Judgement GOSWAMI, C. J.:- The State Government acquired the zamindari of what is described as Hasanpur Estate under Section 3(1) of the Assam State Acquisition of Zamindaris Act, 1951, as amended, on 24-3-1960. The petitioners along with the opposite parties 6 to 19 claim to be in possession of the land by cultivating different varieties of paddy thereon as raiyats under the erstwhile proprietors of Hasanpur Estate. They were paying rent regularly to the erstwhile proprietors since the year 1356 B.S. corresponding to 1949. They also state that they had got rent receipts from their landlord. After the land vested in the Government under Section 4 of the Assam State Acquisition of Zamindaris Act, hereinafter referred to, as the Act, the Manager of the Acquired Estate received rent from the petitioner as will appear from Annexure I to the petition at page 31. This rent was realised by the Manager of the Acquired Estate on 28-3-1961. There was some objection from the Anchalik Panchayat and it is said that certain enquiries were made. Even an application under Section 144, Criminal P.C. was made at the instance of the Panchayat President which, however, was not pursued. In the above background the petitioner received a notice dated 23-7-1968 from the Additional Deputy Commissioner, Silchar, purported to be made under Section 8(2) of the Act. This notice was in Form A of the Rules as Section 8(2) provides for a notice to precede eviction. The petitioners lodged objection to the notice and stated that they were holding the land and cultivating the same for a number of years from the proprietor by paying rent to him. Even so, the Additional Deputy Commissioner, who treated this show cause notice of the petitioners as a miscellaneous appeal, disposed of the same on 14-10-1969 rejecting the same by a very short order. The order shows that the Additional Deputy Commissioner was taking note of the report furnished by the Sub-divisional Officer, Karimganj and the copy of the Khatian and also a letter of the Revenue Officer and Settlement Officer, Karimganj to the President, Badarpur Anchalik Panchayat. It does not appear from the order what these reports contained but he appears to be satisfied therefrom and the objection was held to be untenable. It is against these two orders dated 23-7-1968 and 14-10-1969 that the Rule was obtained by the petitioners on 17-11-1969. It does not appear from the order what these reports contained but he appears to be satisfied therefrom and the objection was held to be untenable. It is against these two orders dated 23-7-1968 and 14-10-1969 that the Rule was obtained by the petitioners on 17-11-1969. This Court staved the eviction and further proceedings when it issued Rule nisi. 2. The question that comes up for consideration is whether the notice, which is purported to be one under S.8(2) of the Act, is valid against the petitioners who claim themselves as raiyats or tenants under the erstwhile landlord. In order to appreciate this question it is appropriate to notice some provisions of this Act. Section 3 provides for a notification declaring the vesting of the estate or tenure in the State under the Act. Section 4(1) reads as under:- "Notwithstanding anything contained in any law for the time being in force or in any agreement or contract, express or implied, on the publication of the notification referred to in sub-section (1) of S.3, all rights and interests of the proprietor or the tenure-holder named in the said notification in the estate or the tenure including his interests (i) in land with its sub-soil and mines and minerals, (ii) in forests and fisheries (iii) in hats, bazars and ferries together with the right to realise tolls from them, (iv) in any building or part of a building used primarily as office or cutcherry for collection of rent of such estate or tenure and (v) his rights to realise rent, royalty, cess, fees and tolls in respect of any such interests, shall, save as otherwise expressly provided in this Act, cease and. such estate or tenure including such rights shall vest absolutely in the State free from all encumbrances in accordance with the provisions of this Act with effect from the first day of the agricultural year next following the date of the publication of such notification. such estate or tenure including such rights shall vest absolutely in the State free from all encumbrances in accordance with the provisions of this Act with effect from the first day of the agricultural year next following the date of the publication of such notification. * * * *" We may only note sub-section (6) of Section 4 which is material for our purpose: (6) Until further legislation by the State Legislature in this behalf, every raiyat or non-agricultural tenant holding land in any estate or tenure, which has vested in the State, shall hold the same directly under the State on the same terms and conditions as immediately before the date of vesting and all rents, cesses, royalties and other dues accruing in respect of lands comprised in such estate or tenure after the date of vesting shall be payable to the State Government and all such dues shall be recoverable as arrears of land revenue". We need not quote the two provisos appended to this sub-section. It is also necessary to note the definition of "encumbrance" in Section 2 (ja):- "(ja) encumbrance in relation to estates and rights of proprietors or tenure-holders does not include the rights of a raiyat or non-agricultural tenant". When, therefore, the acquired estate vests in the Government and Section. 4 states that it vests absolutely free from all encumbrances, the rights of a raiyat or a non-agricultural tenant are preserved. Bearing in mind these provisions we may now read Section 8(2), under which the impugned action has been taken:- "8(2) The Deputy Commissioner may eject a mortgagee, a lessee or any other person who may be in possession of the whole or part of any such estate or tenure or any buildings vested in the State, and may take whatever steps that may be necessary for ejecting such person or preventing any breach of the peace; provided that the ejectment shall be preceded by notice served in the manner prescribed". Section 8(2) cannot be invoked against a raiyat whose interests are protected under Section 4(6). Mr. Kataki, the learned Counsel appearing on behalf of the State, does nut dispute this position. He, however, submits that the petitioners are not tenants or raiyats as claimed by them. He also states that the petitioners are said to be not in possession as it appears from paragraph 3 of the counter-affidavit. Mr. Kataki, the learned Counsel appearing on behalf of the State, does nut dispute this position. He, however, submits that the petitioners are not tenants or raiyats as claimed by them. He also states that the petitioners are said to be not in possession as it appears from paragraph 3 of the counter-affidavit. We are, however, surprised that this submission is made that the petitioners are not in possession since it is on the basis of their possession that the notice has been given to them for vacating the land in dispute. Besides, paragraph 3 of the counter-affidavit does not go to show that there is a clear denial of the factum of possession asserted by the petitioners in paragraph 5 of the petition. At any rate, paragraph 3 of the counter-affidavit is only sworn to as per information derived from the records and nothing is shown whereby we can assume that the petitioners were not in possession at the material time. Since it is clear that the petitioners have been in possession for a number of years on payment of rent to the erstwhile proprietor, the rent which was also received by the Manager of the Acquired Estates admittedly in the year 1961, there is a clear case for a proper enquiry by the Deputy Commissioner before an order of eviction can be made. It docs not appear from the impugned order dated 14-10-1969 or from any paper produced from the records that the Additional Deputy Commissioner at all considered the factors which are relevant for consideration in disposing of an objection made by a raiyat against an eviction notice under Section 8(2) of the Act. Since under Section 4(6) the rights of tenants or raivats are preserved in terms, the provisions of that section must be kept in mind by the Deputy Commissioner at the time of disposal of an objection of the nature we find in this case. We are, therefore, satisfied that the impugned order is not a proper order where the officer can be said to have applied his mind in disposing of the application. The order dated 14-10-1969 is hereby quashed but the notice dated 23-7-1968 remains along with the objection dated 26-8-1968 which has been filed by the petitioners. The petitioners objection dated 26-8-1968 shall be adjudicated by the Deputy Commissioner in accordance with law in the light of the observations made herein-above. The order dated 14-10-1969 is hereby quashed but the notice dated 23-7-1968 remains along with the objection dated 26-8-1968 which has been filed by the petitioners. The petitioners objection dated 26-8-1968 shall be adjudicated by the Deputy Commissioner in accordance with law in the light of the observations made herein-above. 3. The application is accordingly allowed. The matter is remanded to the Deputy Commissioner, We will, however, make no order as to costs. 4. M. C. PATHAK, J.:- I agree. Application allowed.