Gauhati High Court
Amrit Bahadur Chetry @ Amrit Bahadur ... vs The Deputy Commissioner, Nagaon & Ors on 19 May, 2016
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
WP(C) Nos. 4343 & 4309 of 2011
I. W P(C) No.4343/ 2011
1. Shri Amrit Bahadur Chetry @ Amrit Bahadur Karki Chetry.
2. Shri Damru Chetry @ Dambru Karki Chetry.
Sl.Nos.1 and 2 both are sons of late Bhim Bahadur Karki Chetry.
3. Smt. Damayanti Chetry @ Damayanti Karki Chetry,
W/O Late Dhan Bahdur Chetry @ Dhan Bahadur Karki Chetry,
Sl.Nos.1, 2 and 3 all are residents of Pub Bhalukmari Kissam,
Mouza, PO & PS-Lanka, Dist.-Nagaon, Assam.
......Petitioners.
Versus
1. The Deputy Commissioner,
Nagaon, Dist.-Nagaon, Assam.
2. The Additional Deputy Commissioner, Nagaon,
Dist.-Nagaon, Assam.
3. The Circle Officer, Lanka Revenue Circle,
PO-Lanka, Dist.-Nagaon, Assam.
4. Smt. Pranita Devi,
W/O Sri Netra Prasad Sarmah,
Resident of Pub Bhalukmari, Mouza, PO & PS-Lanka,
Dist.-Nagaon, Assam.
......Respondents.
5. The Assam Board of Revenue at Guwahati,
To be represented by the Registrar,
Panbazar, Guwahati-1.
......Proforma Respondent.
For the Petitioners : Mr. B. Chakraborty. ....Advocate.
For the Respondents 1-3 : Ms. B. Dutta, GA, Assam. .... Sr. Advocate.
II . W P(C) No.4309/ 2011
Shri Amrit Bahadur Chetry @ Amrit Bahadur Karki Chetry,
S/O Late Bhim Bahadur Chetry,
Resident of Pub Bhalukmari Kissam, Mouza, PO & PS-Lanka,
Dist.-Nagaon, Assam.
......Petitioner.
WP(C) 4343, 4309/2011 Page 1 of 6
Versus
1. The Deputy Commissioner,
Nagaon, Dist.-Nagaon, Assam.
2. The Additional Deputy Commissioner, Nagaon,
Dist.-Nagaon, Assam.
3. The Circle Officer, Lanka Revenue Circle,
PO-Lanka, Dist.-Nagaon, Assam.
4. Smt. Pranita Devi,
W/O Sri Netra Prasad Sarmah,
Resident of Pub Bhalukmari, Mouza, PO & PS-Lanka,
Dist.-Nagaon, Assam.
......Respondents.
5. The Assam Board of Revenue at Guwahati,
To be represented by the Registrar,
Panbazar, Guwahati-1.
......Proforma Respondent.
For the Petitioner : Mr. B. Chakraborty. ....Advocate.
For the Respondents : Ms. B. Dutta, GA, Assam. ....Advocate.
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing and Judgment : 19 th M ay, 2016
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. Chakraborty, the learned counsel representing the petitioners in both the cases. Also heard Ms. B. Dutta, the learned Sr. advocate appearing for the State authorities. Although notice was served on the 4th respondent, she has failed to enter her appearance.
2. The common issue in both the cases is whether the annual patta land of the petitioners could be converted to Sarkari category, on the transfer of the land by the pattadars in favour of the 4th respondent. In the WP(C) No.4343/2011 the concerned land measures 1 bigha 3 kathas covered by Dag No.660, Annual Patta No.43 under Kissam Pub Bhalukmari Mouza, Lanka Circle. In the WP(C) No.4309/2011, the annual patta land measures 6 bighas covered by Dag No.674, Annual Patta No.9 under Kissam Pub Bhalukmari Mouza, Lanka WP(C) 4343, 4309/2011 Page 2 of 6 Circle. Both lands were transferred by the petitioners to Smt. Pranita Devi (respondent No.4).
3. Following the transfer of the annual patta land, the Circle Officer, Lanka registered the NR Case No.25/08-09 and the NR Case No.26/08-09 for cancelling the annual patta as the A.P. lands were transferred illegally and a proposal was put up to convert the annual patta land to Sarkari category. These proposals of the Circle Officer was approved on 12.07.2010 by the Addl. D.C.(Rev.) in the NRK (NR) Case No.29/10-11 and the NRK (NR) Case No.30/10- 11 and direction was issued to categorize the land as Sarkari and correction of the land records was ordered.
