsisting

when the land was allotted and settled with the Petitioner society.

11. Now moving forward, the Petitioner apprehended that the settlement

order dated 13.09.2005 may be cancelled by the Respondent Authorities that

too without any notice for which the Petitioner approached this Court by filing

a writ petition on 31.08.2006. The said writ petition was registered and

numbered as WP(C) No.4369/2006. It is alleged in the instant writ petition that

on 06.09.2006, an order issued by the Additional Chief Secretary to the

Government of Assam, Revenue Department bearing No. RSS.307/2005/Pt-I/12

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dated 30.08.2006 was handed over the Petitioner. By the said order, the

settlement so made in favour of the Petitioner dated 13.09.2005 was cancelled

and the status quo of the land prior to its settlement was directed to be

maintained. The justification so set forth in the said order behind the

cancellation of the settlement was that the settlement made in favour of the

Petitioner was done when there was a restraining order in respect of any

allotment/settlement of jail land in different district/towns/cities of Assam to

any person including Guwahati. It was also mentioned that since the

restraining order passed in WP(C) PIL No.8/2001 was operative and that the

final decision of the High Court was awaited, therefore, in view of the same,

the Settlement order dated 13.09.2005 was cancelled. Further to that, it was

mentioned that as the settlement dated 13.09.2005 was passed in clear

violation of this Court’s directions, the settlement order dated 13.09.2005 was

void ab initio and as such there was no necessity of seeking any explanation

from the Petitioner society.

12. The Petitioner being aggrieved by the cancellation order dated

30.08.2006, challenged the same by filing a writ petition which was registered

as WP(C) No.4551/2006. This writ petition filed by the Petitioner society was

analogously heard with WP(C) PIL No.8/2001. Vide a common judgment and

order dated 27.07.2007, both the proceedings were disposed of. It is relevant

to take note of that the learned Division Bench of this Court vide its judgment

dated 27.07.2007 interfered with the order of cancellation dated 30.08.2006.

However, granted the liberty to the authorities concerned to take appropriate

action by issuing notice to the Petitioner in the event such authority proposes

to cancel the order of settlement made in favour of the Petitioner and to pass

necessary orders thereafter in accordance with law. Paragraph Nos. 10 to 16 of

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the said judgment passed by the learned Division Bench dated 27.07.2007

being relevant are quoted hereinbelow.

“10. The main contention of the learned counsel for the petitioner in the PIL is

relating to the settlement of land kept reserved for Guwahati jail to other persons or

organization or agencies. The affidavits filed by the Inspector General of Prisons as

well as by the Deputy Secretary to the Govt. of Assam, Home (B) Department

disclose that the Govt. took the decision to shift the jail from the existing place to a

different place and some portion of the land originally kept reserved for Guwahati jail

have been settled with some other persons/organizations. The Govt. is the

appropriate authority to decide about the requirement of land for the jails. The Court

cannot interfere with such decisions of the Govt. in settling the land with other

persons which was originally kept reserved for: Guwahati jail, unless such action is

illegal, arbitrary and against public interest. The petitioner, however, has not been

able to demonstrate how such action of the Govt. is illegal, arbitrary or against

public interest. It also appears from the affidavit filed by the Deputy Secretary to the

Govt. of Assam, Revenue (Settlement) Department in WP(C) No. 4551/2006 that

though certain land was kept reserved for Guwahati jail, a portion of it was resumed

by the Govt. in Revenue Department on 29.12.1987. That being the position, we are

unable to interfere with the various orders settling the part of the land, in favour of

private persons/organizations/agencies, which was originally kept reserved for

Guwahati jail.

11. As noticed above, the grievance of the petitioner in WP(C) 4551/2006 is that

an order of settlement made in its favour settling 3 bighas of land on 13.9.2005 has

been cancelled by the Addl. Chief Secretary vide order dated 30.8.2006 without

issuing any notice and without giving any opportunity of being heard.

12. From the order impugned in the said writ petition, i.e. order dated 30.8.2006,

it is evident that no such notice was issued to the petitioner before passing such

order of cancellation of settlement though the Deputy Secretary in the affidavit dated

7.3.2007 has admitted that the order of settlement can be cancelled after providing

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an opportunity of hearing to the aggrieved persons.

13. There is no dispute to the fact that the order of settlement was passed on

13.9.2005 in favour of the petitioner settling an area of 3 bighas of land and the

petitioner pursuant to such order of settlement has paid the premium fixed by the

authority. Even the revenue records have been corrected accordingly. A right has

been accrued on the petitioner in WP(C) No. 4551/2006 by virtue of such order of

allotment and on payment of the premium fixed by the Govt. and such right cannot

be taken away without hearing the petitioner and without issuing any notice, as has

been done in the instant case by the Addl. Chief Secretary, while cancelling the

settlement made in favour of the petitioner.

14. That being the position, the order dated 30.8.2006 cannot stand the scrutiny

of law, the same having been passed in violation of the principles of natural justice.

Hence the order dated 30.8.2006 is set aside.

15. It is, however, open to the authority concerned to issue notice to the

petitioner, in the event such authority proposes to cancel the order of settlement

made in its favour and pass necessary order thereafter, in accordance with law.

16. The PIL No. 8/2001 and WP(C) No. 4551/2006 are 7 accordingly disposed of

with the aforesaid directions and observations. No costs.”

13. From the above quoted paragraphs of the judgment dated 27.07.2007, it

would reveal that the learned Division Bench of this Court had categorically

observed that the Government is the appropriate authority to decide about the

requirement of the land for the jails and the Court cannot interfere with such

decision of the Government in settling the land with other persons which was

originally kept reserved for Guwahati Jail, unless such action was illegal,

arbitrary and against public interest. It was also observed that the Petitioner of

WP(C) PIL No.8/2001 failed to demonstrate as to how the action of the

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Government in settling the land with other persons was illegal, arbitrary and

against public interest. It is for that reason, the learned Division Bench of this

Court had categorically observed that the Court was not inclined to interfere

with the various orders of settling the part of the land in favour of the private

persons/organizations/agencies which was originally kept reserved for

Guwahati jail. As regards the writ petition so filed by the Petitioner society, the

learned Division Bench of this Court had observed that with the land being

settled in favour of the Petitioner society and the Petitioner society having paid

the premium, a right had accrued upon the Petitioner society and the same

cannot be taken away without hearing the Petitioner and without issuing any

notice. As the order dated 30.08.2006 by which the settlement dated

13.09.2005 was cancelled, was without issuance of any notice, the order of

cancellation dated 30.08.2006 was interfered with. However, liberty was given

to the State Government, if it proposes to cancel the order of settlement by

issuing notice to the petitioner society.

14. Thereupon, the records of the writ petition reveals that in the year 2010,

the Petitioner claims to have sought for permission for construction. There

were various reminders issued to the Commissioner of Guwahati Municipal

Corporation requesting for granting of the permission. It is however very

significant to note from Annexure-19 and 20 to the writ petition which are two

documents and they relate to communications issued to the Commissioner,

Guwahati Municipal Corporation and the Commissioner, Revenue Department,

Government of Assam. In both the communications, the Petitioner mentioned

that the Petitioner applied for permission for construction and the details given

therein were in respect to an application dated 29.07.2010 bearing Misc.

Receipt Serial No.809629 in Book No.B-8097. The significance of these details

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would be seen in the later segments of the instant judgment.

15. Be that as it may, after around 3½ years from the date of the judgment

of the learned Division Bench of this Court, a show cause notice dated

18.01.2011 was issued by the Deputy Secretary to the Government of Assam,

Revenue and Disaster Management Department. In the said Show Cause

notice, it was inter alia mentioned that the Petitioner society vide the letter

dated 07.04.2005 had applied for settlement of land for establishment of a

training centre, residential accommodation for poor, widow and destitute

women in order to make them self-sufficient by imparting training in cane and

bamboo industry. On the basis of the said letter, the Government settled 3

Bighas of land covered by Dag No.1968 of Sahar Guwahati Part-II under

Guwahati Mouza with the Petitioner society on realization of 30% of the land

value fixed @Rs.10 Lakhs per Katha subject to the fulfillment of the NGO

status of the organization vide letter dated 13.09.2005. It was mentioned that

in spite of so many years of settlement, the Petitioner society having not

created any of the structures for which the application for land settlement was

made, the Petitioner society was asked to show cause as to why the settlement

of 3 Bighas of land covered by Dag No.1968 of Sahar Guwahati Part-II under

Guwahati Mouza made vide Government letter dated 13.09.2005 should not be

cancelled for not using the land for the purpose for which the application was

made. The Petitioner society was asked to submit the reply within 15 days

from the date of receipt of the letter.

