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2004 DIGILAW 319 (GAU)

Matiram Mikir v. Assam Board of Revenue

2004-05-06

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. Common questions of fact and law are involved in both the writ petitions. The writ petitions are also by and between the same parties. Relief sought for are also consequential to one another. Arguments were also advanced analogously. In view of this position and as agreed to by the learned Counsel for the parties, the two writ petitions are proposed to be disposed of by this common judgment and order. 2. The real controversy centers around the acquisition of ownership right of the landlord by a tenant under him. In W.P.(C) No. 6103/1998 filed by the Petitioner Sri Matiram Mikir who is the Respondent No. 4 in W.P.(C) No. 7693/2001 has assailed the legality and validity of the order of the Additional Deputy Commissioner, Kamrup in Misc. Case No. 1/1987 affirmed by the Assam Board of Revenue by its impugned judgment and orders dated 29.08.96 and 01.09.98 passed in Case No. 56 RA(K)/1991 and in Case No. 9 RA(K) (RVW)/1996. On the other hand the Petitioners in W.P.(C) No. 7693/2001 who are the Respondents in Civil Rule No. 6103/1998 have assailed the legality and validity of the judgment and order dated 05.10.2001 passed by the Assam Board of Revenue in Case No 7RA(K)/1987. 3. By the impugned judgment dated 12.12.89 passed by the ADC, Kamrup in Misc. Case No. 1/87 on the basis of an application filed by the Petitioners in W.P.(C) No. 7693/2001, the Khatian issued to the Writ Petitioner in Civil Rule No. 6103/1998 has been cancelled. This judgment was carried on appeal before the Assam Board of Revenue and the same was rejected by judgment and order dated 29.08.96. Thereafter, a review application was filed which was also rejected by judgment and order dated 01.09.98. For convenience sake the Civil Rule No. 6103/1998 shall be referred to as "the 1st petition" and the W.P.(C) No. 7693/2001 shall be referred to as "the 2nd petition". 4. In the 1st petition, it is the case of the Petitioner that one Sri Beliram Das obtained Patta in respect of 12 Bigha 4 Katha 3 Lechas of land in Dag No. 16 of Patta No. 90 of village Dharandha of Beltola Mouza. 4. In the 1st petition, it is the case of the Petitioner that one Sri Beliram Das obtained Patta in respect of 12 Bigha 4 Katha 3 Lechas of land in Dag No. 16 of Patta No. 90 of village Dharandha of Beltola Mouza. According to the Petitioner he was in occupation of the land and eventually under an arrangement he became the tenant of said Baliram Das which was duly recorded in the revenue record prior to 1957. He had been paying rent to the landlord through the share of paddy. After promulgation of the Assam Temporary Settled Areas Tenancy Act, 1971, the Petitioner was issued Khatian by the Revenue Authority in respect of the land. Sri Beliram Das expired in the year 1969 prior to promulgation of the aforesaid Act of 1971. The Petitioner filed an application under Section23 of the said Act for declaration of his ownership right over the land which on being rejected, he approached the Assam Board of Revenue. On failure to get redressal of his grievance he approached this Court by filing a Writ Petition which was registered and numbered as Civil Rule No. 1016/1887. The Writ Petition was disposed of by judgment and order dated 26.11.94 remanding back the matter to the Assam Board of Revenue for a decision on ascertainment of the following facts: (i) Whether the Petitioner acquired the occupancy tenancy right, before inclusion of the land within Gauhati Municipal Corporation. (ii) Whether the second proviso to Section 21 of the Act is attracted on the facts of the case. (iii) The land in question having been included long back, in the Gauhati Municipal Corporation, whether the provision of Section 50 (forfeiture of tenancy) or Section 51 (grounds for ejectment) is attracted in respect of the land in question. (iv) Whether the provisions of Urban Land (Ceiling and Regulation) Act, 1976, is attracted in respect of the land in question. 5. In the meantime, the Petitioner in the 2nd petition who are the Legal heirs of late Beliram Das became the Pattadars and their names also entered in the revenue records. They filed an application before the ADC, Kamrup for cancellation of Khatian granted in favour of the Petitioner in the 1st petition. The application, which was registered and numbered as Misc. Case No. 1/87 was allowed ordering cancellation of the Khatian, granted in favour of Sri Matiram Mikir. They filed an application before the ADC, Kamrup for cancellation of Khatian granted in favour of the Petitioner in the 1st petition. The application, which was registered and numbered as Misc. Case No. 1/87 was allowed ordering cancellation of the Khatian, granted in favour of Sri Matiram Mikir. The order so passed on 12.12.89 was carried on appeal before the Assam Board of Revenue by filing Case No. 56 RA, which was dismissed by judgment dated 29.08.96. Thereafter a review application was filed which was registered and numbered as Case No. 9 RA(K)(RVW)/96 which was also dismissed by judgment and order dated 01.09.98. This has led to filing of the 1st petition by Sri Matiram Mikir. 