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Gauhati High Court · body

2016 DIGILAW 556 (GAU)

Bikram Phukan v. State of Assam

2016-06-16

HRISHIKESH ROY

body2016
ORDER : Heard Mr. S.P. Roy, learned counsel for the petitioner. Also heard Mr. P.S. Deka, the learned Govt. Advocate appearing for the official respondent Nos.1—4. The private respondents Nos.5—9 are represented by Mr. P.K. Deka, the learned counsel. 2. The question here is whether the declaration of ownership rights in favour of the occupancy tenant (khatian holder) was rightly ordered under Section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as the “Tenancy Act”). The application for ownership right was made by Jogen Ch. Boro, on account of the Khatian No.166 relating to land measuring 4 bighas 3 kathas 17 lechas, covered by Dag No.118 and that application was granted, in the absence of any objection from the patta holders Boloram Phukan, Nripendra Ram Phukan and Giribala Devi. The application for acquisition of ownership rights was filed in Form No.5 and was signed by the applicant and it was registered as the Tenancy Case No.586/1984. Case Background 3.1 When the claim for ownership right was made by the khatiandar, the Addl. D.C., Kamrup directed an enquiry on whether the applicant-tenant is personally cultivating the land in order to determine whether he is eligible to acquire the ownership right. Objection from the patta holder was also sought on the application of the occupancy tenant. After receipt of the appropriate report on the eligibility of the applicant to acquire the ownership right under Section 23 of the Tenancy Act, an order was passed on 03.05.1986, wherein it was observed that the concerned land is included within the Guwahati Municipal Corporation area. But since the Khatian was obtained long back on 01.10.1959 by the predecessor Patela Boro and then by the legal heirs Naren Boro and 3 others on 14.08.1975, it was found that the application in respect of the land within the GMC area is maintainable. Hence it was declared on 3.5.1986 (Annexure-4) that the applicant Jogen Boro is entitled to ownership right under the Tenancy Act, by paying due compensation to the patta holders. 3.2 This declaration made on 03.05.1986 by the Extra Assistant Commissioner was left un-finalized for long, since a blanket stay order was passed by the Addl. D.C., Kamrup on 15.10.1988 in Case No.727/1984, whereby all claims in respect of town area lands under the Tenancy Act, were kept on hold. 3.2 This declaration made on 03.05.1986 by the Extra Assistant Commissioner was left un-finalized for long, since a blanket stay order was passed by the Addl. D.C., Kamrup on 15.10.1988 in Case No.727/1984, whereby all claims in respect of town area lands under the Tenancy Act, were kept on hold. But when the High Court in the case of Sadau Assam Pattadar Sangha vs. State of Assam, reported in (1990) 1 GLR (NOC) 32, cleared the way for declaration of the right of the occupancy tenants whose rights had crystallized prior to 4.3.1973 and the Supreme Court dismissed the resultant SLP(C) No.8503/1990 on 28.09.1995, the final declaration was made in the Tenancy Case No.586/1984. Then the Addl. D.C., Kamrup declared that the right of the khatian holder subsists under the Tenancy Act. Since the Khatian No.166 was in joint name of 4 brothers and 3 of them consented to declaration of ownership right in favour of the applicant khatian holder, Jogen Ch. Boro, the application for ownership right was granted by the Addl. D.C. on 12.02.2003 (Annexure-4). 3.3 Following the declaration given in favour of the occupancy tenant, he deposited the compensation amount in govt. treasury on 2.6.1986 and accordingly the ownership declaration of 12.02.2003 was published in the Assam Gazette on 05.03.2003, in favour of the applicant tenant Jogen Boro for the land covered by Dag No.118, Patta No.143 of the patta holders, Balen Ram Phukan, Nripendra Ram Phukan and Smt. Giribala Devi. 3.4 The declaration made under Section 23 of the Tenancy Act was not challenged within the limitation period of 60 days prescribed under Section 67 of the Tenancy Act. But eventually one of the 3 patta holders, Nripendra Ram Phukan filed an appeal before the Assam Revenue Board under Section 147 of the Assam Land and Revenue Regulation, 1886 read with Section 67 of the Tenancy Act, to challenge the Addl. D.C.’s order in the Tenancy Case No.586/1984. It was stated