16. The Petitioner society on receiving the said notice submitted a reply on

08.02.2011. In the said reply, the Petitioner society categorically mentioned the

difficulties faced for not being able to raise construction. It was mentioned that

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the GMC authority had also in spite of various requests, have not issued the

building permission. Further to that, it was also mentioned that the order of

settlement dated 13.09.2005 did not impose any condition or limit any time

within which permanent structures were to be erected.

17. Pursuant to the reply so submitted by the Petitioner society on

08.02.2011, almost after one year nine months, an order was passed i.e. on

29.11.2012 wherein it was mentioned that from a report from the

Commissioner, GMC, it could be learnt that the Petitioner society had sought

for permission for construction of a multistoried residential/commercial

apartment, commercial shops over the settled land rather than handicraft

promotion activity centre. It was also mentioned that from the report of the

Registrar of Cooperative Societies, the certificate of registration of the

Petitioner society showed that the area of operation of Petitioner society was at

Salbari, Satgaon and Noonmati. But on the other hand, the society had applied

for land in Fancy Bazar, Guwahati which was outside the area of operation of

the Petitioner society. It was also mentioned that the Petitioner got the

Government land settled by misrepresentation of facts and under such

circumstances, the settlement order dated 13.09.2005 was cancelled and the

land records were directed to be corrected. It was also stated therein that the

premium so paid by the Petitioner society be returned to the Petitioner and the

Deputy Commissioner was directed to move the Government for necessary

refund of the amount.

18. Being aggrieved by the said order dated 29.11.2012, the Petitioner

society filed a writ petition being WP(C) No.6190/2012. This Court vide an

order dated 19.12.2012 disposed of the said writ petition observing that in the

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order dated 29.11.2012 impugned in the writ proceedings, certain additional

facts were taken into consideration which were not a part of the show cause

notice. Accordingly, this Court granted liberty to the Petitioner to make

appropriate representation against the said order dated 29.11.2012 treating

the same to be a show cause notice and the authority was directed to pass a

speaking order thereupon. It was further directed that the order dated

29.11.2012 may not be given effect to till the passing of the speaking order.

19. Pursuant to the said order passed by this Court on 19.12.2012 in WP(C)

No.6190/2012, the Petitioner submitted a representation on 28.12.2012 stating

inter alia that the additional grounds on which the order dated 29.11.2012 was

passed, was without any basis. It was categorically mentioned that the

permission which was sought for construction was in strict compliance to the

objects sought to be achieved and the Petitioner society never contemplated to

do anything otherwise than to promote its objectives i.e. promoting handicrafts

activities over the land settled with it. At this stage, this Court finds it very

pertinent to take note of Paragraph Nos. 3(ii) and 3(iii) of the reply submitted

by the Petitioner society on 28.12.2012 which are quoted hereinunder:

“(ii) The application requesting permission for R.C.C. building construction for

constructing Show Rooms, Exhibition Center, Modernization Factory and residential

units on the said land was made to the Guwahati Municipal Corporation, Guwahati on

29.07.2010 and, as required, the Society had also paid the necessary processing fee

for grant of the building permission together with the Plan and Estimates under the

authority and signature of the Secretary, Purbattar Udyog Handicraft Cooperative

Societies Limited. A bare perusal of the proposed building plan will go to show that

the same has been designed only and only to promote and encourage handicraft

activity. The proposed Plan envisaged 3 (Three) RCC Buildings over the settled land

as Building-1, Building-2 and Building-3. The proposed Building-1, which assumes top

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priority over the other two Buildings, is exclusively designed to house the Handicraft

Show Room for show-casing the locally manufactured/woven/produced handicrafts.

It is designed to cover the entire permissible Ground Floor area of 535.79 square

metres. The Handicraft Exhibition Center/Modernization Factory, also to showcase the

items and hold Exhibitions will cover the entire permissible First Floor area of 434.82

square metres with the Second Floor to be utilized as the Society’s Office-cum-Hall

covering the entire permissible area of 434.82 square metres. The proposed Building

Nos. 2 and 3 have been designed to be set up as Car Parking areas on the Ground

Floors and residential units for the members and various staff/employees of the

Society. The proposed Building No.2 will consist of 4 (four) residential units on each

floor whereas the proposed Building No.3 will consist of 3 (three) residential units on

each floor, as detailed in the Site Plan Map available with the GMC authority. To

reiterate, the said residential units are only meant for use, occupation and utilization

by the members and staff/employees of the Society who are dedicated and integral

to the promotion of the solemn objects of the Society.

(iii) The proposed building Plan is in strict compliance of the object sought to be

achieved. The Society has never ever contemplated to do anything otherwise than to

promote its objectives of promoting handicraft activity over the land settled with it.”

20. On the aspect pertaining to the area of the operation of the society, it

was mentioned in the reply dated 28.12.2012 that though in terms with

Clause-3 of the byelaws of the Petitioner society, the area of operation was

indicated as Salbari, Noonmati and Satgaon but the said Clause also provided

that as per the requirement, the territorial limit can be altered with the

approval of the Registrar. It was mentioned that due steps were taken for

alteration of area of operation and the amendment of the byelaws of the

society.

21. The record further reveals that while the proceedings was pending

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before the concerned authority in the Revenue and Disaster Management

Department, the Deputy Secretary of the said Department wrote a letter to the

Chief Executive Officer of the Guwahati Metropolitan Development Authority on

15.10.2013 asking about its views in respect to a letter submitted by the

Petitioner pertaining to settlement of the Government land measuring 3 (three)

Bighas covered by Dag No.1968 of Sahar Guwahati Part-II under Guwahati

Mouza with the Petitioner society. To the said communication, the Chief

Executive Officer of the Guwahati Metropolitan Development Authority had

issued a communication dated 18.11.2013 to the Deputy Secretary to the

Government of Assam, Revenue and Disaster Management Department stating

inter alia that the land settled with the Petitioner society is in the prime

location which is very important and is required by the GMDA for the proposed

Multilevel Car Parking Project as considered by the Ministry of Urban

Development, Government of India under the JNNURM. It was also mentioned

that the GMDA was very much interested in availing the above 3 Bighas of land

free of cost and if required, the GMDA is also ready to pay the actual premium

paid to the Government by the Petitioner society along with bank interest.

Thereupon hearings were conducted and the impugned order was passed on

25.04.2014 whereby not only the settlement order dated 13.09.2005 was

cancelled but the land which was settled with the Petitioner was resettled with

the GMDA for development of multistoried car parking and infrastructure

facilities. Being aggrieved by the order dated 25.04.2014, the Petitioner hence

approached this Court by filing the instant writ petition on 02.05.2014. This

Court vide an order dated 07.05.2014 issued notice and also directed the

parties to obtain instruction as to whether they would be willing to attempt

mediation for resolving the dispute out of Court.

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22. On 31.07.2014, an affidavit-in-opposition was filed by the Respondent

No.3. In the said affidavit, it was mentioned that from the communication

received from the Commissioner, GMC dated 30.04.2011, it came to the

knowledge of the Revenue and Disaster Management Department that the

Petitioner had sought permission for construction of a multistoried

residential/commercial apartment, commercial shops over the settled land

rather than establishment of training centre, residential accommodation for

poor, widow and destitute women in order to make themselves self-sufficient

by imparting training in cane and bamboo industry which the Petitioner society

had stated in their application dated 07.04.2005. It was mentioned that the

plan so submitted by the Petitioner society to the GMC authority for

construction of residential flats in the two 8 storied buildings (Building 2 and 3)

do not conform to the aims and objectives of the said society as intimated

earlier to the State Government. It was further mentioned that from the report

of Registrar of Cooperative Society as well as the certificate of registration of

the Petitioner society shows that the area of operation of the said society was

at Salbari, Satgaon and Noonmati. But the society had applied for land in Fancy

Bazar, Guwahati which was outside the area of operation of the Petitioner’s

society. In addition to the above, it was stated that as it appears that the

Petitioner had proposed to use the land in question for commercial purpose in

violation of the terms and condition of the settlement by the State Government

by changing the purpose of utilization of land from the purpose for which it

was applied for thereby concealing this fact from the Government at the time

of settlement, it tantamounted to misleading the Government and obtaining

settlement by misrepresentation.

23. Pursuant to the filing of the said affidavit by the Respondent No.3,

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another additional affidavit was filed by the Respondent No.3 on 28.07.2015.

In the said additional affidavit, it was mentioned that the Additional Deputy

Commissioner, Kamrup (M), Guwahati and the Senior Sub-Registrar, Kamrup

(M) had informed the deponent of the said additional affidavit that two

registered deed bearing Serial No.18220 and Deed No.11903 (partition deed)

and Serial No.18223 and Deed No.11904 (Relinquishment Deed) were

executed by the Secretary of the Petitioner society namely Shri Paresh Chandra

Haloi on 07.10.2005. It was mentioned that the original deeds could not be

traced out but the records of registration were available in the fee book of Sub-

Registrar Office. Further to that, a letter dated 05.12.2014 was issued by Shri

Putul Baishya, Inspector of Police, CID to the Sub-Registrar from which it

reveals that Shri Paresh Chandra Haloi, the Secretary of the Petitioner society

reportedly partitioned and relinquished the land in 2005 vide the Deed Nos.