6. In the 2nd petition, the Petitioners who are the Respondents in the 1st petition have assailed the legality and validity of the judgment and order dated 05.10.2001 passed by the Assam Board of Revenue in Case No. 7RA (K)/87 which was passed after remand of the matter by this Court by judgment and order dated 26.11.94 in Civil Rule No. 1016/1987 referred to above. Prior to passing of this judgment, the ADC, Kamrup by his order dated 27.10.86 passed in Tenancy Case No. 707/85 rejected the claim of the Petitioner in the 1st petition for ownership right against which the Petitioner preferred the aforesaid appeal i.e. Case No. 7 RA(K)/87 which was dismissed by the Board of Revenue. However, this Court remanded back the matter to the Board of Revenue for a fresh decision upon ascertainment of the aforesaid 4 factual aspects of the matter. Thereafter the impugned judgment and order dated 05.10.2001 came into being recognizing the right of the 1st Petitioner and setting aside the order dated 27.10.86 passed by the ADC in Tenancy Case No. 707/85. By the said judgment the Deputy Commissioner, Kamrup has been directed to take necessary steps in respect of the application under Section 23(1) of the Tenancy Act, 1971 which provides for conferment of ownership right on the tenant. 7. I have heard Mr. P.C. Deka, learned Senior Counsel assisted by learned Counsel Mr. S.K. Medhi and Mr. N. Deka appearing for the Petitioners and Respondents in the 1st and 2nd petition respectively. I have also heard Mr. S. Medhi assisted by Mr. S. Baruah, learned Counsels appearing for the Petitioner in the 1st petition. Mr. 7. I have heard Mr. P.C. Deka, learned Senior Counsel assisted by learned Counsel Mr. S.K. Medhi and Mr. N. Deka appearing for the Petitioners and Respondents in the 1st and 2nd petition respectively. I have also heard Mr. S. Medhi assisted by Mr. S. Baruah, learned Counsels appearing for the Petitioner in the 1st petition. Mr. A.M. Majumdar, learned Senior Counsel assisted by learned Counsel Mr. S. Baruah, on behalf of the Respondent No. 4 in the 2nd petition. learned Counsel for the parties extensively argued making reference to the various provisions of Assam Land Revenue Regulation, 1886, Assam (Temporarily Settled District) Tenancy Act, 1971, Assam Land Revenue Reassessment Act, 1936, the Assam (Temporarily Settled District) Tenancy Act, 1935, the Assam Municipal Act, 1956, Guwahati Municipal Corporation Act, 1971 etc. 8. The basic thrust of argument of Mr. Deka, learned Senior Counsel was that the Petitioner in the 1st petition did not have any occupancy right so as to entitle him to acquire ownership right of the landlord. Referring to the notification dated 01.10.66 issued in exercise of the power conferred by Sub-section (4) of Section 3 of the Assam Land Revenue Re-settlement Act, 1936 read with Rule 64(a) of Settlement Rules framed under the Assam Land and Revenue Regulation, 1956 by which the Governor of Assam was pleased to declare the areas of the villagers named in the notification to be town land falling within greater Guwahati which included Dharandha, Mr. Deka submitted that for claiming ownership right the Petitioner must show that the Petitioner acquired occupancy right prior to 1966. Placing reliance on the provisions of the Assam Land Revenue Reassessment Act, 1936, Mr. Deka submitted that the Petitioner being an' Adhiar", there is no question of acquiring any occupancy right by the Petitioner and consequential claim for ownership right. According to him at no point of time the Petitioner was an occupancy tenant, Mr. Deka submitted. He further submitted that the land in question having been declared as "town land" in 1966, the Petitioner must show that he acquired legal and valid occupancy right prior to 1966 so as to claim ownership right. He placed reliance on the following decisions: (i) (1971) 1 SCC 486 : U.O.I. v. Tarachand Gupta and Brothers. (ii) AIR 1954 SC 340 : Kiran Singh v. Chaman (iii) (2003) 6 SCC 230 : Dwarka Prasad Agarwal and Anr. He placed reliance on the following decisions: (i) (1971) 1 SCC 486 : U.O.I. v. Tarachand Gupta and Brothers. (ii) AIR 1954 SC 340 : Kiran Singh v. Chaman (iii) (2003) 6 SCC 230 : Dwarka Prasad Agarwal and Anr. v. B.D. Agarwal and Ors. (iv) (2001) 10 SCC 264: K.S Bhoir v. State of Maharashtra