Wp(C) 2925/2011

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No.2925/2011 1. Sri Suren Singha, S/o. Sri Mukta Singha. 2. Smti. Promila Devi, W/o. Sri Mukta Singha, Both are residents of Village Pub-Nandapur, Mouza – Hojai, District – Nagaon, Assam. …… Petitioners. -VERSUS- 1. Sri Mubi Sharma, S/o. Late Gopimohan Sharma, 2. Sri Giridhar Sharma, S/o. Late Gopimohan Sharma, Both are resident of Village Pachim-Nandapur, Mouza – Hojai, P.O. & P.S. Hojai, District – Nagaon, Assam. 3. Assam Board of Revenue, Guwahati, P.O. Guwahati, District : Kamrup, Assam. 4. State of Assam, Represented by the Secretary/Commissioner, Revenue, Dispur. ……. Respondents Writ Petition (C) No.3032/2011 1. Sri Mukta Singha, S/o. Late Nanau Singha. 2. Smti. Promila Devi, W/o. Sri Mukta Singha, Both are residents of Village Pub-Nandapur, Mouza – Hojai, District – Nagaon, Assam. …… Petitioners. -VERSUS- 1. Smti Bimla Devi, W/o. Shri Mobi Sharma, Resident of village Pachim-Nandapur, Mouza – Hojai, P.O. & P.S. Hojai, District – Nagaon, Assam. 2. Smti Gaumati Devi, W/o. Muni Singha, Resident of Village Borhat Thana Road, P.O. Borhat, District – Sibsagar, Assam. 3. Assam Board of Revenue, Guwahati, P.O. Guwahati, District : Kamrup, Assam. 4. State of Assam, Represented by the Secretary/Commissioner, Revenue, Dispur. ……. Respondents BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY For the Petitioners: Mr. R. L. Yadav, Ms. K. Yadav, Ms. A. Sarma & Mr. A. Kabra, Advocates. For the Respondent No.4: Ms. H.M. Phukan, Govt. Advocate. Date of hearing & judgment: 19.05.2016. W.P. (C) No.2925/2011 & W.P. (C) No.3032/2011 Page 1 of 6 JUDGEMENT AND ORDER (ORAL) Heard Sri R L Yadav, the learned counsel appearing for the petitioners in both the cases. The private respondents are unrepresented although notices were deemed to be served upon them. The learned Govt. Advocate Ms. H.M. Phukan appears for the State authorities. 2. The challenge in both the writ petitions is to the common judgment dated 18.04.2011 (Annexure-C) of the Assam Board of Revenue (hereinafter referred to as ‘the Revenue Board’) in the Revenue Case Nos. 6 RA (N) of 2007 & 7 RA (N) of 2007, whereby the Appeals filed by the respondents (hereinafter referred to as ‘the transferors’) was allowed and restoration of the annual patta in the name of the transferors was ordered, in respect of the annual patta land(s), sold through un- registered deeds, to the writ petitioners (transferees). Earlier, the transfer of annual patta land was construed to be in violation of the settlement condition, the transferred land was declared to be Govt. land and consequential direction was issued for correction of the revenue records, by the Addl. DC, Nagaon. 3. The transferors pleaded in their appeal before the Revenue Board that, they were the annual patta holders for the lands in question and had not executed any valid sale in favour of the transferees. The Revenue Board held that transfer of land by un- registered sale deeds is invalid. On such findings, the cancellation of the annual patta, ordered by the Revenue Authorities was found to be vitiated and consequently both Appeals were allowed and direction was issued for restoration of annual patta of the transferors. 4.1 It must be stated for the records that the W.P.(C) No.2925/2011 relates to land measuring 5 Bigha (out of 23 Bigha 3 Katha 11 Lecha land), covered by Dag No.117, Annual Patta No.13 under Pachim-Nandapur village, Mouza Hojai of Nagaon District. These 5 Bigha land were transferred by the private respondents through two un- registered sale deeds, executed on 3.6.1993 and 7.6.1996. 4.2 The next case i.e. W.P.(C) No.3032/2011 relates to land measuring 3 Bigha 2 Katha 10 Lecha (out of 17 Bigha 4 Katha 2 Lecha land), covered by Dag No.118 Annual Patta No.18 under Pachim-Nandapur village, Mouza Hojai of Nagaon District and these lands were transferred to the writ petitioners through two un-registered sale deeds, executed on 3.6.1993 and 28.2.1996. 5. Few years after taking possession of the transferred land, the transferees applied before the Circle Officer, Hojai for cancelling the transferor’s names in the W.P. (C) No.2925/2011 & W.P. (C) No.3032/2011 Page 2 of 6 revenue register and to convert the annual patta land to Govt. land category. As the application was based on the un-registered sale deeds, the Revenue Authorities declared that the settlement holders illegally transferred possession over the annual patta land and violated the conditions of settlement. Accordingly on 26.7.2005, the Circle Officer proposed for conversion of the transferred land to Govt. land category and the said proposal of the Circle Officer was approved by the Addl. DC (Revenue), Nagaon on 21.6.2007 in the N.R.K. Case No.6/2006—07 and on 24.7.2006 in the N.R.K. Case No.7/2006, respectively. The transferors challenged the said change of categorization by filing separate Appeals before the Revenue Board, which were registered as Revenue Case No. 6 RA (N) of 2007 & 7 RA (N) of 2007. 