in the appeal that the appellant was unaware of the tenancy case and came to learn about it only on 25.11.2004 when he visited the office of the Deputy Commissioner, for some other work. After learning of the declaration of ownership rights, the appellant engaged a lawyer to file an appeal in the Assam Board of Revenue, but it was claimed that the appeal was never filed by the engaged lawyer. After learning of the declaration of ownership rights, the appellant engaged a lawyer to file an appeal in the Assam Board of Revenue, but it was claimed that the appeal was never filed by the engaged lawyer. But the appellant failed to disclose the name of that lawyer, who was allegedly entrusted to file the appeal. 3.5 Eventually the belated appeal of the patta holder was admitted on 18.12.2006, by keeping the point of limitation open. At the first instance, the Assam Revenue Board allowed the patta holder Nripendra Ram Phukan’s challenge through the judgment dated 12.04.2007 (Annexure-12). While granting relief, the Revenue Board observed that the notice in the tenancy case was received for the patta holder, by one Hemen Phukan, but it was not served on the appellant Nripendra Ram Phukan. It was also observed that the Deputy Commissioner is the competent authority under the Tenancy Act to declare ownership right and here the order was not passed by the designated officer. It was also noted that there was no determination on the categorization of the land and determination on the claim of the cultivating tenant. On this basis, the order passed in the Tenancy Case No.586/1984 was quashed by the Revenue Board. 3.6 The aggrieved khatian holder Jogen Boro then filed a review application, where it was projected that notice was duly served on the family member Hemen Phukan of the patta holders and if they were aggrieved, they could have filed appeal within the limitation period. But since they failed to take any action to challenge the declaration made on 03.05.1986 and 12.02.2003 respectively, in favour of the occupancy tenant, the belated challenge should not be admitted. Accepting this argument, the Revenue Board dismissed the appeal by allowing the review petition of Jogen Boro, through the impugned order dated 12.11.2008 (Annexure-16). Petitioner’s Contention 4.1 The writ petitioner who challenges the Revenue Board’s order, is the son of late Nripendra Ram Phukan, who together with Balen Ram and Giribala, were shown as the joint patta holders for the land, in respect of which, ownership right was claimed by one Jogen Boro, who is the predecessor of the respondents. The petitioner in substance contend that declaration in favour of the occupancy tenant (khatian holder), under Section 23 of the Tenancy Act, could not have been made, without serving notice and affording hearing to the patta holders. 4.2 Mr. The petitioner in substance contend that declaration in favour of the occupancy tenant (khatian holder), under Section 23 of the Tenancy Act, could not have been made, without serving notice and affording hearing to the patta holders. 4.2 Mr. S.P. Roy, learned counsel submits that when the names of several occupancy tenants were reflected in the khatian, declaration of rights in favour of one of the occupancy tenant, could not have been ordered by the authorities. 4.3 Since power under the Tenancy Act is conferred only on the Deputy Commissioner, the writ petitioner questions the authority of the Extra Assistant Commissioner (EAC), who made the initial declaration on 3.5.1986, in favour of occupancy tenant, Jogen Ch. Boro. 4.4 As only a cultivating occupancy tenant is entitled to the declaration of ownership rights under Section 23 of the Tenancy Act, the learned counsel Mr. S.P. Roy contends that none of the private respondents are actual cultivators and therefore the right envisaged for the cultivating tenants, could not be conferred upon non-cultivators. 4.5 The petitioner submits that the Assam Board of Revenue having initially allowed the Appeal of the patta holders against the verdict in favour of the occupancy tenant, should not have exercised its review power thereafter, to dismiss the Appeal on the ground of delayed approach of the patta holder. 