and Ors. (v) (1994) 1 SCC 1 : S.P. Chengal Varaya Naidu v. Jagannath and Anr. (vi) AIR 1962 SC 745 : Mathra Prasad and Ors. v. State of Punjab and Ors. (vii) (1999) 3 SCC 494 : Jalandhar Improvement Trust v. Sampuran Singh (viii) (2001) 2 SCC 62 : A.P. Pollution Control Board II v. Prof. M.V. Nayudu and Ors. (ix) (2004) 2 SCC 56 : Prabha Shankar Dubey v. State of M.P. (x) (1969) 3 SCC 415 : Wire Netting Stores and Anr. v. Delhi Development Authority and Ors. (xi) (2003) 5 SCC 1 : M.T.W. Tenzing Namgyal and Ors. v. Motilal Lakhotia and Ors. 9. Mr. A.M. Majumdar and Mr. S. Medhi, learned Counsel appearing for the Petitioner in the 1st petition who is the Respondent in the 2nd petition advanced their elaborate argument supporting the judgment and order of the Assam Board of Revenue and assailed the legality and validity of the order of the ADC, Kamrup cancelling the Khatian granted in favour of the Petitioner. They submitted in reference to some earlier proceedings that the entire action on the part of the ADC, Kamrup was founded on malafide and colourable exercise of power. Referring to the various provisions of the 1971 Act, they submitted that the right accrued prior to coming into force of the provisions of the said Act and the 1966 Notification cannot be obliterated. Referring to Section 3(13) of the 1971 Act, it was submitted that rent is payable even by a fixed quantity of produce. It was emphasized in reference to Section 3(17) of the said Act that the Petitioner was a tenant and thus was rightly issued with the Khatians in respect of the land arid that the Petitioner is entitled to get ownership right of the landlord by operation of law. They placed reliance on two decisions i.e. AIR 1954 Gau 109 and 1990 (1) GLR 32 (Mohendra Lal v. Ramprasad Padarath and Shri Niranjan Barua v. the State of Assam and Ors. 10. They placed reliance on two decisions i.e. AIR 1954 Gau 109 and 1990 (1) GLR 32 (Mohendra Lal v. Ramprasad Padarath and Shri Niranjan Barua v. the State of Assam and Ors. 10. I have considered the rival submissions made by the learned Counsel for the parties. I have also perused the materials on record. Even leaving aside the case of the Petitioners in the 2nd petition that the Petitioner in the 1st petition was never a tenant under them and that he surreptitiously obtained a Katcha Khatian taking advantage of long 16 years of ailment of late Beliram Das from 1952 to 1969, it is an admitted position as per the own case of the Petitioner in the 1st petition that he used to pay share of the crops to the landlord as rent. In this connection the averments made in paragraphs 2 and 13 of Civil Rule 6103/1998 and in paragraphs 3 of the affidavit-in-opposition in W.P.(C) No. 7693/2001 and the rent receipts depicting receipt of share of paddy as rent may be referred to. It is in this connection the provisions of the Assam (Temporarily Settled Districts) Tenancy Act, 1935 have been referred to. Section 4 of the said Act defines occupancy raiyats as the raiyats having a right of occupancy in the land held by them. Privileged raiyats are the raiyats entitled to hold at rates of rent not exceeding the revenue rates. Section 13 of the said Act speaks acquisition of occupancy right by a person, who for a period of 12 years has continuously held land as a raiyats. Section 13(6) of the said Act states that for the purpose of acquisition of occupancy right, a person who, under the system generally known as "adhi", "barga" and "bhag" cultivates the land of another person, on condition of delivering a proportion of the crop to that person is not a raiyat. "Rent" has been defined to mean what ever is lawfully payable or deliverable in money or kind or partly in money and partly in kind by a tenant to his landlord on account of the use or occupation of land held by the tenant. "Rent" has been defined to mean what ever is lawfully payable or deliverable in money or kind or partly in money and partly in kind by a tenant to his landlord on account of the use or occupation of land held by the tenant. It is the own case of the Petitioner in the 1st petition that he continued to occupy the land on payment of share of the crops and if that be so Section 13(6) of the aforesaid Act of 1935 clearly excluded the Petitioner from the definition of raiyat. Consequently, there is no question of acquisition of occupancy right and for that matter consequential ownership right. 11. The rent receipts annexed to the affidavit-in-opposition filed by the Petitioner in the 1st petition in W.P.