4. The aggrieved settlement holder challenged the above decision under Section 151 of the Assam Land Revenue Regulation, 1885 (hereinafter referred to as the "Land Revenue Regulation") and the Case No.16 RA(N)/2011 and the Case No.17 RA(N)/2011 was then registered. In their appeals, the patta holders contended that they never transferred the annual patta lands to a 3rd party and continue to retain possession of the concerned land. Therefore, it was contended that due enquiry was not made by the revenue authorities and cancellation of patta was unjustly ordered, without affording any hearing to the affected party.
5. However, through the impugned judgment(s) rendered on 24.02.2011, the Revenue Board dismissed both appeals of the patta holders only on the basis that annual patta land cannot be transferred. But the pleaded case of the appellants that they never transferred the land to a 3rd party and that they were denied any opportunity of hearing, were not taken into account by the Revenue Board, in dismissing the appeals.
6. Assailing the legality of the order, Mr. B. Chakraborty, the learned counsel submits that the status of an annual patta holder is that of a settlement holder and if any order to his prejudice is to be made, notice and hearing must be afforded to the affected party as is mandated by Rule 116 of the Settlement Rules framed under the Land Revenue Regulation. The petitioners contend that an annual patta, until cancelled, confers good title upon the person to whom the patta is issued and such person is entitled to possess the land, to the exclusion of all others including the trespasser. Mr. Chakraborty relies on Ajgarh Ali Vs. Abdul WP(C) 4343, 4309/2011 Page 3 of 6 Siddique reported in 1999(1) GLT 642 to contend that the right of the annual patta holder cannot be disturbed without issuing non-revewal notice and when valid annual patta subsists, further settlement cannot be made in favour of a 3rd party, without cancellation of the annual patta by issuing the non-renewal notice.
7. The Assam Land and Revenue Regulation, 1886 (hereinafter referred to as 'the Regulation') prescribes the rights of the settlement holders and distinguishes such right 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".
8. 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.] .................................."
9. The Settlement Rules do not prohibit transfer of annual pattas 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 choose it may, at the expiry of the period of the annual patta, refuse to grant an annual patta to the WP(C) 4343, 4309/2011 Page 4 of 6 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).
10. In Jainur Ali (supra) while concurring with the above 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. The Government however has the right to not to renew the lease and to recover possession of the property. It may give the lease at the expiry of the year, to another person. The transferee will not acquire interest in the land as against the Government or any new lease holder but only against his own transferor, he is entitled to enforce the transaction. In other words, it was declared that the transfer of the annual patta land is not forbidden as it does not contravene any statutory prohibition but it merely violates the terms of the lease. Therefore such transaction is not enforceable against the Government it can be enforced against the transferors.
11. Under Rule 1(c) of the Settlement Rules of the Land Revenue Regulation, limited right is conferred on the annual patta holder and during the subsistence of the lease that limited right can be enjoyed till such time, the annual lease is cancelled through due process. The name of a settlement holder can be struck off from the revenue register under Rule 116 of the Settlement Rules, but the proviso to Rule 116 requires that opportunity must be afforded to the settlement holder and his objection should be considered, before the name of the settlement holder is struck off.
12. In the present cases, the Circle Officer proceeded on the basis that the petitioners had transferred annual patta land in favour of the 4th respondent and on that basis cancellation of patta was ordered and the land was categorized as Sarkari land. But the exercise of power under Rule 116 of the Settlement Rules must be preceded by due notice and hearing of objection. But the order of the Addl. D.C. passed on 12.07.2010 do not disclose that any such notice was issued to the settlement holder or hearing was afforded before cancellation of patta was ordered. The denial of notice or hearing was specifically pleaded by the settlement holder in the appeals filed before the Revenue Board, but both WP(C) 4343, 4309/2011 Page 5 of 6 appeals were summarily dismissed on 24.02.2011 without any discussion on the arguments made by the appellants.
13. Therefore, in my considered opinion, the concerned decisions against the writ petitioners were rendered in violation of the principles of natural justice and the procedure prescribed by Rule 116 of the Settlement Rules were ignored. Accordingly the impugned decision of the Revenue Board, which upholds the decision of the Addl. D.C., are found to be vitiated and the same are quashed. But this verdict will not restrict the power of the Government to not to renew the annual patta or to cancel the right of the settlement holder, but such decision must be taken through due process as prescribed under the Land Revenue Regulation and the Settlement Rules. It is ordered accordingly.
14. With the above order, both the cases stand allowed without any order on cost.
JUDGE Roy WP(C) 4343, 4309/2011 Page 6 of 6