4.6 Although this plea was not raised in the earlier proceeding, the learned counsel for the petitioner Mr. S.P. Roy refers to the Govt. Notification dated 19.2.2005 and contends that since the concerned land at Betkuchi village was included within the Greater Guwahati Town by the Govt. Notification dated 1.10.1966, ownership right to the occupancy tenants could not have been conferred under the Tenancy Act and settlement of the tenanted land can’t be allowed, without prior approval of the Government. Submission of the Occupancy Tenant 5.1 On the other hand, Mr. P.K. Deka, the learned counsel representing the private respondents Nos.5—9 (the legal heirs of the occupancy tenant) submits that the Tenancy Case No.586/1984, was registered at the instance of Jogen Boro and he was one of the recorded occupancy tenant (khatian holder) for the land covered by Dag No.118. The khatian was originally held by the applicant’s father late Patela Boro and the original Khatian No.191 was issued in the name of Patela Boro, as far back as on 1.10.1959. The khatian was originally held by the applicant’s father late Patela Boro and the original Khatian No.191 was issued in the name of Patela Boro, as far back as on 1.10.1959. Following his death, his four sons including Jogen Boro, were recognized on 14.08.1975 as the occupancy tenants. The only change was that the Khatian No. was altered to No.197 and then finally to No.166 in respect of the very same land, under Dag No.118. 5.2 Therefore when one of the occupancy tenants with consent of his brothers had filed the application under Rule 9 of the Assam (Temporarily Settled Areas) Tenancy Rules, 1972 (here-in-after referred to as 'the Tenancy Rules’) in the prescribed Form 5 and preliminary inquiry was made by the Addl. DC, under Rule 10 in the Tenancy Case No.586/1984, the exercise contemplated under the Tenancy Act were done and therefore Mr. Deka argues that the declaration made in favour of the occupancy tenant, is through a legally acceptable process. 5.3 Since the patta holders have never challenged the authenticity of the khatian in respect of the land under Dag No.118, issued on 1.10.1959 in the name of Patela Boro and thereafter on 14.8.1975, in the name of his legal heirs, it is contended that the patta holders are disentitled to challenge the verdict given in favour of the khatian holder, under the Tenancy Act. 5.4 The locus standi of the writ petitioner Bikram Phukan is questioned, as in respect of the land under Dag No.118, the writ petitioner is not the patta holder. Moreover the concerned land was sold out by the original patta holders and therefore it is argued by Mr. Deka that even the recorded pattadars are disentitled to challenge the declaration, made in favour of the occupancy tenant. 5.5 Referring to the LCR of the Tenancy Case No.586/1984, Mr. Deka submits that the notice was duly accepted on behalf of the patta holders by one Hemen Phukan, who is the son of one of the patta holder Balen Ram Phukan. Therefore notice is deemed to be served. Moreover the knowledge of the pattadars is projected by the order recorded on 9.4.1985, where presence of both parties was recorded in the order sheet, in the Tenancy Case No.586/1984. 5.6 The inquiry expected to be made under Section 23 of the Tenancy Act, was ordered by the Addl. Therefore notice is deemed to be served. Moreover the knowledge of the pattadars is projected by the order recorded on 9.4.1985, where presence of both parties was recorded in the order sheet, in the Tenancy Case No.586/1984. 5.6 The inquiry expected to be made under Section 23 of the Tenancy Act, was ordered by the Addl. DC and the final order was also passed by the Addl. DC on 12.2.2003. Therefore it is argued that the declaration in favour of the occupancy tenant was made by a competent authority, recognized under the Assam Land and Revenue Regulation, 1886. Mr. Deka submits that the usual practice in all such cases is that the Addl. DC exercises the power on behalf of the DC and competency of the delegated authority is recognized, under Section 70 of the Tenancy Act. 5.7 When the declaration in favour of the occupancy tenant in the Tenancy Case No.586/1984 was made as far back as on 3.5.1986 and the somewhat belated concurrence of 12.2.2003, is on account of the blanket stay of the Addl. DC in respect of all the pending town area cases under the Tenancy Act, the delayed approach of the patta holder to the Appellate Authority has to be dismissed on the ground of laches, since only 60 days’ limitation time is provided. Accordingly it is argued by Mr. Deka that the impugned decision of the Revenue Board rendered on 12.11.2008, requires no interference of the Writ Court. 