Gauhati High Court
WP(C)/4145/2012 on 8 June, 2023
Page No.# 1/12
GAHC010173842012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WRIT PETITION (C) No. 4145/2012
1. On the death of Smt. Indu Prava Bordoloi,
Represented By [1] Sri Dibya Bordoloi, S/o Late
Saranan Bordoloi, S/o Late Indu Prava Bordoloi, R/o
Girls Higher Secondary School Road, P.O. & P.S. -
North Lakhimpur, District - Lakhimpur, Assam-
787001.
1[a] Sri Lakhya Jyoti Bordoloi, S/o Late Sarana
Bordoloi, S/o Late Indu Prava Bordoloi, R/o Girls
Higher Secondary School Road, P.O & P.S. - North
Lakhimpur, District - Lakhimpur, Assam, Pin Code-
787001.
1[b] Sri Nirab Jyoti Bordoloi, S/o Late Sarana
Bordoloi, S/o Late Indu Prava Bordoloi, R/o Girls
Higher Secondary School Road, P.O. & P.S. - North
Lakhimpur, District - Lakhimpur, Assam, Pin -
787001.
1 [c] Sri Tapan Jyoti Bordoloi, S/o Late Saranan
Bordoloi, S/o Late Indu Prava Bordoloi, R/o Girls
Page No.# 2/12
Higher Secondary School Road, P.O. & P.S - North
Lakhimpur, District - Lakhimpur, Assam, Pin Code-
787001.
..................Petitioners
-Versus-
1. The State of Assam, Represented by the
Commissioner & Secretary to the Government of
Assam, Department of Revenue, Dispur, Guwahati-6,
District - Kamrup [M], Assam.
2. The Deputy Commissioner [Revenue Branch]
North Lakhimpur, Lakhimpur, Assam-787001.
3. The Circle Officer, North Lakhimpur Circle,
North Lakhimpur, Lakhimpur, Assam-787001.
4. On the death of Sri Jibon Dutta, S/o Late Mina
Ram Dutta, R/o Hindu Gaon, P.O./P.S. - North
Lakhimpur, Lakhimpur, Assam-787001, Represented
by [4.1.] Smti. Bhabani Bhuyan Dutta, W/o Late Jibon
Dutta, R/o Hindu Gaon P.O. & P.S. - North Lakhimpur,
Lakhimpur, Assam, Pin-787001.
4.2. Smti. Shanati Priya Dutta, W/o Late Jibon Dutta,
R/o Hindu Gaon, P.O. & P.S. North Lakhimpur,
Lakhimpur, Assam, Pin-787001.
4.3. Shri Kuldip Narayan Dutta, S/o Late Jibon Dutta,
R/o Hindu Gaon, P.O. & P.S. North Lakhimpur,
Lakhimpur, Assam, Pin-787001.
Page No.# 3/12
4.4. Shri Hsari Narayan Dutta, S/o Late Jibon Dutta,
R/o Hindu Gaon, P.O. & P.S. North Lakhimpur,
Lakhimpur, Assam, Pin-787001.
4.5. Shri Birinchi Narayan Dutta, S/o Late Jibon Dutta,
R/o Hindu Gaon, P.O. & P.S. - North Lakhimpur,
Lakhimpur, Assam, Pin-787001.
4.6. Smti. Sikhamoni Dutta, D/o Late Jibon Dutta, R/o
Hindu Gaon, P.O. & P.S. - North Lakhimpur,
Lakhimpur, Assam, Pin-787001.
...................Respondents
Advocates :
Petitioner : Mr. N.N. Upadhyay, Advocate.
Respondent no. 1 : Ms. N. Bordoloi, Standing Counsel.
Revenue Department
Respondent nos. 2 & 3 : Mr. C.K.S. Baruah,
Junior Government Advocate
Respondent no. 4 : Mr. A. Sattar, Advocate
Date of Judgment & Order : 08.06.2023
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
The original writ petitioner who instituted the instant writ petition under
Article 226 of the Constitution of India, was one Indu Prava Bordoloi, wife of
one Late Saranan Bordoloi. The name of the original writ petitioner, Indu Prava
Page No.# 4/12
Bordoloi was substituted by her 4 [four] legal representatives pursuant to an
order dated 20.07.2018 passed in an interlocutory application, I.A.[Civil] no.
372/2018 filed for substitution. In the writ petition, the original party-
respondent no. 4 was one Jibon Dutta, who had been substituted by his 6 [six]
legal representatives pursuant to an order dated 15.03.2019 passed in the
interlocutory application, I.A.[Civil] no. 812/2019, filed for substitution.