(C) No. 7693/2001, also speak of furnishing of the share of the crops, even in 1979. Thus the system continued at least till 1979 by which time the 1966 Notification declaring the land in question to be a "town land" and the Assam (Temporary Settled District) Tenancy Act, 1971 came into operation. Prior to that by a Gazette Notification dated 18.03.71 the land in question was included in Guwahati Municipal Area. On 27.04.78 the Khatian was issued to Matiram Mikir prior to which on 05.03.73 the land was notified to be Guwahati Municipal land. After passing away of Beliram Das on 14.01.69 the name of his wife Smti. Damayanti Das was mutated in the land records in Mutation Case No. 127/68 on 27.05.69. Smti. Damayanti Das, the mother of the Petitioners in the 2nd petition passed away on 29.10.83 and thereafter the names o f the Petitioners in the 2nd petition was in(sic)aded in the Patta. 12. The Petitioner in the 1st petition will have to establish that he had acquired occupancy right in respect of the land prior to 1966 in which year the land in question was declared to be a "town land" and in case of town land the provisions of 1971 Act is not applicable which have been clearly spelt out under Section 2 of the Act. Although various provisions of the 1971 Act were pressed into service to bring home the argument that the Petitioner in the 1st petition acquired occupancy right as a tenant and consequently became entitled to be conferred with ownership right, same cannot help the Petitioner once the provisions of the Act are expressly excluded from being applied to "town land". There is no dispute that the land in question was included as a "town land" by the aforesaid Notification dated 01.10.66. The provisions of the 1971 Act may be applicable in respect of land, which even if included, as "town land" would not extinguish the right already acquired by a tenant. In the instant case, as per the provisions of Section 13(6) of the 1935 Act, the Petitioner in the 1st petition was not a raiyat and consequently could not have acquired any occupancy right as per the provisions of Section 13 of the said Act. This will naturally lead to the conclusion that the Petitioner will also not be entitled to acquisition of ownership right under Section 23 of the 1971 Act. 13. The Assam Land and Revenue Regulation, 1886 defines "town lands" as follows: 64. Definitions-In this Section of the Rules, unless there is anything repugnant in the subject or context: (a) Town land means any land within an area declared or deemed to be a municipality or notified area under the Assam Municipal Act, 1923 (Assam Act 1 of 1923) and any other land which the State Government may declare under the Assam Land and Revenue Regulation in accordance with the provision of Section 3 of the Land Revenue Re-assessment Act (Assam Act VIII of 1936), to be town land. The Assam Land Revenue Re-assessment Act, 1936 also defines "town land" as follows: 'Town land' means (a) Any land included within the limits of any city constituted under the provisions of any law for the time being in force, (b) Any land included within a Municipality or notified area defined in the Assam Municipal Act, 1956 (Assam Act XV of 1957). (c) Any other land which the State Government may declare as town land [under the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886) or in accordance with the provisions of Section 3 of this Act. (c) Any other land which the State Government may declare as town land [under the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886) or in accordance with the provisions of Section 3 of this Act. Section 3(4) of the 1936 Act empowers the State Government to issue notification by declaring the area or any part thereof to be town land for the purposes of the said Act. According to Section 2(e) of the Assam (Temporarily Settled District) Tenancy Act, 1935, the Act does not apply to land included in Civil Station. Again Section 3(18) of the 1971 Act defines "town land" as follows: To be quoted from page 14. 18. "town lands" means any land within an area declared or deemed to be a Municipality or notified area under the Assam Municipal Act, 1956. 14. The land in question was declared to be "town land" by the aforesaid notification of October, 1966. In such a position the provisions of the 1971 Act are not applicable which are expressly excluded from being applied to the "town land", if that be so, the provisions of 1971 Act are not applicable in the instant case, under which the Petitioner in the 1st petition has claimed the benefit of ownership right as per provisions of Section 23 of the Act. Section 5 of the 1971 Act speaks of acquisition of occupancy right. On the other hand Sections 5 and 13 of the 1935 Act deal with modes of acquisition of rights by privileged raiyats and occupancy raiyats respectively. For acquisition of occupancy right one will have to be a privileged raiyats as defined in Section4 of the 1935 Act. In both the writ proceedings, the Petitioner in the 1st petition having admitted that