6. The transferees as respondents before the Revenue Board contended that, the T.S. No.31/2005 filed by the transferors against the transferees, for declaration of their right, title and interest and restoration of possession for the annual patta lands, was dismissed for non-prosecution on 26.2.2009 by the learned Munsiff, Hojai and accordingly the transferees argued that relief can’t be granted to the transferors, by the Revenue Board. It was also argued that limited right available to the transferors over annual patta land can always be transferred and this by itself, should not have resulted in conversion of the annual patta land into Govt. land category. 7. The legal validity of the un-registered sale deeds was considered by the Revenue Board and they found that valid sale can’t be executed without registered sale deed. Therefore the transaction through the un-registered sale deeds were found to be invalid and on that basis, the extinguishment of the right of the transferors on the annual patta land was declared to be unjustified and hence the consequential direction was issued for restoration of the annual patta, in favour of the transferors. 8. Representing the transferees, Mr. RL Yadav, the learned counsel submits that undoubtedly only limited right is available to an annual patta holder, but law does not prohibit transfer of this limited right. Therefore when the patta holder has transferred his rights through the un-registered sale deeds, at their instance, restoration of the annual patta in favour of the transferors could not have been ordered by the Revenue Board. The petitioners contend that the limited right over the annual patta land as secured by the transferees, should have been protected, at least against the transferors. 9. The Assam Land and Revenue Regulation, 1886 (hereinafter referred to as ‘the Regulation’) prescribes the rights of the settlement holders and distinguishes such right W.P. (C) No.2925/2011 & W.P. (C) No.3032/2011 Page 3 of 6 from that of the land holder. The settlement holder, under Section 11 of the Regulation, is declared to have no rights in the land held by him beyond such as are expressed in his settlement lease. Section 11 being relevant, is extracted here-in- below: “A settlement-holder who is not a land-holder, shall have no rights in the land held by him beyond such as are expressed in his settlement lease”. 10. In the Settlement Rules framed under the Regulation, the annual lease is explained under Rule 1(2)(c) as under: “1. Definition – (2) ………………………………………………….. ………………………… (c) An Annual Lease means a lease granted for one year only and confers no right in the soil beyond a right of user for the year for which it is given. It confers no right of inheritance beyond the year of issue. It confers no right of transfer or of sub-letting and shall be liable to cancellation for any transfer or sub-letting even during the year of issue : [Provided that the State Government may waive their right to cancel an annual lease and may allow its renewal automatically till such time as the State Government may direct in those cases in which the land is mortgaged to Government or to a State-sponsored Cooperative Society.] …………………………….” 11. In the context of the above legal provision, the issue to be decided here is, what is the effect of the transfer of the annual patta land and what right emanates upon the transferors, through such transactions. The Settlement Rules do not prohibit transfer of annual patta land but it is apparent from Rule 1(2)(c) that the transferred rights are limited in their duration only for the period covered by the annual patta. Thus when any transfer of right is affected by an annual patta holder for consideration, the transferors acquire good title to the annual patta land, subject only to the paramount title of the Government. In other words, “if the Government chooses it may, at the expiry of the period of the annual patta, refuse to grant an annual patta to the transferee. That however, is a matter between the Government and the transferee and not a matter between the transferor and the transferee” (see Jainur Ali vs. Chafina Bibi reported in AIR 1951 Assam 20). 12. In Jainur Ali (Supra) while concurring with the enunciation of the law authored by Justice Thadani, in his concurring judgment, Justice Ram Labhaya separately declared that the rights of the Government in the annual patta land is not affected by the transfer when the transferors is an annual lease holder.

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