2. An order dated 13.02.2012 passed by the Additional Deputy Commissioner
[Revenue], Lakhimpur in N.R. Case no. 35/2002 has been challenged in the writ
petition.
3. From the case records and the averments made in the pleadings, it has
emerged that Late Ananta Bordoloi had four sons viz. [i] Upen Bordoloi; [ii]
Suraj Bordoloi; [iii] Amulya Bordoloi; and [iv] Saranan Bordoloi. Saranan
Bordoloi was the husband of the original writ petitioner, Indu Prava Bordoloi.
Late Lilabati Bordoloi, who expired in the year 1968, was the wife of Ananta
Bordoloi. Ananta Bordoloi pre-deceased his wife in the year 1963. It is stated
that Ananta Bordoloi was owner and possessor of a few parcels of land including
one plot of land measuring 16 Lessas, covered by Annual Patta no. 1 & Dag no.
183, located at North Lakhimpur Town Part-I, Mouza - Lakhimpur, District -
Lakhimpur [hereinafter referred to as 'the subject-plot', at places, for easy
reference].
4. I have heard Mr. N.N. Upadhyay, learned counsel for the petitioners; Ms. N.
Bordoloi, learned Standing Counsel, Revenue Department for the respondent no.
1; Mr. C.K.S. Baruah, learned Junior Government Advocate, Assam for the
Page No.# 5/12
respondent nos. 2 & 3; and Mr. A. Sattar, learned counsel for the substituted
legal representatives of the respondent no. 4.
5. From the impugned order dated 13.02.2012, it is revealed that the
Additional Deputy Commissioner [Revenue], Lakhimpur had ordered cancellation
of the annual patta being Annual Patta no. 1, pertaining to an area of 4 [four]
Lessas falling within Dag no. 183, located at North Lakhimpur Town Part - I,
Mouza - Lakhimpur, Assam on the premise that the provisions contained in Rule
1[2][c] of the Settlement Rules framed under the provisions of the Assam Land
and Revenue Regulation, 1886 ['the Regulation, 1886', for short] had been
violated in respect of the said 4 [four] Lessas out of the subject-plot and it was
further ordered to convert the said 4 [four] Lessas falling within the subject-plot
into Government land. The respondent no. 3 was directed to make necessary
corrections accordingly in the revenue records. It is further evident from the
impugned order dated 13.02.2012 that the said order was passed on the basis
of the documents furnished in a Report submitted by the then Circle Officer,
North Lakhimpur Revenue Circle [the respondent no. 3].
6. As the impugned order dated 13.02.2012 was passed entirely on the basis
of a Report of the respondent no. 3, it is necessary to look into the contents of
the said Report, which was in the form of an Order dated 09.06.2003. From the
Report/Order dated 09.06.2003, it transpires that Suraj Bordoloi, son of Late
Ananta Bordoloi claiming himself to be a co-pattadar of the subject-plot, filed a
petition stating that 4 [four] Lessas of land out of the subject-plot had been
transferred by him by way of sale to Jibon Dutta i.e. the original party-
respondent no. 4. Notices were thereafter served upon the parties including
Page No.# 6/12
Saranan Bordoloi. After service of notice, Saranan Bordoloi i.e. the husband of
the original writ petitioner appeared before the respondent no. 3 and objected
the petition filed by Suraj Bordoloi by stating that he did not transfer the
possession of the subject-plot to anyone. The respondent no. 3 upon perusal of
the document of the case records, found that the subject-plot under the Annual
Lease was not transferred by pattadar, Saranan Bordoloi but it was co-pattadar,
Suraj Bordoloi who had transferred 4 [four] Lessas out of the subject-plot to the
original party-respondent no. 4 i.e. Jibon Dutta. The Report/Order dated
09.06.2003 made mention of submission of a Report by the concerned Lot
Mandal. The respondent no. 3 had also reported after looking at the Report of
the concerned Lot Mandal to the effect that there was deletion of all other co-
pattadars from the Annual Lease and in the concerned Annual Lease, the name
of only Saranan Bordoloi, son of Late Ananta Bordoloi was recorded in respect
of the subject-plot. It was further reported that before correction in the revenue
records in respect of the Annual Lease in favour of Saranan Bordoloi, the land
was transferred to the original party-respondent no. 4. Observing so, the
respondent no. 3 had opined that from such background fact situation, it could
be concluded that there was violation of the provisions contained in Rule 1[2][c]
of the Settlement Rules framed under the Regulation, 1886 in respect of the 4
[four] Lessas of land falling within the subject-plot as the same was transferred
illegally. A suggestion was made to cancel the Annual Patta issued in respect of
the subject-plot. With such observations, the respondent no. 3 referred the
matter along with the case records to the office of the Deputy Commissioner,
Lakhimpur seeking approval to cancel the Annual Lease issued in respect of the
subject-plot and for conversion of the subject-plot into Government land.
