WP(C) 2676/2007 BEFORE HON’BLE MR. JUSTICE BP KATAKEY The petitioners, in whose favour the annual patta No. 5, which was initially iss ued in the name of their predecessor-in-interest, has been converted to the peri odic lease pursuant to the order dated 2.1.2007 passed by the Govt. of Assam in Revenue (Settlement) Department allowing such conversion of the land measuring 1 bigha 4 kathas 10 lechas covered by dag No. 77 of annual patta No. 5 of village NO. 98 Numalijalah, Mouza- Sils Sundari Ghopa in the Kamrup rural district, by the present petition has challenged the communication dated 6.12.2006 issued by the Addl. Chief Secretary in the Govt. of Assam, Revenue Department to all the D eputy Commissioners, (except BTAD and Hill districts) relating to imposition of ban for transfer of newly settled land for ten years from the date of issuance o f the order of settlement or from the date of taking over of possession, which e ver is later. 2. An annual lease was granted in favour of the predecessor-in-inte rest of the petitioners in respect of the aforesaid land, pursuant to which annu al patta No. 5 was issued. The petitioners after the death of their father inher ited the land in question and such annual lease continued in their names. Subseq uently, pursuant to the application filed by the petitioners, an order dated 2.1 .2007 was passed by the Govt. of Assam, Revenue (Settlement) Department for conv ersion of the annual lease to periodic one subject to payment of 50% of the land value of Rs. 1,05,666.66 per bigha. Such concession on the payment of the premi um was given as the petitioners belong to scheduled tribes community of Assam. T he petitioners accordingly on 5.1.2007 paid the premium of Rs. 75,288/- and ther eafter their names were recorded in the Revenue Record (Jamabandi) on 11.1.2007 containing a clause that the said land cannot be transferred for a period of ten years in view of the Govt. Notification in that regard. The petitioners have th erefore, filed the present writ petition challenging the communication dated 6.1 2.2006 (Annexure - 5 to the writ petition) on the ground that such communication is violative of the provision of Assam Land and Revenue Regulation, 1886 (in sh ort the 1886 Regulation), and contending inter alia that they intend to sell the said land to respondent No. 5, Birendra Choudhury. 3. It is an admitted position of fact that the land in respect of w hich the annual lease was issued and which was subsequently converted to periodi c lease is an agricultural land and was settled for agricultural purpose in favo ur of the petitioners. 4. Mr. Medhi, learned counsel for the petitioners referring to the different provisions of 1886 Regulations and also the Settlement Rules framed un der the said Regulation has submitted that since after conversion of the annual lease to periodic lease, the petitioners have acquired the status of ’land owner ’ within the meaning of Section 3(g) of the 1886 Regulation, and thereby acquire d permanent heritable and transferable right of use and occupancy over the land, in view of section 9 thereof, such right of the petitioners to transfer the lan d settled in their favour cannot be taken away by issuing an executive instructi on as has been done by the Addl. Chief Secretary vide communication dated 6.12.2 006, more so when no specific condition has been imposed in such settlement as r equired under Section 9(c) of the 1886 Regulation. Mr. Medhi submits that as the restriction imposed by the communication dated 6.12.2006 is violative of the ri ght of the petitioners under Section 9 of the 1886 Regulation, it requires inter ference of this Court. It has further been submitted that issuance of such commu nication dated 6.12.2006 amounts to the imposition of a condition which was not there at the time of making the settlement in favour of the petitioners. 5. Mr. P Sen Daka, learned State counsel appearing for the responde nt Nos. 1 to 4 on the other hand has submitted that the right of the land holder under the 1886 Regulation is not absolute and the Govt. in view of Section 9(c) can impose condition on such settlement and in the instant case it is evident f rom the Revenue Record (Jamabandi) that the condition prohibiting transfer of th e land for ten years has been attached to the settlement made by way of conversi on of annual lease to periodic lease. Mr. Deka, therefore, submits that the comm unication dated 6.12.2006 issued by the Addl. Chief Secretary does not in any wa y interfere with the right of the petitioners in view of the conditional settlem ent made by the Govt. It has further been submitted by Mr. Deka that the conditi on imposed and as, reflected in the Revenue Record (Jamabandi) has not been chal lenged by the petitioners. The learned State counsel has further submitted that the sole purpose for imposition of the condition is to prevent the agricultural land from being alienated for non-agricultural purpose so that the object for wh ich the settlement is made is not defeated. 6. Mr. Medhi, learned counsel for the petitioners in reply has subm itted that since the petitioners have challenged the communication dated 6.12.20 06 issued by the Addl. Chief Secretary, it is not required that the petitioners should also challenge the conditions of settlement as reflected in the Revenue R ecords. 7. The parties are not in dispute that the annual lease was granted in favour of the predecessor-in-interest of the petitioners in respect of the l and in question. Such annual lease has subsequently been converted to periodic l ease, for which the Govt. of Assam in Revenue (Settlement) Department issued the communication dated 2.1.2007 allowing such conversion subject to payment of the reduced amount of the premium as the petitioners belong to scheduled tribe comm unity of Assam. The purpose for which such lease was granted is for using the sa me for agricultural purpose. The petitioners want to transfer the land after get ting such settlement in favour of the respondent No. 5 without, however, disclos ing the purpose for which the land would be utilised after such transfer. The ac quisition of the status of the ’land holder’, by virtue of such conversion/settl ement, on payment of the premium, within the meaning of Section 3 (g) of the 188 6 Regulation is not in dispute. 8. Section 9 of 1886 Regulation confers permanent heritable and tra nsferable right of use and occupancy of the land settled in favour of the land h older subject to - (a) the payment of all revenue, taxes, cesses and rates from time to time le gally assessed or imposed in respect of the land; (b) the reservation in favour of the Government of all quarries and of all m ines, minerals and mineral oils, and of all buried treasure, with full liberty t o search for and work the same, paying to the land-holder only compensation for the surface damage as estimated by the Deputy Commissioner; and (c) the special conditions of any engagement into which the land-holder may have entered with the Government. 9. It appears from Section 9 of the 1886 Regulation that the land-h olders permanent heritable and transferable right of use and occupancy is subjec t to the special condition of any engagement into which the land holder may have entered with the Govt. as provided in Clause (c) thereof. 10 The Revenue Record (Jamabandi), which is annexed as Annexure I t o the writ petition reveals that a condition has been imposed that the said land cannot be transferred for the period of ten years. Such condition is similar to the conditions imposed by the impugned communication dated 6.12.2006 issued by the Addl. Chief Secretary informing all the deputy Commissioners relating to the imposition of such condition from the date of issuance of the order of settleme nt or from the date of taking over of possession, which ever is later. While the petitioners have challenged the communication dated 6.12.2006 they have not, ho wever, challenged the conditions as reflected in the Revenue Record (Jamabandi). Such condition can be imposed by the Govt. under Section 9 (c) of the 1886 Regu lation. That apart the very object of imposing such condition is to prevent the transfer of land by the settlement holder who have been settled for a specific p urpose and in this case for cultivation and also to prevent from transferring th e agricultural land for non agricultural purpose. The issuance of the communicat ion dated 6.12.2006, therefore, has not violated any right of the petitioners un der the 1886 Regulation, such condition having already been incorporated in the Revenue Record (Jamabandi). 11. In view of the above, I do not find any merit in the writ petiti on and hence the same is dismissed. No cost.