5.8 On the new ground argued by the petitioner basing upon the govt. notification of 19.2.2005 and the inclusion of the Betkuchi village within the Greater Guwahati Town, Mr. Deka submits that the Khatian was issued as far back as on 1.10.1959, initially in the name of Patela Boro and thereafter in the name of his four sons on 14.8.1975 and hence it is argued that the requirement of seeking prior govt. approval stipulated for town area land, under the govt. notification dated 19.2.2005, can’t be retrospectively applied for already concluded cases, under the Tenancy Act. Moreover it is not a case of settlement of Govt. land but it is a case of declaration of ownership right in respect of land already settled with the patta holders and therefore Mr. P.K. Deka argues that the notification of 19.2.2005, will have no application in the present dispute. Features of the Tenancy Act 6. Moreover it is not a case of settlement of Govt. land but it is a case of declaration of ownership right in respect of land already settled with the patta holders and therefore Mr. P.K. Deka argues that the notification of 19.2.2005, will have no application in the present dispute. Features of the Tenancy Act 6. The Tenancy Act was enacted to regulate the rights and liabilities of agricultural tenants and their landlords in temporary settled lands in Assam and this Act can be described as an attempt of the legislature to ameliorate the conditions of the tenant cultivators of the state. The Act is intended to advance the cause of social justice and give impetus to the actual cultivators and to allay the insecurity of the tillers to confer them statutory rights over the land cultivated by them. The Act is also intended to augment agricultural production. 7. Under the exception Section 2, the Tenancy Act does not apply to, inter alia, non-agricultural land, such as those reserved for grazing, recreational, burial or cremation purpose and also for lands utilized for special cultivation and purpose ancillary thereto. But the Act certainly applies to agricultural land, provided the tenant is a cultivating tenant. The classes of tenants covered by the Tenancy Act are mentioned in Section 4 and the non-occupancy tenants are not entitled to the benefits of the act. The right of the occupancy tenant gets recognized under Section 5, provided a person is continuously holding the land as a tenant for a period of three years. Significantly the right can also be claimed by the legal heirs of the occupancy tenant, under Sub-section (4) of Section 5. 8. Declaration of intermediary and ownership rights on the cultivating occupancy tenant is contemplated under Section 21 of the Tenancy Act and such right can also be claimed by under-tenants, as defined in the Assam (Temporarily Settled District) Tenancy Act, 1935. But the under-tenants inducted after the Tenancy Act, 1971 was enacted w.e.f. 10.12.1971, can’t claim ownership right under the Tenancy Act. 9. In order to acquire the ownership rights of the landlord, an occupancy tenant should apply under Section 23 of the Tenancy Act and such application should be made in Form No.5 of Rule 9 of the Tenancy Rules. When claim is made, the Dy. 9. In order to acquire the ownership rights of the landlord, an occupancy tenant should apply under Section 23 of the Tenancy Act and such application should be made in Form No.5 of Rule 9 of the Tenancy Rules. When claim is made, the Dy. Commissioner is required to cause an inquiry under Rule 10 to satisfy himself about the eligibility of the applicant to acquire the intermediary rights and the ownership rights, before ordering further proceedings. Only when the authority is satisfied that there is a prima facie case for declaration under Section 23, notices are to be served in Form No.6 to all persons mentioned in the application of the occupancy tenant or to any other person, who might have legitimate interest on the land. Objections are to be presented within a month of service of notice and any evidence if adduced by the parties, are required to be considered before right is declared under Section 23 of the Tenancy Act. 10. Thereafter the compensation amount payable to the patta holder is to be decided under Section 24 and payment of compensation with due notice to the landlord is required to be made under Section 26 of the Tenancy Act. Once the payable amount is quantified, the deposit of the compensation by the