he used to deliver share of the crop to the landlord and thus was not a raiyat as per the provisions of 13(6) of the 1935 Act. Thus the issuance of the Khatian was inconsequential. It is in this context, it was argued that the Khatian itself is nonest and void ab-initio and it was rightly ordered to be cancelled. The requirements as envisaged under the Act of 1935 towards conferment of occupancy right having not been fulfilled, the Petitioner could not have acquired the privilege of a privileged raiyats and consequently could not have acquired the occupancy right. The requirements as envisaged under the Act of 1935 towards conferment of occupancy right having not been fulfilled, the Petitioner could not have acquired the privilege of a privileged raiyats and consequently could not have acquired the occupancy right. Even in the Khatian of 1978, 1/5th of crop share paid to the landlord was indicated. 15. It has already been noticed that the provisions of 1971 Act do not apply to "town land". Again according to Section 3(6) of the Act "land" means "Agricultural land" and "Agricultural land" means land used for agricultural purpose or purposes subservient thereto. "Personal cultivation" as defined under Section 3(10) of the Act means cultivation by the person himself, or by member of his family or by hired labourers on fixed remuneration payable in cash or kind but not in crop share, under personal supervisions of the person himself or any member of his family. The definition of "town land" as provided for under the Act has already been quoted above. Section 4(1) of the 1971 Act classifies tenants as (i) Occupancy Tenant and (ii) Non-occupancy Tenant. The "privilege tenants" under 1935 Act will be the Occupancy Tenant under the 1971 Act. As per provisions of Section 4(3) of the said Act there shall be no new under tenants. As per provisions of Section 5 of the said Act, a person who for a period of not less than 3 years has continuously held land as a tenant shall have a right of occupancy in that land. Section 21 of the 1971 Act provides for acquisition of ownership rights by the occupancy tenant personally cultivating the land. Second proviso to Section 21 protects the land from acquisition in respect of widow, minor, physically or mentally disabled person or member of the defence services. Section 23 lays down the procedure for acquisition of ownership right. 16. Under the provisions of 1971 Act, tenant must be a occupancy tenant to be eligible to apply for the acquisition of ownership right under Section 23 of the Act, and an occupancy tenant is one who holds the land for a continuous period of three years as a tenant in agricultural land only. It has already been seen that the 1971 Act does not apply to the land in question same being a "town land". It has already been seen that the 1971 Act does not apply to the land in question same being a "town land". Consequently, the Petitioner in the 1st petition cannot claim to be a tenant under the 1971 Act. He, to be eligible to apply for acquisition of the rights of the ownership under Section 23 of the 1971 Act, has to acquire the rights of an occupancy tenant prior to 01.10.66 i.e. prior to the land being declared as "town land" which means that he has to be a tenant under the Assam Tenancy Act, 1935. It has already been noticed as to how the petitioner in the 1st petition comes within the purview of exception to the term raiyat (tenant) as provided for under Section 13(6) of the said Act. The factum of delivering a share of the crop by the said Petitioner to the landlord is not in dispute and rather has been specifically pleaded and exhibited by him in the writ proceedings. Thus he was within the definition of "Adhiar" and was not a tenant under the 1935 Act not to speak of being an occupancy tenant. If this is so he cannot claim to be an occupancy tenant under the 1971 Act. 17. An argument was advanced on behalf of the Petitioner in the 1st petition that the definitions of "tenant" and "rent" permit payment of rent in kind or cash or partly in cash and partly in kind and even includes payment of share of paddy and that payment of a share of paddy does not make a tenant an "Adhiar". At the same time, it was admitted, though said to be an ambiguity that an "Adhiar" like that of the Petitioner in the 1st petition cannot be said to be a raiyat. However, the position was sought to be explained by making a submission that to remove the ambiguity, the 1935 Act was repealed by the 1971 Act and Section 3(17) of the 1971 Act specifically included "Adhiar" and all other categories of persons paying rent by way of share of paddy. It was further argued that even assuming that the Petitioner in the 1st petition was not a tenant being an "Adhiar" under the 1935 Act, after the