11903/05 and 11904/05 in favour of Shri Manab Das and 6 others. It was

further mentioned that the land was settled at a concessional premium at the

rate of 30% of the land value (applicable to NGOs and Trusts etc. devoted to

public purposes, which yield no return to private individuals) for establishment

of training centre for poor, widow and destitute women in order to make them

self-sufficient. It was not settled for commercial purpose. It was therefore

stated that as the Petitioner had proposed to use the land in question for

commercial purpose in violation of terms and conditions of settlement by the

State Government by changing the purpose of utilization of land from the

purpose for which it was applied and it amounted to misleading the

Government for their personal gain for which the Government of Assam had

cancelled the land settlement vide the impugned order dated 25.04.2014. In

paragraph No.3 of the said additional affidavit, it was also mentioned that the

Page No.# 18/50

petitioner by ignoring the very purpose of using the land for poor and destitute

woman and establishing the training centre had been partitioned and

relinquished the land in 2005 by way of Registered Deeds by keeping in dark

the authorities concerned and has applied for multistoried construction for

residential and commercial flats.

24. To the said affidavit-in-opposition and the additional affidavit filed by the

Respondent No.3, the Petitioner filed a common affidavit-in-reply on

03.03.2017. In the said reply, amongst denying the various statements and

allegations made in the affidavit-in-opposition as well as in the additional

affidavit-in-opposition filed by the Respondent No.3, the Petitioner categorically

mentioned in the Paragraph No.13 as regards what form of construction the

Petitioner proposed to make on the land for which the permission was sought

for. It is however relevant to observe that the Petitioner did not bring on record

the application so filed by the petitioner seeking construction and also did not

disclose who actually applied for the permission. Rather, on oath, the Petitioner

stated what type of construction the Petitioner sought permission to construct.

The said paragraph No.13 of the affidavit-in-reply is quoted herein under:

“13. That, in reply to the statements made in paragraph 15 of the affidavit-in-

opposition, the deponent begs to refer to and reaffirm the statements made in the

other paragraphs of the writ petition, more particularly, paragraph 28 of the writ

petition. It was clearly mentioned in the representations dated 28.12.2012 and dated

11.09.2013 of the petitioner society that the proposed Building - 1 was exclusively

designed to house Handicraft Show Room for show-casing the locally

manufactured/woven/produced handicrafts. It has been designed to cover the entire

permissible Ground Floor area of 557.79 square metres. The Handicraft Exhibition

Center/Modernization Factory, also to show-case the items and hold Exhibitions

would cover the entire permissible First Floor area of 434.82 square metres with the

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Second Floor to be utilized as the Society’s Office-cum-Hall covering the entire

permissible area of 434.82 square metres. The proposed Building - 2 and Building - 3

have been designed to be set up as car parking areas on the Ground Floors and

residential units for the members and various staff/employees of the Society. It

transpires from the impugned Order dated 25.04.2014 that no fault was found with

the proposed Building - 1, meaning thereby, the said Building - 1 was found to be in

conformity with the object and purpose for which the land was settled. It is stated

that in the very first application dated 07.04.2005 of the petitioner society it was

clearly indicated that in the event of settlement of the plot of land under reference,

the same would also be utilized for residences apart from training centre. It is really

preposterous on the part of the respondent authority to observe that the intended

purpose of construction of residential flats in Building - 2 and Building - 3 was not in

conformity with the aims and objectives of the petitioner society. It is emphatically

stated once again, as in the writ petition, that the petitioner society had never ever

intended to use the land for commercial purposes in violation of the terms and

conditions of settlement. It is categorically stated that the petitioner society has

never ever contemplated to do anything otherwise than to promote its objectives of

promoting handicraft activity. The deponent begs to refer to and rely upon the terms

and conditions of settlement as embodied in the Khiraj Periodic Patta issued in favour

of the petitioner society. The deponent begs to state that the quoted portion of the

representation dated 28.12.2012 is to be read in context with the whole object made

in the said representation and cannot be read in isolation for the purpose of twisting

the real context.”

25. As regards the Partition Deed bearing No.11903 and Relinquishment

Deed No.11904, the Petitioner categorically denied that any such deed(s) were

executed by the Petitioner through its Secretary. Further to that, it was

mentioned that the Secretary of the Petitioner had made applications under the

Right to Information Act, 2005 before the Public Information Officer of the

Office of the Senior Sub-Registrar, Kamrup (M) on 10.08.2015 seeking the

Page No.# 20/50

details of the persons with whom, it was alleged that the Secretary of the

Petitioner had executed the two registered deeds. However, no information

was provided. On the aspect of granting settlement at the rate of 30% of the

prevailing market price, it was stated that it was the norm with all non-

Government institution and other socio-cultural institution, trusts etc. of public

nature. It was further mentioned that the impugned order dated 25.04.2014

was in contravention of the Settlement Rules inasmuch as the Commissioner is

empowered under Rule 26 of the Settlement Rules to either confirm or cancel

any settlement if it was made or issued in contravention of the Rules. It was

stated that if there is no violation of the Rules while granting or issuing of the

settlement, the Commissioner has no jurisdiction to exercise his power under

Rule 26 of the Settlement Rules.

26. Another additional affidavit was filed on 30.01.2018, this time by the

Respondent No.1. This additional affidavit brings to light various aspects which

the Petitioner ought to have disclosed but were not disclosed. In the said

additional affidavit, it was mentioned that the Petitioner society through its

Chairman as well as the Secretary had executed two registered Irrevocable

Power of Attorneys thereby appointing/ nominating/ constituting/authorizing

M/s Bhuyan Projects Private Ltd. a company registered under the Companies

Act, 1956 having registered office situated at Raj Apartment, B.K. Kakoty Road,

Ulubari, Guwahati – 781007 and represented by its Director Shri Ripun Bhuayn,

son of Late M.R. Bhuyan inter alia for the purpose of applying before the

GMDA/GMC or other connected authorities for obtaining permission to

undertake construction of multistoried R.C.C. Building over the said plot of land

to construct/build multistoried commercial/residential building, modernized

factory, residential flat/flats, commercial shop/shops over the said plot of land

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as well as to raise, collect, receive the money/consideration from the

prospective parties/purchasers of residential flats and prospective

tenants/buyers for the commercial portion as well as for the modernized

factory of the proposed building and acknowledge the same etc. It was further

mentioned that on the basis of the said Power of Attorney, permission was duly

applied for commercial-cum-residential building for Himalayan Agency of M/s

Bhuyan Projects Pvt. Ltd.

27. This Court had duly perused the documents which have been enclosed to

the said additional affidavit filed by the Respondent No.1. As the said

documents are very pertinent to decide the dispute, this Court finds it apt to

deal with the same in detail.

(i) Annexure-A to the said additional affidavit is the application form to

erect, re-erect or to make material alteration in a building addressed to the

Commissioner, Guwahati Municipal Corporation and the number mentioned

therein was GPL/29/346/29072010. The enclosure to the said document are

the receipts of the process fee of Rs.4,500/- and the Receipt No. therein was

809629 corresponding to Book No.8097 dated 29.07.2010. At this stage, if this

Court takes note of the communications enclosed as Annexure-19 and 20 to

the writ petition, the details of which are mentioned in Paragraph-14 herein

above, it would show that the Chairman/Secretary of the Petitioner society

referred to this very application and the receipt bearing Serial No.809629 in

Book No.B-8097. This application was signed by Shri Ripun Bhuyan, the

attorney of the Petitioner society.

(ii) Annexure-B and Annexure-C are two registered irrevocable general Power

of Attorneys bearing Deed Nos. 1891 and 3299 dated 25.05.2010 and

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04.09.2010 respectively. By these two irrevocable general Power of Attorneys,

the Chairman as well as the Secretary of the Petitioner society had nominated

M/s Bhuyan Projects Private Ltd. represented by its Director, Shri Ripun Bhuyan

as the Attorney of the Petitioner society to carry out various activities i.e. for

making application before the concerned authority for permission and

thereupon after obtaining permission, constructed multistoried buildings.

