JUDGMENT
D. Biswas, J.
1. The power and authority of the Deputy Commissioner in according sale permission is in challenge in this petition. The petitioner being aggrieved by the under-valuation of his land by the Annexures – 1 to 5, has approached this Court for a Writ of Mandamus directing the Deputy Commissioner not to insist upon or grant any land transfer/ sale permission except in accordance with the Land Policy of 1989 and the Urban Land (Ceiling and Regulation) Act, 1976.
2. The petitioner with a view to dispose of his land within the Gauhati Municipal Corporation area applied to the Deputy Commissioner/ Kamrup for permission for sale of land on different occasions, and the Deputy Commissioner issued the permissions sought on 28.11.1995 and 16.9.1997. The Deputy Commissioner valued the different plots of land in between Rs. 30,000 to Rs. 40,000 per katha. It is pleaded that the permission for sale of land was also obtained by the petitioner on 20.3.1989 and no valuation was indicated therein enabling the petitioner to sell the said land on a consideration of Rs. 36,76,154. Dissatisfied with the valuation reflected in the permission for sale on the lower side, this petition has been initiated praying for the reliefs already captioned above.
3. I have heard Mr. P.C. Borpujari, learned counsel for the petitioner and Mr. K.C. Mahanta, learned State counsel.
4. First, let us deal with the question raised regarding the powers of the Deputy Commissioner to grant sale permission with market price indicated therein. In the additional affidavit, the respondent State has annexed the Government instructions issued by the Commissioner and Secretary in the Revenue Department on 8th March, 2000. This letter was issued by the Government with reference to the earlier instructions/ orders issued on 5.12.1989 and 27.12.1985 communicating the Government policy whereby restrictions have been imposed on transfer of land without prior approval of the Deputy Commissioner. By this letter, the Government clarified the policy in the following words :
“In view of the above, Govt. have decided to make it mandatory to have the prior permission from the Deputy Commissioner concerned for alienation of all types of land within their respective jurisdiction. This is in supersession of the previous instructions vide this Departments letters under references.
It is impressed here that on receipt of written application duly signed by both the seller and the purchaser, Deputy Commissioner will issue written permission positively within 45 days from the date of receipt of the application. In case the permission is rejected, grounds for rejecting the same should be specified. Deputy Commissioners may direct their subordinate revenue officers to furnish their clear comments about the present nature of use of the land, class of land, proposed use of the land, nationality and eligibility in cases of areas under Tribal Belts and Blocks, pending Court cases, if any, whether the land is involved in any ceiling case and whether the land is allotted land etc. Deputy Commissioners are requested to submit a ……statement based on the total number of applications received and total number of applications disposed showing clearly total number of applications pending beyond the specified time limit of 45 days and showing valid reasons for pending. They should ensure as District Registrar that no land sale deed is registered without their (Deputy Commissioners) prior approval.
It is mentioned there that for alienation of any land covered under Tenancy Khatian, a non-occupancy tenant shall have no rights to transfer or sublet any agriculture land or part thereof as laid down under Section 16 of Assam (Temporarily Settled/Areas) Tenancy Act, 1971 and in all cases involving tenanted land prior permission from Govt. is necessary.”
6. The contents of the above instructions read with Section 4 of the Assam Alienation of Land (Regulation) Act, 1980 and Section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 clearly show that the Deputy Commissioner enjoys enormous powers in allowing or refusing application for permission for sale. In order to appreciate this view, we may refer to the provisions of the different Acts referred to above. Sections 4 and 5 of the Assam Alienation of Land (Regulation) Act, 1980 are quoted below ;
“4. Restrictions on alienation. – No person shall without the previous sanction of the Collector obtained in such manner as may be prescribed, make any alienation of any land in favour of any person when such person is –
(a) an individual who is not a citizen of India ; or
(b) a body corporate or firm, of which the majority of the directors, shareholders or partners, as the case may be, are not citizens of India or which is incorporated formed or registered outside India.
5. Withholding of sanction. – (1) The sanction referred to in Section 4 may be withheld if-
(a) the transferee is, in the opinion of the Collector, unsuitable, or
(b) the proposed alienation is in the opinion of the Collector, prejudicial to the public interest,
(2) Where the Collector withholds any sanction under this section, he shall record his reasons for doing so.
