WP(C) 2059/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER This writ petition is directed against the order passed by the Assam Board of Re venue granting mutation in favour of the respondents and thereby upholding the o rder of mutation passed by the Additional Deputy Commissioner. 2. The land measuring 4 Kathas 3 lechas which is a part of land of 1 Bigha 1 Katha 5 lechas covered by Dag No. 811(Old)/1301(New) of KP Patta Nos. 108/621, 478 (Old)/478 (New) of Sahar Guwahati, Part-II, Mouza Guwahati belonged to Late Kunja Bihari Banerjee, the predecessor in interest of the present petitioners. 3. Kunja Bihari died in the year 1941 and on his death the aforesaid land a longwith other properties devolved upon the petitioners and accordingly their na mes have been mutated as pattadars in the land and patta has been issued in thei r names as per the last re-settlement operation. The petitioners have been payin g the land revenue regularly. 4. During the lifetime of Kunja Bihari, he granted lease of the said entire land in the year 1951 in favour of one Suresh Chandra Dutta (since deceased). A registered Kabuliyat was executed by said Sri Dutta in favour of Kunja Bihari o n 1.3.1931, agreeing to occupy the said land as tenant for a period of 10 years and accordingly he continued to occupy the said land till the year 1941. 5. Sri Surech Chandra Dutta transferred his leasehold right over the land o f 2 kathas 2 lechas out of the aforesaid entire land in favour of Prof. Jadulal Mukharjee, who became a lessee under Kunja Bihari and Sri Dutta continued to occ upy as the lessee the remaining portion of the land measuring 4 kathas 3 lechas. Sri Dutta conveyed his leasehold interest of the land measuring 4 kathas 3 lech as together with structures standing thereon in favour of one Sri Suresh Sen in the year 1949. 6. Said Sri Suresh Sen transferred his leasehold right of the land alongwit h structures to one Sri Sudhir Ranjan Bose, the predecessor in interest of the p resent respondents who continued to possess the said land as tenants under the p etitioners. 7. One Sri Bireswar Banerjee, the predecessor in interest of the petitioner s No. 9 and 10 alongwith the other petitioners filed the Title Suit No. 182/1960 against said Sudhir Ranjan Bose, the predecessor in interest of the respondents No. 1 to 4 for his ejectment from the said land measuring 4 kathas 3 lechas. Th e suit ended in S.A. No. 51/1967 wherein this Court held that Sri Sudhir Ranjan Bose’s status was a tenant under the petitioners in respect of the said land. 8. According to the petitioners, the respondents suppressing all the aforem entioned facts illegally instituted Mutation Case No. 217/2001-02 before the Cir cle Officer, Guwahati Revenue Circle behind the back of the petitioners claiming mutation of their names in respect of the said land measuring 4 kathas 3 lechas by right of purchase and inheritance. In the proceeding, the order for mutation was passed on 7.3.2002, which according to the petitioners, the respondents obt ained in collusion with the officials of the Circle office, Guwahati Revenue Cir cle and without serving any notice on the petitioners. 9. When the petitioners came to know about the aforesaid order dated 7.3.20 02 only in the month of June, 2004, they immediately filed an application in KRC Case No. 44/2004-01, which was started on detection of anomalies in the order d ated 7.3.2002. By the said application, the petitioners prayed for impleading th em as parties and then to hear them. 10. The matter was fixed on 17.7.2004 and though the petitioners, through th eir engaged Advocate filed document of title, land revenue paying receipts etc. in respect of the land, the matter was adjourned to 26.7.2004, on which date, th e Circle Officer upheld the earlier order dated 7.3.2002. being aggrieved, by th e order dated 7.3.2002 upheld by order dated 26.7.2004, the petitioners preferre d R.A. No. 17/2004-05 before the Deputy Commissioner, Kamrup (M). The matter was heard by the Additional Deputy Commissioner, Kamrup (M) and passed the order da ted 30.6.2005 granting mutation in favour of the respondents. 11. After the aforesaid order passed by the Additional Deputy Commissioner, the petitioners approached the Assam Board of Revenue by way of filing an appeal under Regulation 147 read with 151 of the Assam Land and Revenue Regulation mak ing a grievance against the same. The appeal was registered and numbered as Case No. 177 RA (K)/05. The appeal having been dismissed by order dated 27.10.2006 a nd thereby upholding the order passed by the Additional Deputy Commissioner, the petitioners have filed the instant writ petition. 12. The case of the respondents is that, their predecessor in interest Late Sudhir Ranjan Bose purchased the plot of land measuring 11.10 Ares from Sri Sure sh Chandra Sen. Sudhir Ranjan Bose and on his death the respondents being the su ccessors claimed their mutation by right of inheritance in the said plot of land . During the pendency of the appeal before the Assam Board of Revenue, Smt. Tapa shi Bose, wife of Late Sudhir Ranjan Bose expired on 18.6.2006 and the responden ts herein being her daughters stepped into her shoes. 13. According to the petitioners the impugned orders are per-se illegal inas much as mere right of tenancy cannot confer any right on the respondents to get their name mutated in respect of the land. In this connection, the petitioners h ave referred to the findings of this Court in the aforementioned S.A. No. 51/196 7, by which it was observed that the predecessor in interest of the respondents Late Sudhir Ranjan Bose was a tenant under the plaintiffs. In the said judgment reported in ALR (1973) 15 (Bireswar Banerjee & Ors. Vs. Sudhir Ranjan Bose & Ors .), it was observed that the predecessor in interest of the respondents was a te nant within the meaning of Section 3 (g) and he was also entitled to protection under Section 5 (1) (a) of the Assam Non-Agricultural Urban Areas tenancy Act, 1 955. 14. In the counter affidavit filed by the respondents, the aforesaid fact of the predecessor in interest of the respondents being tenant within the meaning of the provisions of the Act has been admitted. However, it is their stand that nowhere in the Act there is any prohibition that a tenant cannot get his name mu tated over the land. It is their case that they being in possession of the land after lawfully acquiring the leasehold right are protected under Section 5 of th e Act and consequently are also entitled to get their names mutated. 