Clauses 8, 9 and 10 of the registered Power of Attorney bearing Deed No.1891

dated 25.05.2010 are very pertinent inasmuch as the attorney not only has

been permitted to raise construction but also to raise, collect, receive the

money/consideration from prospective parties/purchasers of residential flats

and prospective tenant/buyers for the commercial portion as well as for the

modernized factory of the proposed building. Further to that, power was given

to authorize the proposed buyers of the residential flats and the commercial

shop/shops of the building to mortgage their portion of the

flat/flats/shop/shops to any financial institution/Bank/Banks or any financial

authority/authorities for financial assistance and to enter into agreement(s)

with such proposed buyers of the flat/flats/shop/shops and also for the

modernized factory. Clause 10 further seems to be in complete conflict from

the pleadings of the Petitioners in both the writ petition as well as in the

affidavit-in-reply inasmuch as it empowers the attorney holder to sell, resale,

lease out, let out the flat/flats, shop/shops and spaces of the proposed

multistoried buildings (parking space and utility space) to the buyers of the

flats and also to sell or transfer in any way partly or in full the commercial

portions/modernized factory of the proposed building. Clauses 8, 9 and 10 of

the said Power of Attorney being relevant are quoted herein below:

“8. To raise, collect, receive the money/consideration from the prospective

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parties/purchasers of residential flats and prospective tenants/buyers for the

commercial portion as well as for the modernized factory of the proposed building

and acknowledge the same.

9. To authorise the proposed buyers of the residential flats and commercial

shop/shops of the building to mortgage their portion of flat/flats/shop/shops to any

financial institution/Bank/Banks or any financial authority/authorities for financial

assistance and to enter into an agreement with such proposed buyers of the

flat/flats/shop/shops and also for the modernized factory.

10. To sell, resell, lease out, Jet out the flat/flats, shop/shops and spaces of the

proposed multistoried building (parking space and utility space) for the Buyers of the

flats only and also our said attorney shall be entitled to sell or transfer in any way in

part or in full of the commercial portions/modernized factory of the proposed

building.”

(iii) Annexure-D to the said additional affidavit is the statement of the

proposal and the certificate by the owner and the registered architect of the

proposed building which shows that the ground floor was proposed for parking

and commercial. The first floor, second floor, third floor would be used as

residential and commercial whereas the fourth floor to the eight floor would be

used for residential purpose. The parking space available would be 77 of which

26 would be open and 51 would be stilt parking or ground floor covered

parking. This statement of the proposal and the certificate enclosed as

Annexure-D to the additional affidavit is not only contrary to paragraph 3(ii)

and (iii) of the representation submitted on 28.12.2012 as well as the

paragraph No.13 of the additional affidavit-in-reply which quoted hereinabove

but also shows that the Petitioner made false statements on oath.

28. To that said additional affidavit filed by the Respondent No.1, the

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Petitioner through its Secretary filed an affidavit-in-reply on 09.02.2018. There

is no denial to those documents enclosed to the additional affidavit of the

Respondent No.1. Rather, for the tenor of the affidavit-in-reply, it reveals that

the documents were rather admitted. In the said affidavit-in-reply, it was

mentioned that the Power of Attorneys and the agreements entered into with

M/s Bhuyan Projects Private Ltd. were cancelled by the writ petitioner by

execution of revocation of deed with due intimation to M/s Bhuyan Projects

Private Ltd. by notice sent through registered post which was duly received by

M/s Bhuyan Projects Private Ltd. and the same was duly within the knowledge

of M/s Bhuyan Projects Private Ltd. To that said affidavit-in-reply, the

revocation letter dated 16.02.2012 addressed to the Registrar, Kamrup (M);

copy of the revocation deed dated 12.01.2012; postal receipt dated 13.01.2012

and a letter dated 20.10.2012 to the Commissioner, GMC were enclosed as

Annexure-1, 2 and 3. This Court has duly perused the said communications

and finds it relevant to take note of the enclosures in detail as the same in the

opinion of this Court are not a correct reflection to the contents of the affidavit-

in-reply.

(i) Annexure-1 is a communication issued to the Registrar, Kamrup (M)

dated 16.02.2012. In the said communication, it was stated that the former

Chairman of the Petitioner society along with the present Secretary made

agreement with M/s Bhuyan Projects Private Ltd. on 25.05.2010 and also

executed registered Power of Attorney bearing Deed No.1891/2010 dated

26.05.2010 before the Office of the Sub-Registrar, Kamrup (M), Guwahati. The

Petitioner society had instructed M/s Bhuyan Projects Private Ltd. to do as per

the development agreement but the said company failed to do so.

Subsequently, the said M/s Bhuyan Projects Private Ltd. insisted for a fresh

Page No.# 25/50

agreement for which the previous agreement was cancelled and a new

agreement was signed which was registered on 06.09.2010 in spite of

unwillingness of the Petitioner society. It was further mentioned that the

Petitioner society had decided to cancel all agreements between M/s Bhuyan

Projects Private Ltd. and to revoke the Power of Attorney bearing Deed

No.1891 dated 26.05.2010 and had requested M/s Bhuyan Projects Private Ltd.

to come to the Office of the Sub-Registrar, Guwahati for execution of the Deed

of Revocation in respect to the General Power of Attorney bearing Deed

No.1891 dated 26.05.2010. It was also mentioned that the representative of

the Petitioner went to the Sub-Registrar’s Office to revoke to Power of Attorney

bearing Deed No.1891 but the Sub-Registrar Office refused to do so and as

such the Power of Attorney was revoked before the Notary Public on

12.01.2012. It is interesting to note at this stage that it is well settled that a

registered Power of Attorney can only be revoked by a Registered Deed of

Revocation and not by executing a Deed of Revocation before a Notary Public.

(ii) Annexure-2 is the Deed of revocation of Power of Attorney bearing Deed

No.1891 dated 26.05.2010 executed before a Notary Public of the Government

of Assam.

(iii) Annexure-3 is the communication dated 20.10.2012 issued to the

Commissioner, Guwahati Municipal Corporation intimating the Commissioner,

Guwahati Municipal Corporation that the agreement between the Petitioner

society and Shri Ripun Bhuyan no longer subsists due to the failure of Shri

Ripun Bhuyan to stick to the terms and conditions of the agreement and the

authority was requested to issue NOC to the Petitioner society only.

It is also relevant to take note of that in the said affidavit-in-reply filed on

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09.02.2018, it was mentioned that the Petitioner society had also filed a suit

being Title Suit No.52/2018 along with Misc. Case No.109/2018 before the

Court of the Civil Judge, Senior Division No.1, Kamrup (M) at Guwahati for

cancellation of all those deeds executed with M/s Bhuyan Projects Private Ltd.

It is beyond comprehension of this Court why the Petitioner took 6 (six) long

years to challenge the Deeds by filing a suit in the year 2018 just prior to filing

of the affidavit-in-reply.

29. This Court however finds it very pertinent to observe that the

agreements which were entered into by the Petitioner society with the M/s

Bhuyan Projects Private Ltd., the power of Attorneys, building permission

application were not brought on record by the Petitioner society for the

reasons best known. Furthermore, if by way of the additional affidavit filed by

the Respondent No.1, the Power of Attorneys as well as the application for

building permission were not brought on record, this Court would have been in

complete darkness as regards these documents.

30. While the writ petition was pending, another very vital development had

taken place. An application was filed by the Petitioner society before this Court

for deleting the name of the erstwhile Secretary Shri Paresh Chandra Haloi and

allowing the Petitioner society to be represented by its Chairman Shri Ripun

Bhuyan. It is significant to note that this Chairman i.e. Mr. Ripun Bhuyan is the

Director of M/S Bhuyan Projects Pvt. Ltd against whom the suit was filed for

cancellation of various deeds. The fate of the said suit need not therefore be

further presumed. This application was filed on 16.08.2021 and was registered

and numbered as I.A.(Civil) No.1525/2021. In the said application, an

additional affidavit was filed by the petitioner bringing on record the copy of

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the proceedings of the Annual General Meeting dated 28.09.2020 and the

Approval Letter dated 09.11.2020 as Annexure I and II respectively. In the

minutes of the Annual General Meeting enclosed as Annexure-I to the said

additional affidavit, it reveals from resolution No.5 that the then Secretary of

the Petitioner society who had initially filed the writ petition was dismissed

from the post of the Secretary and Member of the Board of Directors of the

Cooperative Society on the ground of committing financial anomalies.

Resolution 9 of the said Meeting is very pertinent for the adjudication of the

writ petition which is quoted herein below:

“Resolution 9: The house entrusts the President and Secretary to file case in

Hon’ble Gauhati High Court for recovering the land of the Cooperative Society

measuring 3 Bighas from Government and decides that if the land is re-allotted in the

name of the Cooperative Society, it will be sold and the loan of the Cooperative

Society will be repaid with the sale proceed. “

31. From the above resolution, it would be seen that the Petitioner society

now proposes to sell the land which is the subject matter of the dispute in the

instant proceedings. The application for substitution was allowed vide an order

dated 16.02.2022 passed by this Court and accordingly, the records were duly

corrected.

32. In the backdrop of the above pleadings, let this Court take note of the

respective submissions of the learned counsels for the parties.

