Abdul Gani Sarkar vs Assam Board of Revenue and Others

P.K. Goswami, J.—This Rule was obtained against the order of the Board of Revenue allowing the application of the Respondents u/s 81 read with Section 151 of the Assam Land and Revenue Regulation, hereinafter called the Regulation.

The Respondents'' case before the Board was that they purchased by registered sale deed some time in 1961 the periodic patta lands of the defaulting pattadar who had defaulted in respect of two annual patta lands covered by annual pattas 144 and 127, respectively. There was default with regard in land revenue of these annual pattas for the years 1366 and 1367 68 B. S. recpectively. Attempt to attach and sell the movables of the defaulting pattadar was abortive. It is rather intriguing and curious that a defaulting pattadar, who owned as much as 19 Bighas of periodic patta land and was in a position to sell it in 1961 for Rs. 8000/- and odd, was not found to be owning sufficient movables to meet the demand of land revenue of about Rs. 49/- or so. At any rate, after the attempt to sell the movables failed, the Deputy Commissioner sold the periodic patta land of the defaulting pattadar u/s 70 of the Regulation. The purchasers of the periodic patta land, who are the Respondents herein applied to the Board as noted above and secured the impugned order in their favour.

Mr. Chaudhury, the learned Counsel for the Petitioner, questions this order of the Board on the ground of maintainability of the petition u/s 81 of the Regulation before the Board after the expiry of one year, which is the time limit mentioned in Section 81. The petition before the Board was filed on 9-12-66 when at the time of admission the question of limitation was left open by the Member who admitted the same. Since however, the petition was also purported to be one u/s 151 of the Regulation finally the Board dealt with it as a petition u/s 151 and passed the impugned order. Mr. Chaudhury submits that no petition u/s 151 of the Regulation was maintainable after the expiry of three years from the date of the sale as in this case. It is sufficient to point out that there is no question of limitation u/s 151 of the Regulation, which we may read:

The Board, a Deputy Commissioner, a Settlement Officer and a. Survey Officer may call for the proceedings held by any officer subordinate to it or him, and pass such orders thereon as it or he thinks fit.

This is sufficiently a wide power and could be invoked in an appropriate case and the question of limitation would not affect the jurisdiction of the Board. The objection on this score is, therefore, without foundation.

The Board took the view that Section 70 could not be invoked in selling the estate in question as the arrears were in respect of an estate which was not the defaulting estate. According to the learned Board. Section 91 of the Regulation was the appropriate section and since there are two different procedures laid down for sale under the two sections namely, Sections 70 and 91, the one adopted by the Deputy Commissioner was not applicable in the case of an estate which is not the defaulting estate. This matter was heard earlier and we thought that we should hear the State in connection with the applicability of Section 91 of the Regulation since that section has been held by the Board which is the highest revenue authority in the State, to be applicable in a case of this description, and we gave notice'' to the State and wanted to hear the learned Advocate-General who is now in attendance.

The question that arises for consideration is whether this auction sale which was held is permissible u/s 70 of the Regulation. The answer would be clear by reading the section itself:

When an arrear has accrued in respect of a permanently-settled estate or of an estate in which the settlement-holder has a permanent, heritable and transferable right of use and occupancy, the Deputy Commissioner may sell the estate by auction:

Provided that:

* * * *

It is absolutely clear from a mere reading of Section 70 that the defaulting estate, which is liable to be sold u/s 70 must be either a permanently-settled estate or an estate in which the settlement-holder has a permanent, heritable and transferable right of use and occupancy. The defaulting estate in the instant case being land covered by annual patta, there is no permanent, heritable and transferable right of use and occupancy with regard to these lands. It is, therefore clear that sale could not be held under the provision of Section 70 of the Regulation, and, as such, the entire proceedings of sale are void.

Next question is whether the Board is correct in further stating that Section 91 of the Regulation was applicable in a case of this description and as the procedure relating to sale of estates for realisation of arrears of land revenue has not been complied with, the order is liable to be set aside. We may read Section 91(1):

(1) If an arrear cannot be recovered by any of the foregoing processes, and the defaulter is in possession of any immovable property, other than the estate in respect of which the arrear has accrued, the Deputy Commissioner may proceed against any of that other property situated within his district according to the law for the time being in force for the attachment and sale of immovable property under the decree of a Civil Court.

We have heard the learned Advocate General on the question whether Section 91 can at all be invoiced in dealing with cases of default in respect of annual patta land. The learned Advocate General contends that on terms this section would apply to both the annual patta land as well as periodic patta land. We have given our anxious consideration to this submission, but bearing in mind the language of Section 91 and particularly the provision that this section would be applicable only after the foregoing processes had failed, we are of the opinion that the defaulting estate, which is contemplated u/s 91, cannot refer to an annual patta land. The foregoing processes mentioned in Section 91 must relate to three earlier processes in Chapter V. Those are to be found under Sections 69, 69A and 70. The learned Advocate General concedes that Section 70 is not applicable when the arrears are in respect of annual patta land. We have, therefore, to consider whether when any of the three processes are not available, if the Deputy Commissioner intends to use them in respect of a particular defaulting estate, Section 91 can at all be invoked. We are clearly of the opinion that any of the foregoing processes mean whichever processes are applicable when the Deputy Commissioner wants to use them. In other words, with respect to the defaulting estate the Deputy Commissioner must be in a position to use all the three foregoing processes under sections 69, 69A and 70. Since, however, it is conceded that Section 70 could not be invoked in this case because the land is an annual patta land, it is clear that Section 91 cannot apply to annual patta land where the section could not be invoked. We are. therefore, clearly of the opinion that the learned Board''s view on the point that Section 91 was applicable and that the order was bad only because the procedure laid down u/s 91 was not complied with cannot be held to be correct. The order of the Deputy Commissioner is bad because the entire proceedings are misconceived. There could be no sale in law u/s 70 of the Regulation in this case nor could a sale take place of a non-defaulting estate for arrears of rent of an annual patta land u/s 91 of the Regulation. In any view of the matter, the order of sale passed by the Deputy Commissioner is invalid and was correctly set aside by the Board although the aforesaid reasons given by the Board are not correct as we have indicated above.

In the result, the application fails and the Rule nisi is discharged, but in the entire circumstances of the case, there will be no order as to costs.

We are grateful to the learned Advocate General for his assistance in the matter.

M.C. Pathak, J.

I agree.