occupancy tenant is mandatory, where after, declaration of ownership right can be made under Section 23 of the Tenancy Act. For proceedings under the Tenancy Act, Appeal can be preferred to the Assam Board of Revenue, from the original order of the Dy. Commissioner or the Settlement Officer, within 60 days of the order appealed against. But when no Appeal is preferred, the order becomes final under Sub-section (2) of Section 67. The State Government can vest the powers of the Dy. Commissioner or the Settlement Officer with any Revenue Officer or Assistant Settlement Officer, under Section 70 of the Tenancy Act, which provides for delegation of power, conferred upon the Dy. Commissioner. 11. The format of application and the applicable procedure for dealing with the matters pertaining to the Tenancy Act are prescribed under Assam (Temporarily Settled Areas) Tenancy Rules, 1972, which was made by the Government by invoking the powers under Section 23 of the Tenancy Act. Commissioner. 11. The format of application and the applicable procedure for dealing with the matters pertaining to the Tenancy Act are prescribed under Assam (Temporarily Settled Areas) Tenancy Rules, 1972, which was made by the Government by invoking the powers under Section 23 of the Tenancy Act. The Form No.5 prescribed by Rule 9 of the Tenancy Rules requires the applicant tenant to give details of the land and the landlord and the khatian No., for which declaration is sought by the occupancy tenant. Discussion on the Original Proceeding 12. In the application filed by the occupancy tenant Jogen Boro, the names of all the four occupancy tenants were mentioned together with the names of the three landlords. It was specified that the claimed land is under Khatian No.166 and is covered by Dag No.118 of Myiadi Patta No.143 and the land measures 4 bighas 3 kathas 17 lechas. 13. The application of the occupancy tenant was registered as Tenancy Case No.586/1984 and the Addl. DC, Kamrup ordered for a preliminary inquiry, whereby the Sub-Deputy Collector, Guwahati was directed to report as to whether the applicant tenant is personally cultivating the land, to determine his eligibility to acquire the ownership right. The copy of the khatian and other relevant land records with trace map were also directed to be produced with the report of the Revenue Officer. The order sheet of the proceeding discloses that the matter was taken up on various dates starting from 19.6.1984 but eventually only on 22.4.1986, the report from the SDC is shown to have been received. The notice sent to the three patta holders in the Form No.6 was received by one Hemen Phukan, who appended his signature to the notice on 13.4.1985. The patta holders appeared thereafter and that is how the presence of both parties were reflected in the order sheet dated 9.4.1985, in the Tenancy Case No.586/1984. 14. In the impugned order passed on 3.5.1986 (Annexure-4), the absence of objection from the patta holders was noticed. It was also noted from the report of the Sub-Deputy Collector furnished on 20.6.1984 that applicant is the occupancy tenant in respect of the land at Betkuchi village in Khatian No.166. 15. 14. In the impugned order passed on 3.5.1986 (Annexure-4), the absence of objection from the patta holders was noticed. It was also noted from the report of the Sub-Deputy Collector furnished on 20.6.1984 that applicant is the occupancy tenant in respect of the land at Betkuchi village in Khatian No.166. 15. The consent given by the applicant’s 3 brothers, Naren Boro, Sibin Boro and Niben Boro was also considered by the authority, whereby the three Khatian holders had indicated that they have no objection to granting of ownership right to their brother Jogen Boro, in respect of the land under Khatian No.166. 