WP(C) 399/2009 BEFORE HON’BLE MR JUSTICE I A ANSARI JUDGMENT AND ORDER (ORAL) The petitioner, which is a company, registered under the Companies Act, 1956, owns Jamuguri Tea Estate, situated in the District of Golaghat. In the ye ar 1972, a land ceiling proceeding was instituted against the said tea estate in terms of the provisions of the Assam Fixation of Ceiling of Land Holding (Amend ment) Act, 1970. In the said land ceiling proceeding, an order was passed, on 1 3.02.1974, by the Sub-Divisional Officer, Golaghat, holding that the said tea es tate was having, in all, land measuring 2511.69 Acre (i.e., 7595 Bigha 3 Katha 9 Lecha) and, that out of the said land, the tea estate was found to have planted tea over an area measuring 1088.47 Acre (i.e., 3666 Bigha). This apart, land, measuring 640.01 Acre and 217.69 Acre, was found to be used by the tea estate fo r various other purposes, and the rest 565.52 Acres (i.e., 1710 Bigha 3 Katha 10 Lecha) was found additional. Thereafter, an order was passed, on 27.03.1974, b y the Sub-Divisional Officer, Golaghat, whereby an area of land, measuring 1710 Bigha, 3 Katha and 10 Lecha, of the said tea estate, was declared as ceiling sur plus land. The management of the said tea estate raised objection on the ground that the land, which had been found to be ceiling surplus land, was actually be ing used by the said tea estate for plantation of tea bushes and for housing the labourers of the tea estate and, hence, the said land should not be acquired. However, the Sub-Divisional Officer, Golaghat, on the basis of the findings reac hed by him, directed that some other area of land of the said tea estate, which was free from plantation or residence, etc., be found out so that 1710 Bigha 3 K atha and 10 Lecha, which had been declared as ceiling surplus land, could be acq uired. Thereafter, an order was passed, on 09.02.1976, making it clear that por tion of the land of the said tea estate, covered by Dag Nos. 71, 72, 75, 76, 79, 92, 93, 94, 95, 74, 84, 91, 86, 90, 89, 88, 96 and 80, could not be obtained du e to presence of tea plantation and labourers’ residential quarters. By order, dated 14.07.2008, the Deputy Commissioner, Golaghat, has informed the Manager of the said tea estate that as per the joint-survey, carried out by the Land Reven ue staff of Golaghat Revenue Circle and the surveyor, engaged by the management of the said tea estate, the said tea estate has been occupying ceiling surplus l and measuring 371 Bigha 2 Katha and 15 Lecha. While it is the case of the petit ioner that possession of the entire ceiling surplus land had been handed over to the officers of the Revenue Department, the respondents have denied the same. The petitioner, then, came to this Court with a writ application made under Arti cle 226 of the Constitution of India, which gave rise to WP(C) No. 3173/2008. T he writ petition was disposed of, on 30.07.2008, with the following observations and directions: The dispute as projected in this writ petition relates to acquisition and/or su rrendering of land holding the same to be ceiling surplus under the provisions o f the Assam Fixation of Ceiling on Land Holding Act, 1956, as amended from time to time. It is submitted by Mr. Deka that although the possession of the excess ceiling land of 1710 B 3 K 10 L was taken over by the ASO, Golaghat, vide posse ssion certificate dated 07.06.76. Thereafter on a joint survey it was found tha t in Dag No. 130, the petitioner is yet to surrender another 371 B 2 K 15 L of l and. According, on the basis of that record, the Deputy Commissioner, Golaghat, by the impugned notice dated 14.07.2008, has directed the petitioner to take im mediate steps to hand over the aforesaid area of land within a period of seven d ays. Admittedly, in order to deal with the factual aspect of the case, it is re quired to go into the records and verification of the land. The impugned order having been passed by the Deputy Commissioner is an appellable order before the Assam Board of Revenue under Section 147 of the Assam Land and Revenue Regulatio n, 1886. In view of the aforesaid remedy available to the petitioner, the petit ioner may file an appeal before the appropriate authority within a period of 30 days from today. For the aforesaid period of 30 days, status quo in respect of the disputed land shall be maintained by the parties. The petitioner would be e ntitled to pray for necessary interim order before the appellate authority. Subject to the aforesaid directions, this writ petition stands disposed of. 2. Thereafter, the petitioner preferred an appeal to the Assam Board of Rev enue, Guwahati. This appeal gave rise to Case No. 90RA(GLT)/08. By judgment an d order, dated 22.12.2008, the appeal has been disposed of by the learned Board with the observations and directions as reproduced below: 18. After perusal of the records of the case and hearingd the learned Advocates for both the parties, it is seen that in the year 1972 the Collector declared 1 710 Bigha 3 Katha 10 Lecha of the garden as ceiling surplus. Since there is not hing in records to show that the garden challenged this decision of declaring 17 10 Bigha 3 Katha 10 Lecha of their garden land as ceiling surplus, it cannot be denied that the garden has to hand over that area of land to the Govt. as ceilin g surplus. Land is not a commodity which can be stolen or removed. There is no thing to show that any part of the aforesaid ceiling surplus land has been erode d in las 36 years. In absence of anything like that, the garden authority has t o hand over actually 1710 Bigha 3 Katha 10 Lecha of land. Since the latest join t survey with the appellant has clearly shown that the Govt. has got only 1338 B igha 4 Katha 15 Lecha of land as ceiling surplus from the garden, the appellant/ garden has to hand over the remaining area measuring 371 Bigha 3 Katha 15 Lecha. 19. The garden authority will indicate to the Deputy Commissioner from which dag s and what areas totaling 371 Bigha 3 Katha 15 Lecha will be handed over to the Govt. 20. As the aforesaid paragraphs have made it clear that the appellant has to han d over 371 Bigha 3 Katha 15 Lecha of land, I am of the opinion that there is no force behind the appeal. The appeal is therefore not maintainable and liable to be dismissed which I do. The impugned order No. GRS.48/06/27 dated 14.07.2008 of the Deputy Commissioner, Golaghat, is upheld. There is, however, no order as to cost. 3. I have heard Mr. H. K. Deka, learned Senior Advocate, appearing on behal f of the petitioner, and Ms. B. L. Sinha, learned Government Advocate, appearing on behalf of the respondents. 4. It is the case of the petitioner, as already indicate above, that the po ssession of the acquired ceiling surplus land had already been handed over to th e respondents/authorities concerned. This fact is being disputed by the respond ents. In respect of, however, the petitioner’s contention that the land aforeme ntioned had been handed over to the respondents/authorities concerned, the petit ioner relied on a certificate of possession, which was issued by the Assistant S ettlement Officer, on 02.06.1976, and the findings recorded in the joint-survey report. This contention was, however, not been accepted by the learned Board o f Revenue. 5. It, thus, becomes entirety a question of fact as to whether the possessi on of land, measuring 371 Bigha 3 Katha 15 Lecha, had been handed over by the sa id tea estate to the authorities concerned or not. This question is an intensel y disputed question of fact. Determination of such an intensely disputed questi on of fact would require making of a roving enquiry and also will require the Co urt to record evidence, which is not reasonable to do in a proceeding, such as, the present one, particularly, when the petitioner’s earlier writ petition was c losed on the ground that the writ petition required determination of facts. 6. Because of what have been pointed out above, this Court is firmly of the view that in the facts and attending circumstances of the present case, writ ju risdiction under Article 226 cannot be exercised. 7. In view of the above, this writ petition is not admitted and the same sh all accordingly stand dismissed. No order as to cost.