33. Mr. D. Das, the learned Senior counsel appearing on behalf of the

Petitioner submitted that a settlement was made in favour of the Petitioner

society on the orders of the Governor dated 13.09.2005. The conditions

stipulated in the said settlement order were that the Petitioner society was

Page No.# 28/50

required to establish a modernized factory etc. subject to fulfillment of the

NGO status of the organization and payment of 30% of the land value as

premium. The Petitioner society admittedly enjoys an NGO status and had

duly paid the premium of Rs.45,00,000/-. In pursuance to the payment of the

said premium by the Petitioner society, the land records were duly corrected on

05.10.2005 and a periodic patta was issued on 06.10.2005 for a period of 20

years w.e.f. 06.10.2005 to 06.10.2025. He further submitted that once the

settlement has been made and the periodic patta was issued, the recourse

taken by the Respondent Authorities to cancel settlement is on the face of it

amounts to arbitrariness and malicious actions on the part of the Respondent

Authorities to deprive the Petitioner of its constitutional right under Article

300A of the Constitution. He further submitted that it is an established

principle of law as settled by the Division Bench of this Court in its judgment

rendered in the case of The State of Assam Vs. Sifat Ali and Others reported in

AIR 1967 Assam & Ngld 3 (1965 SCC OnLine Gau 28) wherein it was duly

observed that though the settlement may be cancelled under Rule 26 by the

Commissioner but the Commissioner had no right to cancel the periodic patta

issued in pursuance to the order of settlement. In that regard, the learned

Senior counsel referred to Paragraph Nos. 7, 8 and 9 of the said judgment and

submitted that as the periodic patta has been issued in the name of the

Petitioner, a right accrues upon the Petitioner over the land and it cannot be

cancelled under the provisions of Assam Land and Revenue Regulation 1886

(for short “the Regulation”). The learned Senior counsel further submitted that

the judgment of the Division Bench in the case of Sifat Ali (supra) was

approved by the Full Bench of this Court in the case of Jiban Chandra Deka and

Others Vs. The State of Assam and Others reported in (1994) 1 GLR 268.

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Referring to Section 11 of the Regulation, the learned Senior counsel submitted

that the rights of the Petitioner who is now a settlement holder has to be

regulated in terms with the patta.

34. The learned Senior counsel further drew the attention of this Court to the

Patta which have been issued to the Petitioner (enclosed as Annexure-1 to the

Affidavit-in-Reply filed by the Petitioner) and submitted that the Petitioner now

is being regulated by the terms in the said patta and the Respondent

Authorities cannot cancel this patta in the manner sought to be done. He

further submitted that so long the patta remains, a constitutional right accrues

upon the Petitioner over the land in question in respect of which the patta has

been issued and the same can only be taken away by authority of law that

would be either by way of outright purchase or by acquisition in accordance

with law. The learned Senior counsel further submitted that the two reasons

for which the impugned order was passed are irrelevant for the purpose of

cancellation of the settlement inasmuch as the Petitioner society till date have

not constructed any multistoried residential or commercial building and merely

applying for the same, cannot be held to be a violation of the settlement’s

prescription.

35. The learned Senior counsel appearing on behalf of the Petitioner further

submitted that though the facts may not inspire the confidence of this Court

but the Petitioner’s right which stood fructified on account of issuance of the

settlement order as well as the issuance of the patta regulating the settlement

requires to be maintained by setting aside the impugned order and passing

appropriate directions to the effect that the Petitioner cannot use the said land

for any other purpose other than for setting up the modernized factory and

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also for the purpose of forwarding its objects for which the settlement was

applied for.

36. On the other hand, Mr. R. Borpujari, the learned Standing counsel

appearing on behalf of the Revenue Department submitted that the impugned

order so passed calls for no interference by this Court under Article 226 of the

Constitution on the ground that this Court while exercising the jurisdiction

under Article 226 for issuance of a writ in the nature of certiorari would not

interfere with the order unless the order is palpably erroneous or without

jurisdiction. He submitted that there has to be an error of law which is

apparent on the records which would justify interference. In that regard, the

learned Standing counsel referred to the judgment of the Supreme Court in the

case of Central Council for Research in Ayurvedic Sciences and Another Vs.

Bikartan Das and Others reported in (2023) SCC Online SC 996.

37. The learned Standing counsel submitted that the facts in the present

case would clearly show that the Petitioner society had played fraud upon the

Government by deceiving the Government and thereby obtained the settlement

order and consequently patta was issued. The actions of the Petitioner would

clearly show that at no point of time, they were at all interested in

establishment of a training centre, residential accommodation for poor, widow,

destitute women for which the application was submitted on 07.04.2005 citing

these reasons. On the other hand, the Secretary of the Petitioner society right

from the time, the Petitioner was granted settlement, have been taking steps

for constructions of multistoried residential and commercial building in

connivance with M/S Bhuyan Projects Private Ltd. The Registered Irrevocable

Power of Attorneys which have been brought on record by the Respondents

Page No.# 31/50

clearly shows that the Petitioner society had granted all the rights to the M/S

Bhuyan Projects Private Ltd. by appointing them as Attorneys not only for

construction but also for selling, leasing out the residential as well as the

commercial flats including the factory to be set up. He submitted that as the

Respondent Authorities were hoodwinked and resultantly the settlement order

was passed, the entire settlement so granted stands vitiated by fraud. The

learned Standing counsel further submitted that it is a well settled principle of

law that fraud vitiates all proceedings and consequently, the settlement order

as well as the patta which have been issued in favour of the Petitioner stands

vitiated. He therefore submitted that the impugned order so passed requires

no interference from this Court.

38. The learned Standing counsel further submitted that the State

Government who have granted the settlement cannot be said to be powerless

if at a later stage it comes to light that the settlement so granted was on

account of fraud and misrepresentation which is apparent from the facts of the

instant case. He submitted that if the State Government has the power to

grant settlement, the State Government equally has the power to revoke or

cancel the settlement in view of the provisions of Section 23 of the Assam

General Clauses Act, 1915 which is pari materia to Section 21 of the General

Clauses Act, 1897. He therefore submitted that the judgments in the case of

Sifat Ali (supra) and Jiban Chandra Deka (supra) have no application to the

present case.

39. The learned Standing counsel further submitted that the instant writ

petition should be discussed on the ground of suppression of material facts and

for misleading this Court. He submitted that proceedings under Article 226 of

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the Constitution of India are equitable proceedings for which a person

approaching the Court has to place all material facts. However, it would be

seen that the Petitioner failed to do so and also suppressed material facts.

40. On the basis of the above pleadings and the contentions submitted by

the learned counsels for the parties, the following points for determination

arises for consideration.

(i) Whether the Petitioner is guilty of suppression of material facts as well as

misleading this Court?

(ii) Whether any right has been created in favour of the Petitioner society on

the basis of the settlement being made and the consequent issuance of the

patta in favour of the Petitioner society?

(iii) Whether the Respondent Authorities had the authority to pass the

impugned order and if so, whether the impugned order was justified in the

facts of the instant case?

(iv) Whether the writ petition is entitled to any relief in the facts and

circumstances of the instant case?

41. This Court in detail has narrated the facts supra. From the said facts as

already narrated, it would be seen that the Petitioner society is a society

registered under the provisions of Assam Cooperative Societies Act, 1949. The

byelaws of the society as well as the certificate of registration of the Petitioner

society for the reasons best known were not placed by the Petitioner. However,

the certificate of registration is enclosed as Annexure-II to the affidavit-in-

opposition filed by the Respondent No.3 on 31.07.2014. From the said

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certificate of registration, it is clear that the area of operation of the Petitioner

society was Salbari, Satgaon and Noonmati.

42. It is relevant to mention that the Petitioner submitted its initial

application on 07.07.2004 to the District Collector for allotment and settlement

of land and subsequently, it was followed by another communication dated

07.04.2005. Interestingly, in the application dated 07.04.2005, the Petitioner

society had clearly identified the land wherein the Petitioner society was

seeking settlement. However, the same was outside its area of operation as

could be seen from its certificate of registration. Thereupon, the record reveals

that on 13.09.2005, settlement was granted in favour of the Petitioner of a plot

of land measuring 3 Bighas covered by Dag No.1968 of Sahar Guwahati Part II

i.e. the land in question specifically for establishment of a modernized factory

etc. subject to fulfillment of NGO status of the organization and payment of

30% of the land value as premium. The Petitioner though submitted the entire

premium in five installments which were duly accepted by the Respondent

Authorities and thereupon, the Patta was duly issued but till 12.10.2011, the

Petitioner did not take any steps for the purpose of amending its byelaws and

changing its area of operation. It is further seen from a perusal of Annexure-35

to the writ petition that on 09.11.2011, the Assistant Registrar of Cooperative

Society was informed about the Resolution dated 12.10.2011 in respect to the

extension of territorial limits. It is however not known even after passage of a

decade as to whether any follow up steps were taken thereafter. The records

further reveals that the Petitioner woke up to change the area of operation

only just prior to the order dated 29.11.2012 after submission of its reply on

08.02.2011.