16. As regards inclusion of Betkuchi village land within the Gauhati Municipal Corporation area, the following observation was made on 3.5.1986, in the Tenancy Case No.586/1984: “………………………………….. It is to be worth noted that the land covered under this case falls within the Gauhati Municipal Corporation area. But from the letter No.RRT.37/77/121 dated 18-06-1984 received from the Government, it appears that the people who had got Raiyati rights covered within the Gauhati Municipal Corporation Area, will be entitled to enjoy Raiyati rights so long any other enactment does not curb their rights. The new amended provisions of 1983 Amendment in Assam Tenancy Act is not applicable. From the report of the Sub Deputy Collector of Guwahati Circle, it appears that the Applicant Raiyats are continuously possessing 4 bighas 4 kathas 17 lechas of land covered under above mentioned Dag and Patta. On examination of entire record I am of the opinion that the above named Raiyat is entitled to get ownership right by giving compensation to the land lords equivalent to 50 (fifty) time of the land revenue which is presently Rs.9.40 per year, as per appendix 24 of the Assam Tenancy Act of 1971. In the event of any objection on the point of compensation, the land lords are directed to submit their objection within a month from this order. The applicant is directed to deposit a sum of Rs.470/- in the treasury for realization by the landlords …………………………………..”. With the above observation, the occupancy tenant was directed to deposit the assessed compensation within a month and the next date of the proceeding was fixed on 10.6.1986. Impact of the GMC Act 17. The applicant is directed to deposit a sum of Rs.470/- in the treasury for realization by the landlords …………………………………..”. With the above observation, the occupancy tenant was directed to deposit the assessed compensation within a month and the next date of the proceeding was fixed on 10.6.1986. Impact of the GMC Act 17. After the Gauhati Municipal Corporation (GMC) Act was brought into force w.e.f. 18.1.1973 (constitution of the Municipality area and other segments of the GMC Act was notified to be operational w.e.f. 15.2.1974), the re-conciliation of the provisions of the GMC Act with the Tenancy Act was found necessary. The status of the existing occupancy tenants in the Guwahati municipal area was thus clarified by the Government, through the notification of 18.6.1984. In this notification, the Government declared that already recognized tenants shall continue to remain tenants as before, until their rights are modified or terminated through any procedure established by law and it was specifically observed that the existing tenants already recorded in the khatian, will continue to enjoy protection of their rights, under the Tenancy Act. Post Decisional Development 18. The compensation amount was deposited on 2.6.1986 by the occupancy tenant in the Government Treasury but the matter could not be finalized. The pause was on account of the multiple cases, where ownership right was claimed in respect of rural lands, converted to town category land. For all these pending cases, a blanket stay order was passed on 15.10.1988, by the then Addl. D.C., Kamrup. To clarify their position, the patta holders in a group, moved the High Court but this Court on 8.11.1989 in the case of Sadau Assam Pattadar Sangha Vs. State of Assam reported in (1990)1 GLR(NOC) 32, protected the rights of the occupancy tenants, whose names were already recorded in the khatians, prior to the notification of the Gauhati Municipal Areas, under the GMC Act. The aggrieved association of the patta holders then moved the Supreme Court but the SLP(C) No.8503/1990 was dismissed. Therefore in the present claim, the Addl. DC, Kamrup observed in his order dated 12.2.2003, that the right of the occupancy tenant to claim ownership right under the Tenancy Act is kept intact. The aggrieved association of the patta holders then moved the Supreme Court but the SLP(C) No.8503/1990 was dismissed. Therefore in the present claim, the Addl. DC, Kamrup observed in his order dated 12.2.2003, that the right of the occupancy tenant to claim ownership right under the Tenancy Act is kept intact. Consequently declaration was made under Section 23 of the Tenancy Act to the effect that the occupancy tenant has acquired the ownership right of land measuring 4 bighas 3 kathas 17 lechas, covered by Khatian No.166 of Betkuchi village of Beltola Mouza. While making the declaration in favour of the single applicant, the authority noted that the other three khatian holders through their joint petition of 30.4.1986 had consented to the declaration of ownership rights in favour of the applicant Jogen Boro, on account of mutual family settlement. Thus direction was issued for publication of the ownership rights in favour of the occupancy tenant in the Official Gazette and therefore the substance of the declaration made by the Addl. DC on 12.2.2003 was published in the Assam Gazette on 5.3.2003 (Annexure-6). 