(3) An appeal shall lie from the order of the Collector withholding sanction under Sub-section (1) within sixty days from the date of such order to the State Government.”
The restrictions imposed with powers to the Collector clearly indicate that no alienation of any land in favour of any person is permissible without previous sanction by the Collector.
6. Section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 provides that no person holding a vacant land within the ceiling limit shall transfer such sand by way of sale, mortgage, gift, lease or otherwise except after giving notice in writing of the intended transfer to the competent authority. The competent authority shall have the first option to purchase such land on behalf of the State Government for a consideration to be assessed under the provisions of the Land Acquisition Act, 1894 or any other corresponding law in force. If the State Government does not exercise the option within a period of sixty days from the date of receipt of the notice, it shall be presumed that the competent authority has no objection to the transfer of the land.
7. The provisions of the above section clearly indicate that the owner of a vacant land within the ceiling limit in the urban area has to first notify his intention of sale with option to the competent authority to buy the same. The provisions of Section 26 of the Act of 1976 and the provisions of Sections 4 and 5 of the Act of 1980 do not require the Collector to notify the valuation of the land proposed to be sold. Even Section 23 of the Guwahati Metropolitan Development Authority Act, 1985, which requires a seller to obtain permission from the Guwahati Metropolitan Development Authority, does not speak of valuation. Therefore, it is clear that the statutory provisions in force in respect of alienation of land within the urban area do not indicate that the Collector while granting permission for sale has to reflect the valuation of the land proposed to be sold. The letter dated 8th March, 2000 issued by the Commissioner and Secretary is also silent in this respect.
8. The question of fixation of valuation of land comes for levy of premium on settlement of land both in urban and rural areas as specified by the State Government in the letter dated 18th May, 1994. Apart from raising of premium for the land to be settled, valuation is also relied upon for the purpose of registration of deeds in case of transfer by way of sale, mortgage, lease, gift etc. This letter further directs that the Deputy Registrar/Senior Sub-Registrar/Sub-Registrar, Guwahati shall be kept informed of the market value of different categories of land in different areas specified therein for the purpose of registration only. The question of valuation of land for the purpose of granting permission for sale is not contemplated in this letter.
9. Going through the provisions of law and the Government instructions issued from time to time, it would appear that permission has to be obtained for sale of land within the greater Guwahati area from the Collector (Deputy Commissioner). There is no requirement that the Government valuation of the land proposed to be sold will be a part of the permission. The letter dated 18th May, 1994 issued by the Deputy Secretary clearly indicates that the valuation shown therein is meant for the purpose of registration only. The registering authority is required to verify the valuation incorporated in the transfer deeds before registration with the valuation assessed by the authority in respect of different areas from time to time. This is intended to prevent evasion of duty by the unscrupulous sellers and buyers.
10. Petitioner’s grievance is well understood. While granting permission by the Annexures -1 to 5, the Deputy Commissioner has also given the Government valuation of the land as communicated by the letter dated 18th May, 1994 which is far below the actual market price. This valuation has been a constraint on the part of the writ petitioner in securing the actual market price of the land proposed to be sold at a much higher price. It is not known whether the State Government has after 18th May, 1994 assessed the valuation of land afresh for different areas as categorized in the letter dated 18th May, 1994. There is escalation of the price of land every year in the greater city of Guwahati and, therefore, any valuation given in the permission for sale on the basis of market value fixed in 1994 will certainly be disadvantageous to the seller. From this point of view, the petitioner’s grievance appears to be justified.
11. In the result, the writ petition is disposed of and the sale permissions (Annexure – 1 to 5) are hereby quashed. The Deputy Commissioner, Kamrup is directed to re-issue the permission without indicating the market price. The Deputy Commissioner is further directed to take up the matter with the appropriate authority for assessment of the market price, year to year leaving no scope for any grievance on the part of any seller and, at the same time, protecting the financial interest of the State. Realistic assessment of valuation of land is indispensable as undervaluation based on backdated assessment is prejudicial to the interest of revenue of the State. Alternately, the State Government may like to prescribe levy of stamp duty for the purpose of registration on the basis of area of the land proposed to be sold, i.e., on divisions like square foot, square meter etc. This measure, the Court presumes, will prevent evasion of registration fees.
12. Registry is directed to forward a copy of this judgment to the Commissioner and Secretary to the Govt. of Assam, Revenue Department and the Deputy Commissioner, Kamrup.