Page No.# 34/50

43. This Court further finds it very pertinent to note that in the

representation dated 07.04.2005 enclosed as Annexure-II to the writ petition, it

was specifically mentioned that the Petitioner society was engaged in providing

livelihood to the unemployed youth, widows, and destitute women of various

parts of Assam to impart training and to undertake activities for manufacture

and sale of bamboo and cane products and for that purpose there was lack of

training centre, residence, etc. and as such the application was filed specifically

identifying the land in question for settlement. The settlement order dated

13.09.2005 further makes it clear that the settlement was made in favour of

the Petitioner society for establishment of a modernized factory etc. subject to

the NGO status of the organization and payment of 30% of the land value as

premium. It is very pertinent to mention that the land in question is situated in

the heart of the city of Guwahati. The price of such land then and even today

is beyond imagination. However, as the settlement was given for a very noble

cause i.e. for setting up a training centre and to construct permanent sheds for

the benefit of the handicraft artisans, destitute women, widows and

unemployed youths, the usual premium of the said land was reduced by 70%

and at a throw away price, the premium was fixed.

44. It is also significant to note that the Respondent Authorities even after

having notice of the order dated 28.02.2001 in WP(C) PIL No.08/2001 had

settled the said land in favour of the Petitioner. It is also pertinent to observe

that the learned Division Bench of this Court in its judgment dated 27.07.2007

did not consider the said aspect but interfered with the order of cancellation

dated 30.08.2006 on the ground that the order of cancellation was passed

without issuing any notice and giving an opportunity of hearing to the

Petitioner.

Page No.# 35/50

45. The record further reveals and more particularly from Annexure-19 and

20 of the writ petition that the Petitioner society applied for permission for

construction of the building. Specific reference was given to the date of the

application to be on 29.07.2010 and to Misc. Receipt Serial No.809629 in Book

No.B-8097. This aspect of the matter is very pertinent for adjudicating the

instant writ petition taking into account that in the show cause notice dated

18.01.2011, the Petitioner was specifically asked to show cause as to why the

Petitioner society has not raised construction in spite of so many years. This

Court finds it pertinent to observe that the application so filed and the receipt

so issued were material documents which ought to have been enclosed by the

Petitioner. However, the Petitioner neither enclosed those documents nor

stated who actually applied and what was the content of the application

seeking permission. On the other hand in paragraph 3(ii) and 3(iii) of the reply

dated 28.12.2012 and paragraph 13 of the affidavit-in-reply filed by the

Petitioner, a completely contrary picture to the application filed seeking

permission to construct is projected.

46. The question therefore arises as to why the Petitioner did not enclose the

application so filed on 29.07.2010 as well as the receipt. The reason that any

prudent person would reasonably arrive at is that if the said application was

enclosed by the Petitioner, it would show that the application was not filed by

the Petitioner society rather it was filed by Shri Ripun Bhuyan for constructions

of a multistoried residential and commercial complex. Not only that, another

very vital aspect would have come to light that the Petitioner had empowered

the said Shri Ripun Bhuyan as its Attorney. Consequently, questions would arise

as to what powers have been conferred upon the Attorney. In addition to the

above, it is also very pertinent to mention that it was only at the final stages of

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the pleadings filed by the Petitioner i.e. in the year 2018 that the Petitioner

duly admitted entering into an agreement for development of land with M/S

Bhuyan Projects Pvt. Ltd. as well as executing irrevocable General Power of

Attorneys in favour of M/S Bhuyan Projects Pvt. Ltd. This Court fails to

understand that when the crux of the issue relates to the Petitioner entering

into the agreement for construction of multistoried building with M/S Bhuyan

Projects Pvt. Ltd., why the Petitioner did not place before this Court the

agreement entered into with M/S Bhuyan Projects Pvt. Ltd. and there was no

whisper in the writ petition about the same. Further to that, this Court is

perturbed by the action of the Petitioner in not disclosing at the first place

about the execution of the Power of Attorneys.

47. In this regard, this Court finds it very pertinent to refer to the recent

judgment of the Supreme Court in the case of K. Jayaram and Others Vs.

Bangalore Development Authority and Others reported in (2022) 12 SCC 815

wherein the Supreme Court categorically observed that it is imperative that the

Petitioner approaching the Writ Court must come with clean hands and put

forward all facts before the Court without concealing or suppressing anything.

The law was discussed by the Supreme Court in paragraph Nos. 10 to 13 is

quoted herein under:

“10. It is well-settled that the jurisdiction exercised by the High Court under Article

226 of the Constitution of India is extraordinary, equitable and discretionary and it is

imperative that the petitioner approaching the writ court must come with clean

hands and put forward all facts before the court without concealing or suppressing

anything. A litigant is bound to state all facts which are relevant to the litigation. If

he withholds some vital or relevant material in order to gain advantage over the

other side then he would be guilty of playing fraud with the court as well as with the

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opposite parties which cannot be countenanced.

11. This Court in Prestige Lights Ltd. v. SBI has held that a prerogative remedy is

not available as a matter of course. In exercising extraordinary power, a writ court

would indeed bear in mind the conduct of the party which is invoking such

jurisdiction. If the applicant does not disclose full facts or suppresses relevant

materials or is otherwise guilty of misleading the court, the court may dismiss the

action without adjudicating the matter. It was held thus : (SCC p. 461, para 33)

“33. It is thus clear that though the appellant Company had approached

the High Court under Article 226 of the Constitution, it had not candidly

stated all the facts to the Court. The High Court is exercising discretionary

and extraordinary jurisdiction under Article 226 of the Constitution. Over

and above, a court of law is also a court of equity. It is, therefore, of

utmost necessity that when a party approaches a High Court, he must

place all the facts before the Court without any reservation. If there is

suppression of material facts on the part of the applicant or twisted facts

have been placed before the Court, the writ court may refuse to entertain

the petition and dismiss it without entering into merits of the matter.”

12. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., this Court

has reiterated that the writ remedy is an equitable one and a person approaching a

superior court must come with a pair of clean hands. Such person should not

suppress any material fact but also should not take recourse to legal proceedings

over and over again which amounts to abuse of the process of law.

13. In K.D. Sharma v. SAIL, it was held thus : (SCC pp. 492-93, paras 34-39)

“34. The jurisdiction of the Supreme Court under Article 32 and of the

High Court under Article 226 of the Constitution is extraordinary, equitable

and discretionary. Prerogative writs mentioned therein are issued for

doing substantial justice. It is, therefore, of utmost necessity that the

petitioner approaching the writ court must come with clean hands, put

forward all the facts before the court without concealing or suppressing

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anything and seek an appropriate relief. If there is no candid disclosure of

relevant and material facts or the petitioner is guilty of misleading the

court, his petition may be dismissed at the threshold without considering

the merits of the claim.

35. The underlying object has been succinctly stated by Scrutton, L.J., in

the leading case of R. v. Kensington Income Tax Commissioners in the

following words : (KB p. 514)

‘… it has been for many years the rule of the court, and one

which it is of the greatest importance to maintain, that when an applicant

comes to the court to obtain relief on an ex parte statement he should

make a full and fair disclosure of all the material facts—it says facts, not

law. He must not misstate the law if he can help it—the court is supposed

to know the law. But it knows nothing about the facts, and the applicant

must state fully and fairly the facts; and the penalty by which the court

enforces that obligation is that if it finds out that the facts have not been

fully and fairly stated to it, the court will set aside any action which it has

taken on the faith of the imperfect statement.’

36. A prerogative remedy is not a matter of course. While exercising

extraordinary power a writ court would certainly bear in mind the conduct

of the party who invokes the jurisdiction of the court. If the applicant

makes a false statement or suppresses material fact or attempts to

mislead the court, the court may dismiss the action on that ground alone

and may refuse to enter into the merits of the case by stating, ‘We will

not listen to your application because of what you have done.’ The rule

has been evolved in the larger public interest to deter unscrupulous

litigants from abusing the process of court by deceiving it.

37. In Kensington Income Tax Commissioners, Viscount Reading, C.J.

observed : (KB pp. 495-96)

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‘… Where an ex parte application has been made to this Court for

a rule nisi or other process, if the Court comes to the conclusion that the

affidavit in support of the application was not candid and did not fairly

state the facts, but stated them in such a way as to mislead the Court as

to the true facts, the Court ought, for its own protection and to prevent

an abuse of its process, to refuse to proceed any further with the

examination of the merits. This is a power inherent in the Court, but one

which should only be used in cases which bring conviction to the mind of

the Court that it has been deceived. Before coming to this conclusion a

careful examination will be made of the facts as they are and as they

have been stated in the applicant’s affidavit, and everything will be heard

that can be urged to influence the view of the Court when it reads the

affidavit and knows the true facts. But if the result of this examination

and hearing is to leave no doubt that the Court has been deceived, then

it will refuse to hear anything further from the applicant in a proceeding

which has only been set in motion by means of a misleading affidavit.’

