BTC Secretary lacked jurisdiction to hear appeals against Settlement Officer’s orders, Gauhati High Court rules

The petitioners and the private respondents claimed inheritance over three parcels of land originally belonging to their deceased father, including 1 bigha 2 kathas 11 lechas under Dag No. 16/69, Patta No. 139/195, situated at Khanabari Araiani Part II, Bagribari Revenue Circle.

Disputes arose concerning the land, and the private respondents initiated Misc. Case No. 3/2022 before the Assistant Settlement Officer seeking cancellation of the petitioners’ names from the revenue records.

The Settlement Officer, in Misc. Case No. 2/2022, declined to cancel the petitioners’ names, observing that the competing sale deed and gift deed could not be conclusively treated as forged and that both parties were recorded pattadars.

The private respondents thereafter filed Mutation Appeal No. BTC/LR-688/2022 before the Secretary, Land Revenue and Disaster Management Department, BTC.

Whether the Secretary, Land Revenue and Disaster Management Department, BTC, had jurisdiction to entertain an appeal against an order passed by the Settlement Officer under the Assam Land and Revenue Regulation, 1886.

Whether the Notification dated 30 December 2016 issued by the Principal Secretary, BTC, validly vested appellate powers over orders of the Settlement Officer in the departmental Secretary of the BTC.

Whether the Notification dated 30 December 2016 constituted a valid “public notification” under Paragraph 12(1)(a) of the Sixth Schedule to the Constitution.

Whether the private respondents should be permitted to pursue an appeal before the Assam Board of Revenue against the Settlement Officer’s order.

The Court applied Section 135 of the Assam Land and Revenue Regulation, 1886, under which a Settlement Officer exercises specified powers of a Deputy Commissioner within the area under settlement, read with Rule 4 of the Settlement Rules, which confers on the Settlement Officer the powers of a Deputy Commissioner subject to the rule’s limitations.

Section 147(a) of the Regulation provides that appeals from original or appellate orders of a Deputy Commissioner, Settlement Officer or Survey Officer lie to the Assam Board of Revenue.

The Court further applied Paragraph 3B(3) of the Sixth Schedule, under which laws made by the BTC on transferred subjects require the Governor’s assent, and Paragraph 12(1)(a), which permits the BTC, by public notification, to apply State laws to BTC areas with specified exceptions or modifications.

The Court held that the power to modify the application of an existing law under Paragraph 12(1)(a) is distinct from the legislative power under Paragraph 3B, and that statutory or judicial powers cannot ordinarily be vested in an authority through an executive instruction or notification unless authorised by valid legislation.

Under Section 147(a), an appeal from an order of the Settlement Officer lies to the Assam Board of Revenue, since the Settlement Officer exercises statutory powers equivalent to those of a Deputy Commissioner in the relevant settlement area.

The BTC relied on its Notification dated 30 December 2016, which purported to vest the Deputy Commissioner’s powers in the Director of Land Records, Surveys and Inspector General of Registration, and appellate authority in the departmental Secretary of the BTC.

However, the notification neither expressly referred to the Settlement Officer nor identified the statutory source authorising the transfer of appellate jurisdiction.

The Court held that Paragraph 12(1)(a) only permits modification of the local application of an existing State law; it does not authorise the rewriting of the statutory appellate hierarchy or the creation and allocation of judicial powers.

Independently, the notification was not gazetted and, on the BTC’s own admission, could not qualify as the “public notification” contemplated by Paragraph 12(1)(a).

The Secretary’s order dated 25 May 2023 in Mutation Appeal No. BTC/LR-688/2022 and the consequential order of the Assistant Settlement Officer dated 17 June 2023 were quashed and set aside.

The private respondents were granted liberty to appeal against the Settlement Officer’s order dated 20 July 2022 before the Assam Board of Revenue within 60 days; if filed within that period, the appeal was to be decided on merits without objection on limitation.

The Court clarified that its findings concerning the 30 December 2016 notification would operate prospectively and would not disturb other adjudications already undertaken on its basis.