repeal of the same enacting 1971 Act, he being in continuous possession of the land, he becomes a tenant by operation of law. It was further argued that even assuming that the Petitioner in the 1st petition was not a tenant being an "Adhiar" under the 1935 Act, after the repeal of the same enacting 1971 Act, he being in continuous possession of the land, he becomes a tenant by operation of law. It was also argued that the 1971 Act was enacted to enlarge and widen the rights and protections to the persons/tenants whose such rights and protections became clouded/doubtful because of the narrow definition of tenant in the 1935 Act, which excluded the "Adhiars" from the category of tenants. It was in this context the decision of this Court in Niranjan Barua and Mohendra Lal v. Ramprasad Padarath (supra) were pressed into service. There is no quarrel with the proposition that the rights conferred on an occupancy tenant by Section23 of the 1971 Act in respect of a land which subsequent to the acquisition of the occupancy right come to be included in a "town land" would not take away such right. However, as noticed above, same is not the case here and the Petitioner in the 1st petition failed to establish his such right as per his own admission as noticed above. 18. With the adoption of the above arguments by the learned Counsel for the Petitioner in the 1st petition, an ambiguity is sought to be brought in to the otherwise clear and unambiguous provisions of the 1935 Act. Further, there is also no challenge and cannot be so to the provisions of 1935 Act. Section 13(6) of the 1935 Act laid down in clear and unambiguous term that a person who under the system generally known as "adhi", "barga" and "bhag", cultivates the land of another person, on condition of delivering a portion of the crop to that person, is not a raiyat (tenant). It has already been noticed as to how the Petitioner in the 1st petition has admitted that he used to deliver a share of paddy to the owner of the land and thus was an "Adhiar". Therefore, he is not a tenant under the 1935 Act much less an occupancy tenant entitling him to the benefits under the 1971 Act. It has already been noticed as to how the Petitioner in the 1st petition has admitted that he used to deliver a share of paddy to the owner of the land and thus was an "Adhiar". Therefore, he is not a tenant under the 1935 Act much less an occupancy tenant entitling him to the benefits under the 1971 Act. The argument that the 1971 Act recognizes "Adhiars" as tenants has no application in the instant case inasmuch as the land in question was declared to be a "town land" in 1966 i.e. much before coming into operation of 1971 Act. There is nothing to show that the Petitioner had acquired the right of occupancy in respect of the land prior to 1966. 19. Beliram Das the original landlord expired in 1969 and the name of his wife Smti. Damayanti Das was mutated in the land records in 1969 as the owner of the land. The Khatian dated 24.07.78 allegedly issued to the Petitioner shows the name of the owner of the land as late Beliram Das whereas at that relevant point of time it was Smti. Damayanti Das who was the owner of the land which appears to be erroneous on the face of it. As noticed above, the Khatian clearly depicts payment of rent in the form of share of the produce. 20. In view of the above factual and legal position, the Khatian could not have been issued to the Petitioner in the 1st petition and the same is non est and void ab-initio in the eye of law. It is in this context, it was argued that having regard to such a legal position the validity of the same can be challenged whenever and wherever is sought to be challenged. It was also argued that the Khatian being contrary to the statute, there cannot be any estoppel from challenging the same on the sound principle of law that there cannot be estoppel against statute. In the same vein, it was also argued that when a procedure for doing a particular thing has been laid down by a statute, the same has to be done in that manner only or not at all and that in the instant case, the Khatian having been issued in contravention of the provisions of law, the same is not sustainable. To buttress the arguments the aforesaid decisions were pressed into service. To buttress the arguments the aforesaid decisions were pressed into service. 