38. The above principles have been accepted in our legal system also. As

per settled law, the party who invokes the extraordinary jurisdiction of

this Court under Article 32 or of a High Court under Article 226 of the

Constitution is supposed to be truthful, frank and open. He must disclose

all material facts without any reservation even if they are against him. He

cannot be allowed to play “hide and seek” or to “pick and choose” the

facts he likes to disclose and to suppress (keep back) or not to disclose

(conceal) other facts. The very basis of the writ jurisdiction rests in

disclosure of true and complete (correct) facts. If material facts are

suppressed or distorted, the very functioning of writ courts and exercise

would become impossible. The petitioner must disclose all the facts

having a bearing on the relief sought without any qualification. This is

because “the court knows law but not facts”.

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39. If the primary object as highlighted in Kensington Income Tax

Commissioners is kept in mind, an applicant who does not come with

candid facts and “clean breast” cannot hold a writ of the court with

“soiled hands”. Suppression or concealment of material facts is not an

advocacy. It is a jugglery, manipulation, manoeuvring or

misrepresentation, which has no place in equitable and prerogative

jurisdiction. If the applicant does not disclose all the material facts fairly

and truly but states them in a distorted manner and misleads the court,

the court has inherent power in order to protect itself and to prevent an

abuse of its process to discharge the rule nisi and refuse to proceed

further with the examination of the case on merits. If the court does not

reject the petition on that ground, the court would be failing in its duty.

In fact, such an applicant requires to be dealt with for contempt of court

for abusing the process of the court.”

(emphasis in original)

48. In the opinion of this Court, if the above law declared by the Supreme

Court is applied to the facts of the instant case, it would be seen that the

Petitioner is guilty of not approaching this Court with clean hands. The act(s)

on the part of the writ petitioner as could be seen from the pleadings would

also show that the Petitioner is guilty of making false statements on oath with

impunity as would be seen in paragraph No.13 of the affidavit-in-reply filed by

the Petitioner on 03.03.2017. The above discussion clearly shows that the

Petitioner is guilty of misleading, misrepresentation, suppression of material

facts as well as concealment of material facts. On these ground alone, this

Court would be justified in dismissing the writ petition even without going into

the merits.

49. Be that as it may, this Court having heard the learned counsels on merits

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also and having framed various points of determination deems it proper to deal

with the other points of determination. There is no quarrel with the proposition

that a settlement so granted confers right upon the settlement holder over the

land and the issuance of patta regulates the said settlement. The law declared

by the Full Bench of this Court in the case of Jiban Chandra Deka (supra)

categorically shows that a settlement as well as patta can be cancelled if it is

granted in contravention of the Settlement Rules after giving due opportunity

to the lease holder of being heard. It is also well established that when a

settlement is being granted and the consequential patta is issued, the rights

under Article 300A of the Constitution of India stands fructified and the same

cannot be taken away without the authority of law. Conversely, it is the opinion

of this Court that the person is entitled to protection of his rights on his/her

property if such property is obtained/settled in accordance with law. In other

words, if the rights upon the property accrue in accordance with law, then the

person would be entitled to the rights under Article 300A of the Constitution

else not. In the said perspective, if this Court takes note of the facts involved,

it would show that the Petitioner society applied for settlement of the land in

question representing before the State Authorities that if the settlement of the

land in question is granted to them, they would construct a training centre as

well as residential accommodation for poor, widows and destitute women in

order to make them self-sufficient by imparting training in cane and bamboo

industry. Paragraph No.2 of the writ petition clearly states as to why the

Petitioner society applied for the settlement of the land in question. On the

other hand, the facts enumerated hereinabove would clearly show that the

Petitioner society had never any intention of setting up any training centre or

for that matter, residential accommodation for poor, widow and destitute

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women. By misrepresenting, the Petitioner society was able to deceive the

Government in granting the land settlement in its favour that too at the heart

of the city of Guwahati with 70% discount on the premium. The question

therefore arises as to whether the same amounts to fraud being played upon

the State Government for obtaining the settlement. At this stage, this Court

finds it pertinent to refer to the judgment of the Supreme Court in the case of

Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and

Others reported in (2021) 13 SCC 587 and more particularly paragraph Nos. 20,

21, 22 and 23 which are quoted hereinbelow:

“20. As to when it would be a case of fraud played on the State Government,

would depend on whether it was an attempt by the appellant to present facts, so as

to misrepresent the State. The fraud can either be actual or constructive fraud. The

actual fraud is a concealment or false representation through an intentional or

reckless statement or conduct that injures another who relies on it in acting, whereas

the constructive fraud is unintentional deception or misrepresentation that causes

injury to another. The actual or constructive fraud as predicated in Black’s Law

Dictionary, 11

th

Edn. is as follows:

“actual fraud. A concealment or false representation through an intentional or

reckless statement or conduct that injures another who relies on it in acting.

— Also termed fraud in fact; positive fraud; moral fraud.

* ** *

constructive fraud. 1. Unintentional deception or misrepresentation that

causes injury to another. 2. Fraud in law. Fraud that is presumed under the

circumstances, without regard to intent, usu. through statutorily created

inference. Fraud may be presumed, for example, when a debtor transfers

assets and thereby impairs creditors’ efforts to collect sums due. This type of

fraud arises by operation of law, from conduct that, if sanctioned, would

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(either in the particular circumstance or in common experience) secure an

unconscionable advantage, irrespective of evidence of an actual intent to

defraud. - Also termed legal fraud; fraud in contemplation of law; equitable

fraud; fraud in equity.”

21. It may be also useful to advert to the meaning of “actionable fraud” in the

Sixth Edn. of the same Law dictionary, as follows:

“Actionable fraud. Deception practiced in order to induce another to part with

property or surrender some legal right. A false representation made with an

intention to deceive; such may be committed by stating what is known to be

false or by professing knowledge of the truth of a statement which is false, but

in either case, the essential ingredient is a falsehood uttered with intent to

deceive. "To constitute “actionable fraud.” it must appear that defendant made

a material representation, that it was false; that when he made it he knew it

was false, or made it recklessly without any knowledge of its truth and as a

positive assertion; that he made it with intention that it should be acted on by

plaintiff; that plaintiff acted in reliance on it; and that plaintiff thereby suffered

injury..... Essential elements are representation, falsity, scienter, deception,

reliance and injury.”

22. Indeed, in the present case, the State Government in its order dated 5-9-

2019, has adverted to several aspects including the assessment report of the MCI

and inspection report of the Committee. The substance of the reason weighed with

the State Government, as can be culled out from the stated order, is that the

appellant had failed to fulfil the commitment given to the State at the relevant time

— of providing minimum infrastructure and fulfilment of the norms of MCI and

appointing the staff as per norms of MCI — for all this period and was incapable in

doing so despite repeated opportunities given since 2016 by the MCI. Further, even

though the appellant was granted conditional letter of permission (LoP) for Academic

Year 2016-2017, it had failed to remove the deficiencies, as a result of which not

even the first batch could pursue or complete the medical course in the appellant

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College. The students concerned kept on making earnest representation to the State

authorities to rescue them from the hiatus situation in which they were trapped.

Indisputably, the students concerned (admitted in the first batch of 2016-2017) were

eventually reallocated to another recognised college after November 2019, as no

renewal of permission to the appellant College was forthcoming for three successive

academic sessions i.e. 2017-2018, 2018-2019 and 2019-2020.

23. Such circumstances reckoned by the State, by no stretch of imagination, can

be disregarded as irrelevant, intangible or imaginary. Rather, the totality of the

situation reinforces the fact that the appellant College had failed and neglected to

discharge its commitment given to the State at the relevant time; and is incapable of

fulfilling the minimum norms specified by the MCI for starting and running a medical

college. It had thus misrepresented the State Government at the relevant time by

giving a sanguine hope of ensuring installation of minimum infrastructure and setting

up of a robust organisational structure for running of a medical college “in a time-

bound programme”. Therefore, it can be safely deduced that it is a case of

constructive fraud played upon the State Government. For, even after lapse of over

five years from the date of issuance of essentiality certificate (28-8-2014), the

appellant College is not in a position to secure the requisite permission(s) from the

MCI and the Central Government to run a medical college as per the scheme.”