19. As earlier noted, the patta holders did not file any objection in the Tenancy Case No.586/1984. But long after the declaration was made and gazette notification was published in favour of the occupancy tenant, one of the patta holders Nripendra Ram Phukan approached the Assam Board of Revenue to challenge the Addl. DC’s order in the Tenancy Case No.586/1984. Since this was a belated challenge, an application for condonation of delay accompanied the Appeal. Keeping open the point of limitation, the Appeal was admitted by the Revenue Board on 18.12.2006 (Annexure10). Thereafter through the judgment dated 12.4.2007 (Annexure-12), the patta holder’s Appeal was allowed. 20. The aggrieved occupancy tenants then applied for review of the judgment dated 12.4.2007 and in this proceeding, the occupancy tenant contended that appellant Nripendra Ram Phukan has no locus standi to file the Appeal, since the land covered by the Khatian No.166 was sold away by the legal heirs of Late Giribala Devi in favour of M/s. Bidya Mandir. Therefore it was contended that the appellant Nripendra Ram Phukan could not have challenge the declaration made in the Tenancy Case No.586/1984 or could have challenged the verdict, as he had no subsisting right in respect of the land, covered by Dag No.118. Therefore it was contended that the appellant Nripendra Ram Phukan could not have challenge the declaration made in the Tenancy Case No.586/1984 or could have challenged the verdict, as he had no subsisting right in respect of the land, covered by Dag No.118. The Revenue Board noted that when the ownership right was declared in favour of the occupancy tenant, the aggrieved party should have approached the Appellate Forum within the prescribed limitation period of 60 days or within the permitted extension period. But it was noted that after the order was passed on 3.5.1986, the appellant left the decision unchallenged for years together. Therefore allowing the appeal through invocation of Section 151 of the Land Revenue Regulation was found to be unjustified in respect of the original order passed under the Tenancy Act. On this basis, the Review Petition of the occupancy tenant was accepted and after reviewing the earlier order dated 12.4.2007, the Revenue Board dismissed the Appeal, filed by Nripendra Ram Phukan on 12.11.2008 (Annexure-16). Status of the Patta Holders with Khatian land 21. The family estate was extensive at Betkuchi village and measured about 744 bighas covered by the K.P. Patta No.72. Out of this large area, land measuring 95 bighas 1 kathas 9 lechas of Betkuchi village, was sold by the patta holder Hiren Ram Phukan and Biren Ram Phukan, through the Regd. Sale Deed dated 14.9.1946 to Giribala Devi, who is one of the recorded pattadar in respect of the land claimed by the occupancy tenant. The sold land was encompassed within various Dag Nos. but what is relevant here is that 7 bighas 1 kathas 18 lechas under Dag No.105, was part of the land sold to Giribala Devi, under the Regd. Sale Deed dated 14.9.1946. Subsequently the land under Dag No.105 was converted to Dag No.118 and out of the land contained in this Dag, land measuring 4 bighas 3 kathas 17 lechas was recorded in the khatian originally for Patela Boro, in the khatian declaration made on 19.1.1954. The Revenue Board noted that the land covered by the Khatian was sold off by the legal heirs of one of the patta holders (Giribala Devi) to a third party on 27.9.2002 and on 10.2.2003 respectively. But the said sale was made without consent from the occupancy tenants. 22. The Revenue Board noted that the land covered by the Khatian was sold off by the legal heirs of one of the patta holders (Giribala Devi) to a third party on 27.9.2002 and on 10.2.2003 respectively. But the said sale was made without consent from the occupancy tenants. 22. A Division Bench of this Court in Sadau Assam Pattadar Sangha vs. State of Assam, reported in (1990) 1 GLR (NOC) 32, examined the impact of inclusion of the khatian lands within the fold of the Municipality area of Guwahati w.e.f. 4.3.1973, through the Amendment Act of 1983, on the occupancy tenants, who assert their claim under Section 23 of the Tenancy Act. Here the Court held that the right inhered on an occupancy tenant by 4.3.1973, can’t be obliterated through amendment of Section 3(18) of the Tenancy Act. It was further observed that the tenant who had acquired the status of occupancy tenant prior to 4.3.1973, can’t be debarred from exercising their rights under