21. The first five decisions as mentioned in paragraph 8 above, were relied upon to bring home the principle that an order passed by a Court without jurisdiction is a nullity and that any action taken pursuant thereto or in furtherance thereof would also be a nullity. In the case of S.P. ChengalvarayaNaiyudu (supra) the Apex Court held that the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. It was held that a judgment/decree which is a nullity can be challenged in any Court even in collateral proceedings. The case of Mathra Prasad, Jalandhar Improvement Trust (supra) and A.P. Pollution Control Board (supra) were pressed into service to buttress the argument that the principle of promissory/equitable estoppel cannot be invoked to protect illegalities and that there cannot be any estoppel against a statute. The decisions in M/s. Waire-Netting Stores and Prabha Sankar Dubey (supra) were cited and relied upon to emphasis on the well known principle that if a thing is required to be done in a particular way it should be done in that way only. 22. All the aforesaid decisions have been relied upon by the learned Counsel for the Petitioner to put emphasis on his argument that the issuance of the Khatian in favour of the Petitioner in the 1st petition is a nullity and was not issued in accordance with the provisions of the aforesaid statutes and thus cannot create any right in favour of the Petitioner. The factual and legal position relating to the right of the Petitioner have been discussed above. Once having held that the Petitioner was not a raiyat, there is no question of conferment of any occupancy or ownership right on him. Thus I do not find any infirmity in the impugned order dated 12.12.89 passed by the ADC Kamrup in Misc. Case No. 1/1987 and in the judgments and orders dated 29.08.96 and 01.09.98 respectively passed by the Assam Board of Revenue in case No. 56RA(K)/1991 and Case No. 9RA(K) (RVW)/1996 affirming the same. Consequently, the writ petition in Civil Rule No. 6103/1998 is liable to be dismissed which I accordingly do. 23. Case No. 1/1987 and in the judgments and orders dated 29.08.96 and 01.09.98 respectively passed by the Assam Board of Revenue in case No. 56RA(K)/1991 and Case No. 9RA(K) (RVW)/1996 affirming the same. Consequently, the writ petition in Civil Rule No. 6103/1998 is liable to be dismissed which I accordingly do. 23. This leads us to the 2nd petition in W.P.(C) No. 7396/2001 in which the legality and validity of the impugned common judgment and order of the Assam Board of Revenue in Case No. 55 RA(K)/1991 and 56 RA(K)/1991 is under challenge. The Board of Revenue proceeded in the matter on the premises that the right accrued to the Petitioner in the 1st petition could not have been taken away and/or extinguished in any manner. In that context it referred to the letter dated 18.06.84 issued by the Government of Assam in the Revenue Department. The Board also simply relied upon the judgment of this Court passed on 08.11.89 in Civil Rule No. 179/84 and 125/84 to arrive at the finding in favour of the Petitioner in the 1st petition without adverting to the fact situation of the present case as noticed above. It heavily relied upon the so-called Khatian issued in favour of the Petitioner in the 1st petition. While doing so it did not deal with the various provisions of the statutes as enumerated and discussed above. It also failed to appreciate that as per the own admission of the Petitioner he used to pay proportionate share of the crop to the landlord and thus was an "Adhiar" under the landlord disentitling him from the rights and privileges of a privileged raiyats which eventually and otherwise would have culminated to an occupancy tenant under the 1971 Act entitling him to claim the right of ownership. The Board ought to have decided first as to whether any right had accrued to the Petitioner under the 193 5 Act so as to make applicable the provisions of 1971 Act. Unfortunately this was not done. The Board also failed to appreciate that matter pertaining to cancellation of the Khatian by the impugned order passed by the ADC was already subjudiced before this Court by way of the 1st petition and ought to have awaited for the outcome of the same. Unfortunately this was not done. The Board also failed to appreciate that matter pertaining to cancellation of the Khatian by the impugned order passed by the ADC was already subjudiced before this Court by way of the 1st petition and ought to have awaited for the outcome of the same. It has already been held that the Petitioner in the 1st petition was not a tenant and thus not eligible to apply for acquisition of the ownership right of the landlord under Section 23 of the 1971 Act. 24. For the foregoing discussions and reasons the impugned judgment and order dated 05.10.2001 passed by the Assam Board of Revenue in case No. 7 RA(K)/1987 is liable to be set aside and quashed which I accordingly do. Consequently, the writ petition in W.P.(C) No. 7693/2001 stands allowed. 25. In view of the above the writ petition in Civil Rule No. 6103/1998 stands dismissed and the writ petition in W.P.(C) No. 7693/2001 stands allowed. However, there shall be no order as to cost.