50. The above proposition of law if applied to the facts of the instant case, it

would be seen that the Petitioner society had never the intention of setting up

the training centres and the residential homes for the poor, widow and

destitute women and for the purpose of imparting any training on cane and

bamboo industry. The Irrevocable General Power of Attorney which have been

enclosed to the additional affidavit filed by the Respondent No.1 categorically

shows that the Petitioner society permitted its Attorney holder to sell/lease out

not only the residential and commercial building but also the training centre. In

fact, all the rights in respect to the land in question was given to the Attorney

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holders. The act on the part of the Petitioners not to bring on record the

agreement for development entered into with M/S Bhuyan Projects Private Ltd.

also raises a presumption that if the said agreement for development would

have been placed before this Court, it would have further shown the illegality

so committed by the Petitioner society. The action on the part of the Petitioner

society in the opinion of this Court constitutes an actionable fraud inasmuch as

the Petitioner made representation which were false and also knew that it

would never be acted upon and made it recklessly in order to take the benefit

of settlement from the State Authorities that too at the 70% discount and then

use it for commercial purposes. Not only that, the Resolution of the General

Meeting of the Petitioner held on 28.09.2020 also shows that the Petitioner

would be transferring the land in question by way of sale upon the writ petition

decided in its favour. It is well established that fraud vitiates all proceedings

and as in the instant case, the actions of the Petitioner amounts to fraud as

well as misrepresentation which induced the State Government to grant the

settlement, it is the opinion of this Court that the settlement so granted was

not in accordance with law and as such, no right had accrued upon the

Petitioner under Article 300A of the Constitution in respect to the land in

question. The above analysis therefore decides the second point of

determination.

51. The third point for determination is as to whether the authority

concerned had the jurisdiction to pass the impugned order and whether the

impugned order was justified in the facts of the present case. The above

discussions already made clearly shows that the Petitioner herein had obtained

the settlement from the Respondent Authorities by playing fraud and by

misrepresenting the State Government and as such, this Court had

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categorically held that there was no acquisition of right under Article 300A of

the Constitution. In order to decide as to whether the Respondent Authorities

had the jurisdiction to cancel the said settlement, it is the opinion of this Court

that Section 23 of the Assam General Clauses Act, 1915 which is pari materia

to Section 21 of the General Clauses Act, 1897 would be applicable. It is a trite

principle of law that if a power is conferred to create, it includes the power to

destroy and also the power to alter what is created. This is the principle upon

which Section 23 of the Assam General Clauses Act, 1915 is based. In that

regard, this Court finds it relevant to refer to the judgment of the Supreme

Court in the case of Shree Sidhbali Steels Ltd. and others Vs. State of Uttar

Pradesh and Others reported in (2011) 3 SCC 193 and more particularly to

Paragraph Nos. 38 and 39 which are reproduced herein under:

“38. Section 21 is based on the principle that power to create includes the power

to destroy and also the power to alter what is created. Section 21, amongst other

things, specifically deals with power to add to, amend, vary or rescind the

notifications. The power to rescind a notification is inherent in the power to issue the

notification without any limitations or conditions. Section 21 embodies a rule of

construction. The nature and extent of its application must be governed by the

relevant statute which confers the power to issue the notification, etc. However,

there is no manner of doubt that the exercise of power to make subordinate

legislation includes the power to rescind the same. This is made clear by Section 21.

On that analogy an administrative decision is revocable while a judicial decision is not

revocable except in special circumstances. Exercise of power of a subordinate

legislation will be prospective and cannot be retrospective unless the statute

authorizes such an exercise expressly or by necessary implication.

39. The principle laid down in Section 21 is of general application. The power to

rescind mentioned in Section 21 is without limitations or conditions. It is not a power

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so limited as to be exercised only once. The power can be exercised from time to

time having regard to the exigency of time. When by a Central Act power is given to

the State Government to give some relief by way of concession and/or rebate to

newly-established industrial units by a notification, the same can be curtailed and/or

withdrawn by issuing another notification under the same provision and such exercise

of power cannot be faulted on the ground of promissory estoppel.”

52. In view of the above proposition and the same being applied to the facts

of the instant case, it would be seen that as the Government had the power to

grant the settlement, the Government also had the power to cancel the same if

the settlement obtained is not in accordance with law.

53. In the backdrop of the above proposition, the question now arises as to

whether the action of the Respondent Authorities in passing the impugned

order was justified. This Court cannot be unmindful of the fact that the relief

which have been sought for is for grant of a writ in the nature of certiorari. The

Supreme Court in a recent judgment in the case of Central Council for Research

in Ayurvedic Sciences and Another (supra) had categorically held as to when a

writ in the nature of certiorari is required to be issued by the

Court. Paragraph Nos. 50, 51 and 52 of the said judgment are quoted herein

under:

“50. Before we close this matter, we would like to observe something

important in the aforesaid context:

Two cardinal principles of law governing exercise of

extraordinary jurisdiction under Article 226 of the Constitution

more particularly when it comes to issue of writ of certiorari.

51. The first cardinal principle of law that governs the exercise of extraordinary

jurisdiction under Article 226 of the Constitution, more particularly when it comes

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to the issue of a writ of certiorari is that in granting such a writ, the High Court

does not exercise the powers of Appellate Tribunal. It does not review or reweigh

the evidence upon which the determination of the inferior tribunal purports to be

based. It demolishes the order which it considers to be without jurisdiction or

palpably erroneous but does not substitute its own views for those of the inferior

tribunal. The writ of certiorari can be issued if an error of law is apparent on the

face of the record. A writ of certiorari, being a high prerogative writ, should not

be issued on mere asking.

52. The second cardinal principle of exercise of extraordinary jurisdiction under

Article 226 of the Constitution is that in a given case, even if some action or

order challenged in the writ petition is found to be illegal and invalid, the High

Court while exercising its extraordinary jurisdiction thereunder can refuse to

upset it with a view to doing substantial justice between the parties. Article 226

of the Constitution grants an extraordinary remedy, which is essentially

discretionary, although founded on legal injury. It is perfectly open for the writ

court, exercising this flexible power to pass such orders as public interest

dictates & equity projects. The legal formulations cannot be enforced divorced

from the realities of the fact situation of the case. While administering law, it is

to be tempered with equity and if the equitable situation demands after setting

right the legal formulations, not to take it to the logical end, the High Court

would be failing in its duty if it does not notice equitable consideration and

mould the final order in exercise of its extraordinary jurisdiction. Any other

approach would render the High Court a normal court of appeal which it is not.”

54. In the instant facts, this Court have already held that the Petitioner

society had obtained the settlement by playing fraud and misrepresentation

upon the Respondent State and under such circumstances, this Court had also

held that the settlement which was granted was not in accordance with law

and consequently, no right under Article 300A of the Constitution therefore

accrued upon the Petitioner. This Court had also held supra that the State

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Government was within its jurisdiction to cancel the settlement in terms with

Section 23 of the Assam General Clauses Act, 1915. This Court is also of the

opinion that there exists no error of law apparent on the face of the records.

Further to that, it is also the opinion of this Court that the Respondents in the

present facts were justified in passing the impugned order. Under such

circumstances, the question of issuance of a writ in the nature of certiorari

does not arise.

55. This Court also finds it pertinent to deal with the submission of Mr. D.

Das, the learned Senior counsel appearing on behalf of the Petitioner that this

Court ought to set aside the impugned order and pass appropriate directions

so that the Petitioner can only use the land settled in its favour for which it was

applied. The said submission in the opinion of this Court is misconceived

inasmuch as this Court had already held that no right accrued upon the

Petitioner in respect to the land in question as the settlement was not granted

in accordance with law and consequently, this Court found no reason to

interfere with the impugned order. Under such circumstances, any direction so

passed, as sought for by the learned Senior counsel would not only be contrary

to the findings observed above but would amount to interfering with the

impugned order which neither lacks jurisdiction nor suffers from an error of law

apparent on the records.

56. In view of the above discussions, the last point for determination is to be

decided is as to what relief(s) the Petitioner herein would be entitled to. The

Petitioner is not entitled for issuance of writ in the nature of certiorari for

setting aside and quashing the impugned order.

57. Be that as it may, this Court duly takes note of the fact that the Petitioner

Order downloaded on 24-12-2024 05:55:16 PMPage No.# 50/50

society had paid an amount of Rs.45,00,000/- to the Respondent State as a

premium for the land in question. It is the opinion of this Court that the

Petitioner society would be entitled to the refund of the said amount as the

settlement had been cancelled.

58. Accordingly, this Court therefore directs the Respondent State and more

particularly the Commissioner and Secretary, Revenue and Disaster

Management Department of the Government of Assam as well as the Deputy

Commissioner, Kamrup (M) to take appropriate steps for release and payment

of the amount of Rs.45,00,000/- to the Petitioner within a period of 4 (four)

months from the date of the instant judgment. The Petitioner is directed to

furnish its bank details to the Deputy Commissioner, Kamrup (M) within 7

(seven) days from today. It is made clear that if within the said period of 4

(four) months subject to furnishing the bank details, the said amount so

directed is not paid to the Petitioner society, interest @7.5% per annum shall

accrue on the said amount from the date of the instant judgment.

59. The instant writ petition stands dismissed except what is observed in

paragraph No.58 hereinabove.

JUDGE

Comparing Assistant