Page No.# 7/12
7. The Settlement Rules have been framed under the Assam Land and
Revenue Regulation, 1886. The definition of 'Annual Lease' is provided in Rule
1[2][c] of the Settlement Rules. As per Rule 1[2][c] of the Settlement Rules, 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. The proviso to Rule 1[2][c] states 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 the Government or to a State-
sponsored Co-operative Society.
8. The petitioners' side has brought a Judgment dated 12.03.1996 passed by
the Court of learned Munsiff No. 2, North Lakhimpur in Title Suit no. 41/1991 on
record. In Title Suit no. 41/1991, Saranan Bordoloi was the plaintiff and Suraj
Bordoloi was one of the defendants. It is canvassed on behalf of the petitioners
that the subject-plot was the suit land in Title Suit no. 41/1991. From the
Judgment, it is noticed that the title suit was filed by Saranan Bordoloi for
permanent injunction to restrain the defendants from interfering with peaceful
possession of the plaintiff over the suit land which included the land under Dag
no. 183 of the Annual Lease. The said title suit was decreed in favour of the
plaintiff i.e. Saranan Bordoloi with a finding that he was in possession over the
suit land since 1965. The petitioners' side has also drawn attention to a copy of
the Jamabandi [Records of Rights], annexed to the writ petition, pertaining to
the subject-plot which has reflected that pursuant to the judgment and decree
Page No.# 8/12
passed in Title Suit no. 41/1991, the Additional Deputy Commissioner passed an
order on 30.11.1999 whereby he ordered deletion of names of other seven
pattadars including the name of Suraj Bordoloi, from Annual Patta no. 1
pertaining to Dag no. 183. The Additional Deputy Commissioner vide his order
dated 30.11.1999 had further ordered that in Annual Patta no. 1 pertaining to
Dag no. 183, that is, the subject-plot measuring 16 Lessas, only the name of
Saranan Bordoloi was to be retained and he directed correction of the land
records accordingly. It is, thus, the case of the petitioners' side that on and from
30.11.1999, it was only Saranan Bordoloi whose name was retained as the
pattadar in the Annual Patta no. 1 pertaining to Dag no. 183 i.e. the subject-plot
and from the judgment and decree dated 12.03.1996, it was established that it
was only Saranan Bordoloi who was in possession of the subject-plot since
1965.
9. On the other hand, it is the case of the original party-respondent no. 4 that
he took over possession of the subject-plot from Suraj Bordoloi prior to
correction of the name in Annual Patta no. 1 in the land records in favour of
Saranan Bordoloi. It is the contention of the original party-respondent no. 4 that
he took over possession of the subject-plot from Suraj Bordoloi for the purpose
of ingress and egress to an adjacent plot of Periodic Patta land measuring 1
Katha & 1 Lessa, which was purchased by him from Suraj Bordoloi by way of a
registered sale deed.
10. From a reading of Rule 1[2][c] of the Settlement Rules, it is clearly evident
that there is no right vested in a person holding annual lease to transfer or sub-
let to any other person and it would entail cancellation if any such transfer is
Page No.# 9/12
made by the lessee of the annual lease. The order dated 09.06.2003 of the
respondent no. 3 did not disclose as to when Suraj Bordoloi transferred the
possession of 4 [four] Lessas out of the subject-plot to the original party-
respondent no. 4 while observing, at the same time, Saranan Bordoloi did not
transfer the possession of the subject-plot in which the said 4 [four] Lessas is a
part, to the original party-respondent no. 4. Though it was observed therein that
it was before correction of the name in the annual lease in favour of Saranan
Bordoloi the subject-plot was transferred by Suraj Bordoloi to the original party-
respondent no. 4, the exact date when transfer of possession occurred was not
recorded in the impugned order. In the considered view of the Court, the
relevant date was 30.11.1999. Neither the Order/Report dated 09.06.2003 of
the respondent no. 3 nor the Order dated 13.02.2012 of the Additional Deputy
Commissioner, Lakhimpur which was based on the Report/Order dated
09.06.2003, had made any finding with regard to the relevant date vis-à-vis the
date of handing over of possession of 4 [four] Lessas of land out of the subject-
plot, measuring 16 Lessas, purportedly by Suraj Bordoloi to the original party-
respondent no. 4. Though the orders mentioned that the same were passed on
the basis of relevant documents, it was silent on the crucial aspect whether the
said authorities took into consideration the Judgment and Decree dated
12.03.1996 passed in Title Suit no. 41/1991 and the Order dated 30.11.1999
passed by the Additional Deputy Commissioner, Lakhimpur, as reflected in the
Jamabandi, ordering deletion of the name of Suraj Bordoloi and 6 others and
retention of the name of Saranan Bordoloi only in Annual Patta no. 1 pertaining
to Dag no. 183.
