Land Survey Tribunal, whether for only correction of the record-of-rights or also for order for opening separate (khariji) khatian

- Md. Mukhlasur Rahman

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Published On - October 5, 2016 [Vol. 5, Jul - Dec, 2016]

What is Land Survey Tribunal:

The Chapter XVIIA, containing secs. 145A-145I, of the State Acquisition and Tenancy Act (Henceforth SAT Act) was inserted by section 2 of the State Acquisition and Tenancy (Amendment) Act, 2004 (Act No. IX of 2004). By inserting this chapter the legislature has created a special forum and alternative way of the civil court for rectification of the wrongs, if any, in the last revised record-of-rights through a summary proceeding. Sec. 145A(1) of the SAT Act provides that the Government may establish Special Tribunal(s) especially created for the purpose of determination of the disputes arising out of the final publication of the last revised record-of-rights prepared u/s. 144 of SAT Act. These Special Tribunals constituted under this sec. 145A(1) are named “the Land Survey Tribunals”.

Jurisdiction of the Tribunal is for correction of  the last revised record only:

From the provision of 145A(1) it is clear that the Land Survey Tribunal has been established to correct only the last revised record-of-rights, i.e. only the BS or in the name of BRS or RS record/Mohanagar Jarip, Diara survey etc. Therefore, such Tribunals will have jurisdiction only to correct this last BRS record; not to see anything beyond this last record.

Powers of the Land Survey Tribunal in giving order in decree:

Sub-sec. (8) of sec. 145A of the Act may be reproduced here that “The Tribunal shall be competent to declare the impugned record-of-rights to be incorrect and further direct the concerned office to correct the record-of-rights in accordance with its decision, and may also pass such other order as may be necessary.”

This provision of the statute made it amply clear that the Land Survey Tribunals can (i) declare the record under challenge to be incorrect, (ii) direct the concerned office to correct that record according to its decision and (iii) also that the Tribunal may also pass such other order as may be necessary. We may discuss all these three points:-

First portion, – i.e. point nos. (i) & (ii); declaring the record to be incorrect and directing to correct the said record:

So far our appreciation, we may say that this portion of the sub-section as to “declare any record to be incorrect and direct to correct the record according to its decision” should be read jointly; and as such every order of the Tribunal decreeing the suit must first declare the record to be incorrect and then give another order to correct the said record according to its said declaration. Therefore, every such declaration must not be a lump, vague and unascertained declaration that the disputed record is incorrect; rather it must specify in its order as to that in which portion or how far the impugned record is wrong and then direct to make good in that portion which it has already ascertained in its declaration portion.

Second portion, – i.e. point no. (iii); such other order as may be necessary:

The last portion of the sub-section as to ‘such other order as may be necessary’ deserves to be interpreted; because, if this expression can be properly applied then this Land Survey Tribunal, being a special tribunal, may function as a full fledged civil court and thereby it can even declare title to the suit lands or may give decision upon right to possession to it.

It is our study that this expression ‘such other order as may be necessary’ means such powers which are close related as well as consistent with the first portion, i.e. correction of the Khatian. In this respect we may rely upon the established principle that when any statute allow the courts some other necessary powers along with some specified powers, then those other necessary powers must be construed ejusdem generis, i.e. those other necessary orders must be at least analogous to those specified powers and under this necessary power the court cannot travel contrary to those specified powers or beyond the basic purpose of the law; ref. AIR 1922 PC 112, 57 DLR 668.

Whether the LST can direct for opening mutation Khatian under this power of ‘such other order as may be necessary’ –

It cannot be disputed that opening mutation khatian is very much related to the record and as such it may be argued that the Tribunals under the power of ‘to pass any necessary order’ shall have power to direct the officials concerned to open mutation khatian.

But it is our study that such mutation khatian is not within the ambit of the Land Survey Tribunal. Because, we know that the khatians can be mutated only u/s. 117 or s. 143 of the SAT Act and under these sections mutation khatian can be opened only taking into consideration of the original khatian to be correct, not to be incorrect. But the LST’s works by not taking the original khatian to be correct; rather its power is determining a khatian to be incorrect and then to correct the same. Therefore, apparently we construe that mutation khatian cannot be ordered for u/s. 145A(8) of SAT Act or in other words the Tribunal has no power to direct for creating a new khatian and if any decree is passed by the LST only to open mutation/khariji khatian without specific determination of the original khatian, the decree would be beyond jurisdiction.