15. I have heard Mr. P.K. Roy Choudhury, learned counsel for the petitioners as well as Mr. B.K. Goswami, learned Sr. Counsel assisted by Mr. P.K. Kalita, l earned counsel for the respondents. I have also heard Ms. R. Chakraborty, learne d Additional Sr. Govt. Advocate. While Mr. Roy Choudhury, learned counsel for th e petitioners submitted that the respondents being tenants under leasehold right cannot become Pattadars and/or get their names mutated, Mr. B.K. Goswami, learn ed counsel representing the respondents submitted that since the respondents are entitled to protection from eviction from the land, there is nothing wrong in m utating their names. He submitted that mere inclusion of name in the Patta, the respondents will not become the owners of the land, but such inclusion will be a notice to probable purchaser of the land that the respondents are not evictable from the land in view of the protection to them under the provisions of the Act . During the course of hearing he even made the concession that the respondents would not object to any modification to that extent in respect of the order of m utation. 16. The Assam Non-Agricultural urban Areas Tenancy Act, 1955 is an act to re gulate in certain respects the relationship between landlord and tenant in respe ct of non-agricultural land in the urban areas of the State of Assam. Section 3 (g) defines tenant as a person who holds land under another person, other than G overnment and who is, but for a special contract, liable to pay rent for that la nd to the latter, and include a person who derives his title from a tenant, and a person who continues in possession of any land after termination of his tenanc y in respect of that land. 17. Section 5 of the Act provides protection to such tenant from eviction, w hich reads as follows: 5. protection from eviction - (1) Notwithstanding anything in any contr act or in any law for the time being in force - (a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is ent itled to build, and has in pursuance of such terms actually built within the per iod of five years from the date of such contract, a permanent structure on the l and of the tenancy for residential or business purposes, or where a tenant not b eing so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescenc e of the landlord, the tenant shall not be ejected by the landlord from the tena ncy except on the ground of non-payment of rent; [Provided that where the tenant having built a permanent structure within the p eriod specified above and for any of the purposes mentioned therein, renews the tenancy on expiration of the original contract he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed Contract: provided further that a person having a right, title and interest over a permane nt structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stand, shall not be ejected except on the ground of non-payment of rent. ] (b) where a tenant has effected improvements on the land of the tenancy unde r the terms whereof he is not entitled to effect such improvements, the tenant s hall not be ejected by the landlord from the land of the tenancy unless compensa tion for reasonable improvements has been paid to the tenant. (2) No tenant shall be ejected by his landlord from the land of the tenancy exce pt in execution of a decree for ejectment passed by a competent Civil Court. (3) No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree and if the tenant pays into the Court whose duty it is to execute the decree the entire amo unt payable under the decree within the aforesaid period, the Court shall record the decree as satisfied. 18. As per the aforesaid provision, a tenant on fulfilling the conditions pr ecedent cannot be ejected from the land except on the ground of non-payment of r ent. Further, no tenant shall be ejected by his landlord from the land of the te nancy except in execution of a decree for ejectment passed by a competent Civil Court. The fact that the predecessor in interest of the respondents was a tenant under the predecessor in interest of the petitioners is an admitted one. Howeve r, it is the case of the respondents that since they are protected from ejectmen t, there is nothing wrong in mutating their names in respect of the land. Accord ing to them, there being nothing in the Act debarring such mutation, the impugne d orders have been rightly passed. 19. In the aforesaid decision in Bireswar Banerjee, the fact that the predec essor in interest of the respondents was a tenant with the right of protection a s envisaged under Section 5 (1) (a) of the Act finds mention. Thus, the question which arises for consideration is as to whether the respondents can get their n ames mutated as Pattadars alongwith the landlord. From the materials on record, it is clear that since 2.3.31 onwards Kunja Bihari and after his death his succe ssors including the present petitioners have no possession over the land in ques tion, but it is the respondents, who have been possessing the land since a long time. It is in this context, Mr. Goswami, learned counsel for the respondents su bmitted that the mutation of the names of the respondents or inclusion of their names as pattadars being not to the exclusion of the names of the landlords and/ or by way of substituting their names, the petitioners need not be apprehensive. He even conceded that if the names of the respondents are specifically mentione d as tenants under the provisions of the aforesaid Act of 1955, the respondents will have no objection. 20. In view of the above, this writ petition is disposed of providing that t he impugned orders pertaining to mutation of the names of the respondents in res pect of the land shall be only to the extent of incorporation of their names in the Patta as tenant under the landlord, which will be sufficient notice to the p robable purchaser(s) of the land about the tenancy under the Act of 1955. Such i ncorporation of the names of the respondents shall not be on the same footing li ke that of the landlord pattadars and/or to the exclusion of the landlord pattad ars and/or to their substitution. 21. While providing the above, it is placed on record that Section 5 of the Act of 1955 does not bring the tenants to the fold of the landlords, more so, wh en such tenancy is not unqualified and a tenant can be evicted on account of non -payment of rent. The impugned order will have no effect on the right of the pet itioners as the landlords in respect of the land and the inclusion the names of the respondents in the patta and/or mutation of their names will be only to the extent of their protection under Section 5 of the Act as the tenants which will also serve as a notice to the probable purchaser(s) of the land that the land is under occupation of protected tenant under Section 5 of the Act. 22. The impugned orders of mutation stand modified to the above extent. 22. Writ petition is disposed of in terms of the above order. There shall be no order as to costs.