11. An order of cancellation of annual lease is permissible only when the annual
Page No.# 10/12
lease holder transfers the same in violation of the conditions of the annual
lease. This Court has observed that the limited right of user or the possessory
right conferred by the annual lease can be transferred and such transfers are
considered to be valid between the parties. It is, however, be subject to the
paramount title of the State. It is also settled that the rights of the State
Government in the annual patta land is not affected by any transfer when the
transferor is an annual lease holder [Ref : Mahim Ali [Md.] and others vs. Legal
heirs of Ramakanta Barman, 2015 [5] GLT 463]. Thus, any decision like the one
ordered by the impugned order dated 13.02.2012 for cancellation of annual
patta ought to have been based on a finding that on the date of transfer of
possession of 4 [four] Lessas of land out of the subject-plot, the transferor was
an annual lease holder.
12. An error apparent on the face of the proceedings, when it is based on
disregard to the provisions of Law, is amenable to the writ jurisdiction under
Article 226 of the Constitution of India. A tribunal or an authority may be
competent to enter upon an enquiry but in making an enquiry it may act in
disregard of the provision of law and in such situation, the power of judicial
review is exercisable to correct such error apparent on the face of the record. To
reach a finding about any violation of the provision of law contained in Rule 2[1]
[c] of the Settlement Rules, the authority had to reach a definite finding on the
foundational fact regarding the date of handing over of the possession of the
land measuring 4 [four] Lessas out of the subject-plot pertaining to Dag no.
183.
13. Since the Order dated 13.02.2012 of the Additional Deputy Commissioner
Page No.# 11/12
[Revenue], Lakhimpur which was based on the Report/Order dated 09.06.2003
of the Circle Officer, did not reflect any finding about the date of actual transfer
of possession of 4 [four] Lessas out of the subject-plot to the party-respondent
no. 4, by Suraj Bordoloi who was not a co-pattadar in Annual Patta no. 1 on and
after 30.11.1999, this Court is of the unhesitant view that the foundational fact,
that is, the date of actual transfer of possession, which was condition precedent
for rendering such a view, was absent. If the transfer of possession took place
after 30.11.1999, then Suraj Bordoloi might prima facie be not in a position to
transfer possession of 4 [four] Lessas of land since after 30.11.1999, he was no
longer a co-pattadar in Annual Lease no. 1 pertaining to Dag no. 183 and vice
versa. Therefore, the authorities should have reached a definite finding on the
foundational fact about the actual date of transfer of possession before ordering
cancellation of the Annual Lease. It is apparent on the face of the record, the
order dated 13.02.2012 passed by the Additional Deputy Commissioner
[Revenue], Lakhimpur has suffered from an infirmity qua Rule 1[2][c] of the
Settlement Rules, framed under the Regulation, 1886. In such view of the
matter, the same is found not sustainable and is liable to be set aside. It is
accordingly set aside.
14. With the setting aside of the order dated 13.02.2012, the matter stands
remanded to the office of the Deputy Commissioner, Lakhimpur which authority
shall re-visit the matter after giving adequate opportunities of hearing to the
parties including opportunity to submit supporting documents in support of their
respective claims. It is directed that the authority after affording such
opportunities to the parties and upon due consideration to the merits of their
respective claims and the provisions contained in Rule 1[2][c] of the Settlement
Page No.# 12/12
Rules, shall pass a speaking order in the matter afresh, within a reasonable time
period, preferably within a period of 3 [three] months, from the date of
appearance of the parties. In order to facilitate an expeditious consideration, the
parties are directed to appear before the Deputy Commissioner, Lakhimpur on
30.06.2023. Upon such appearance of the parties on 30.06.2023, the Deputy
Commissioner, Lakhimpur will fix a date of hearing of the parties and proceed
with the matter thereafter, accordingly.
15. With the observations made and directions given above, the writ petition is
allowed to the extent indicated above. It is made clear that none of the
observations in the present order shall be construed to be an expression of any
opinion of this Court with regard to possessory right of any of the contesting
parties or any other right or entitlement with regard to transfer of possession
pertaining to the plot of land under reference, which are to be substantiated by
the parties on the basis of cogent materials. Therefore, it is left open for the
competent authority, that is, the Deputy Commissioner, Lakhimpur to decide the
matter on its own merits and in accordance with law. There shall be no order as
to cost.
JUDGE
Comparing Assistant