Decree of the Tribunal must specify “how to” and “in which share” the record-of-rights in question shall be corrected:

As per sub-sec. (8) of sec. 145A SAT Act the decree of the Land Survey Tribunal must be specified as to how and in which share the disputed khatian shall be corrected; in other words the decree shall direct not only to correct the plaintiff’s share but it shall direct to correct the Khatian in question as a whole by reducing the shares of other co-sharers as well giving specifications in the decree; otherwise the parties would be driven to multiplicity of litigations which is barred u/o. 2 rr. 1/2.

Whether the Revenue officer shall be bound by a decree for correction of a record-of-rights eventhough the decree is not specified as to how and in which shares the impugned Khatian shall be corrected or when the decree without directing correction of the last record direct to mutate a new khatian:

We have already seen earlier that as per sub-sec. (8) of sec. 145A SAT Act the decree of the Land Survey Tribunal must be specified. Now question is whether the Revenue-officers shall be under obligation to correct the Khatian when the decree is not so specified as above or to open a new Khatian in decree-holder’s name if the decree directs so.

In answer to this query our study is – We know that it is a cardinal principle of law that where a decree be presented for execution was made by a court which apparently had no jurisdiction, the executing court is entitled to refuse to execute it, 35 DLR 18, 33 DLR (AD) 17. In execution proceedings questions relating to the executability of an order or decree can be raised and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution, 13 DLR (SC) 94. Moreover, the executing court cannot and shall not execute the decree when the decree cannot be executed due to non-specifications of decretal lands; ref. 23 BLD (AD) 98.

When a decree for correction of the record u/s. 145A(8) does not specifically state the shares of the parties as discussed above, i.e. in which shares the Khatian shall be corrected, the Revenue-officers will likely be puzzled by such decrees to execute the same, in other words, such a decree is not capable to be executed as it is, rather for its execution the revenue officers shall have to go beyond the terms of the decree. In such circumstances, under the principles of law respecting obligation to obey a decree by the executing court, as shown above, we are of opinion that under such unspecified decree the revenue-officers shall not be bound to correct the Khatian. A decision may help us to take this view that in a suit u/s. 106 of the B.T. Act it was held that the plaintiff was not entitled to a declaration that a specific entry in the record-of-rights was not correct as it stood, as he must go further and establish in what respect it is incorrect and how it should be amended; if he is unable to do this, his suit must fail, 21 CWN 492.

Concluding view:

We have studied above that the Land Survey Tribunal has got power under the statute to give order only for correction of the record-of-rights. It got no power to give order either to open any mutation (separate/khariji) khatian u/s. 117 of SAT Act or to mutate any one’s name in original khatian u/s. 143 of the Act. We have also discussed above that the decree of this Tribunal must specify as to how and in which share the record-of-rights in question shall be corrected and any decree of a court of law must not be such that it would not be executed. But unfortunately, we have experience of seeing number of cases where the learned Tribunals have given decrees directing that – “the suit khatian shall be corrected according to decree” without specifying in the decree how (in which share) the khatian shall be corrected. Some decrees do not clarify as to what would be the status of other owners of the khatian in respect of the remaining lands of the suit khatian and thereby the other recorded owners fall in the dark as well as in danger regarding their status of ownership, though they may not have any grievance against the decree. Strangely, we also observe most of the decrees as to that “the defendant numbers so and so (concerned government officials) are directed to open a new/khariji khatian in the names of the plaintiffs taking off the suit lands from suit khatian”, though such order for opening khariji/new khatian is not within the domain of the Tribunal. We also see some decrees which determine title to or right to possession in the suit lands which also is not within authority of the Tribunal.

Under such decrees the revenue officers will likely be confused whether to correct or mutate the khatian. Also that as per principles of law as seen above in cases of 35 DLR 18, 33 DLR (AD) 17, 13 DLR (SC) 94, 23 BLD (AD) 98 the revenue officials may refuse to execute such decrees for want of jurisdiction of the Tribunal and/or due to non-specification and uncertainty of the decree and ultimately the litigant people would fall in trouble and harassment thereby. Therefore, we may plead that if the decrees of the Tribunals would come maintaining all the above discussed laws, then the helpless people of our country would get more proper and adequate relief.

About The Writer

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Md. Mukhlasur Rahman

Senior Assistant Judge

Iswargonj Chowki Court, Mymensingh

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