High Court · 2012

(Amitava Roy,J) Being dissatisfied with the determination made in WP(C) No.2676/2007 rejecting t he appellant’s challenge to the Circular No.RSS/1467/2006/4 dated 06.12.2006 imp osing restriction on transfer of land covered by periodic patta on conversion fr om annual patta for a period of 10 years therefrom, writ petitioners are in appe al. We have heard Mr. S. Medhi, learned counsel for the appellants and Mr. P.S. Deka , learned Standing Counsel for the respondents. Briefly, stated the facts, in bare essential, are that the writ appellants/writ petitioners predecessor-in-interest was the owner of a plot of land measuring 4 Kathas 10 Lechas covered by dag No.77 of Annual Patta No.5 of village No.98 Numa lijalah, Mouza - Sils Sundari Ghopa of village Numaligarh in the Kamrup Rural di strict. On his death, the appellants succeeded to this land and they having app lied for conversion thereof to a periodic lease, by order dated 02.01.2007 the r equest was acceded to. The conversion was allowed from annual lease to periodic lease subject to the payment of 50% of the land value at Rs.1,05,666.66/- per b igha. The premium amounting to Rs.75,288/- having been paid by the writ appel lants/writ petitioners, their names were mutated in the Revenue Records(Jamaband i) on 11.01.2007 with a rider that in view of the order of the Govt. of Assam (R evenue) vide No. RSS/1467/2006/2 dated 04.12.2006, the land could not be transfe rred for a period of 10 years. Questioning the validity of the circular imposing the above restriction on the transfer of land, the writ appellants/writ petitioners approached this Court. No affidavit-in-opposition was filed by the State respondents. However by the im pugned judgment and order to reiterate, the challenge has been negated. Mr. Medhi has urged with special reference to Section 9 and 13-A of the Assam La nd and Revenue Regulation, 1986 (hereinafter for short referred to as the Regula tion) that the writ appellants/writ petitioners having acquired permanent, herit able and transferable right of the use and occupancy of the land involved by din t of conversion from annual to periodic lease, the restriction on transfer there of for a period of 10 years is wholly unauthorized. According to him, such a re striction by an administrative fiat is inconceivable in law and thus the impugne d decision ought to be adjudged null and void. The learned counsel has insiste d that having regard to the acquired permanent, heritable and transferable right of the use and occupancy of the land, no such restriction which is clearly oppo sed to the aforesaid provisions of the Regulations is sustainable in law. Mr. Deka, in response has submitted that as the decision conveyed by the letter dated 04.06.2006 is traceable to Section 9(c) of the Regulations as well as Exec utive Instruction No.6 framed thereunder, the challenge thereto is misconceived. The appellants/writ petitioners having accepted the periodic patta with the co ndition against transfer without any demur, it is impermissible for them to turn around and repudiate the Govt. decision, he urged. We have applied ourselves to the pleaded facts as well as the arguments advanced . That the aforementioned land earlier held by the writ appellants/writ petition ers under annual patta had been converted to periodic patta at their instance by the order dated 02.01.2007 is a matter of record. The writ petitioners have al so duly paid the premium as was demanded of them in connection with this process of conversion. The relevant extract of the revenue records (Jammabandi) vis-à-v is this land evidences such conversion as well. That a restriction on the trans fer thereof for a period of 10 years was with reference to the letter dated 04.1 2.2006 mentioned therein is also apparent therefrom. Section 9 of the Regulations which holds the centre stage of the debate deserves extraction- (cid:28)Section - 9 Rights of land-holders - A land-holder shall have a permanent, heritable and tra nsferable right of use and occupancy in his land, subject to, - (a) gally assessed or imposed in respect of land; (b) the reservation in favour of the Government of all quarries and of all m ines, minerals and minerals oils, and of all buried treasure, with full liberty to search for and work the same, paying to the land-holder only compensation for the payment of all revenue, taxes, cesses and rates from time to time le the surface damage as estimated by the Deputy Commissioner; and the special conditions of any engagement into which the land-holder may (c) have entered with the Government. Rules 13-A being of considerable significance is also set out hereunder: (cid:28)13-A Notwithstanding anything in these rules or any order made thereunder, the State Government may, by general or special order, direct that wherever a period ic lease is granted or an annual lease is converted into periodic, it shall be s ubject to the payment of premium at such rate as may be fixed by the State Gover nment. (cid:29) Clause 6 of the Executive Instructions forbids transfer of land contained in per iod khiraja lease, if the holder is a professional cultivator, to a person who i s not a professional cultivator, without the previous sanction of the Deputy Com missioner. A plain perusal of the letter dated 04.06.2006 highlights the principal objectiv e of conversion of an annual patta to a periodic patta to be to provide land, t itle and legal rights to landless people residing thereon so that they can also take loan for house building, agricultural and allied activities. The letter r ecords the concern of the Government from its day-to-day experience out of sal es of such land by the otherwiswe landless persons to some Real Estate dealers t hus setting at naught the underlying objective to provide land for their rehabil itation. The decision of the Government, in the above factual premise, to impos e a restriction on the transfer of such land by sale, mortgage, lease or gift fo r next 10 years was thus underlined in the said letter. Thereby, a consequenti al decision to the concerned revenue authorities was issued to impose a clause i ncorporating such restriction on transfer of land for 10 years while correcting the land records by converting annual patta to be a periodic patta. Section 9 which contemplates a permanent, heritable and transferable right of us e and occupancy of a land-holder subject it amongst others to a special conditio n of any engagement into which the land holder may enter with the Government. The word (cid:28)engagement (cid:29) as referred to in the Black’s Law Dictionary 1st Edition m eans a new contract or agreement involving mutual promises. It is in our view, therefore open to the Government to insist on a special condi tion to be entered into by the land holder at the time of issuance of the patta to any person. The enabling provision of Rule 13-A empowering the Government by general or special order to direct wherever a periodic lease is granted by conv erting a annual lease to make it subject to the payment of a premium at such rat e as is fixed by it does not in our estimate preclude it to insist on the compli ance of Section 9(c) in addition thereto. Noticeably, the appellants/writ petit ioners have accepted the conversion subject to the rider of the restriction on t he transfer of land for a period of 10 years and as on date are holding on to th e same. On a cumulative consideration of all above, we do not feel persuaded to hold th at the decision of the State Government in principle to impose the above restric tion in the limited form as expressed in the letter dated 04.12.2006 is either i nvalid in law or is in violation of the letter and spirit of Section 9 of the Re gulations. That the reasons impelling the State Government to impose that restr iction as contained in the aforementioned letter are wholesome and in furtheranc e of the interest of the landless persons of the State can by no means be doubte d. In the above premise, having regard to the analysis of the facts and law contain ed in the impugned judgment and order, we are of the view that the appeal does n ot merit acceptance. It is held to be without substance and is dismissed. No c osts.