Section 23, in respect of the town land, as defined under Section 3(18) of the Tenancy Act. Thereafter since the SLP filed by the patta holder association was dismissed by the Apex Court, the claim of the khatian holder in the Tenancy Case No.586/1984 was found to be un-impacted by the declaration of the town area land and on that basis, ownership right was declared in favour of the occupancy tenant. Discussion & Decision 23. The main argument of the petitioner against the declaration of the ownership right is that the same was not through due process since the Patta holders were denied the opportunity of filing their objection. In this context, the notice of the proceeding in the Tenancy Case No. 586/1984 was served upon Hemen Phukan, who is the nephew of Nripen Ram Phukan, a patta holder. The adequacy of this service if examined in light of the order dated 9.4.1985 in the Tenancy Case No. 586/1984, wherein both parties are shown to be present, the want of notice/knowledge claimed by the Patta holder is difficult to believe. But surprisingly the Patta holders didn’t raise any objection and that is how, the application of the occupancy tenant was decided in his favour, in the Tenancy Case No. 586/1984 only on the basis of the report received from the revenue authorities. 24. But surprisingly the Patta holders didn’t raise any objection and that is how, the application of the occupancy tenant was decided in his favour, in the Tenancy Case No. 586/1984 only on the basis of the report received from the revenue authorities. 24. While two of the Patta holders namely Bolen Ram Phukan and Giribala Devi did not challenge the declaration in favour of the occupancy tenant, the 3rd patta holder Nripen Ram Phukan belatedly filed the case No.157 RA(K)/2006 to challenge the verdict in the Tenancy Case No. 586/1984. But this Appeal was filed only in December 2006 whereas the preliminary declaration in favour of the occupancy tenant was given on 3.5.1986 (Annexure-4) and final declaration on 12.2.2003 (Annexure-5) and the gazette notification was published on 5.3.2003 (Annexure-6). Therefore the issue of maintainability of the belated appeal is vital and has to be taken into account. The appellant in his delay condonation application averred that he became aware about the verdict in favour of the occupancy tenant on 25.11.2004 and yet the appeal was presented much later in December, 2006. Admittedly the value of the land under litigation is considerable and expedient challenge by the affected patta holder was expected, at least from the date of knowledge. The explanation of the appellant Nripen Ram Phukan is that he engaged a lawyer to challenge the decision in the Tenancy Case No. 586/1984 but the lawyer did not file the appeal in time. Such cryptic explanation without any specific details does not inspire confidence about its authenticity as the appellant failed to name the lawyer engaged by him and perhaps it is more likely that, even after knowledge on 25.11.2004, the patta holder slept over the matter and the explanation is nothing but an afterthought. 25. From the above perspective, the want of due diligence of the patta holder is clearly discernible and it can’t therefore be said that the Revenue Board committed any patent error in declaring that the patta holder failed to approach the Appellate Forum with reasonable promptitude. Only 60 days limitation period is prescribed under Section 67 of the Tenancy Act and in the instant case, the appeal was filed after about 4 years. That is how, the Review Application of the occupancy tenant was allowed on 12.11.2008 (Annexure-16). 26. Only 60 days limitation period is prescribed under Section 67 of the Tenancy Act and in the instant case, the appeal was filed after about 4 years. That is how, the Review Application of the occupancy tenant was allowed on 12.11.2008 (Annexure-16). 26. However since arguments on the merit of the claim have been advanced by both sides, the legality of the declaration given in the Tenancy Case No. 586/1984 is also being examined in this proceeding. 27. The power to make the declaration under Section 23 of the Tenancy Act is conferred on the Deputy Commissioner but delegation of power is contemplated in the Tenancy Act itself, under Section 70. The role of Extra Asstt. Commissioner (EAC) as a competent authority under the Assam Land Revenue Regulation, is recognized by Section 147 along with other revenue officers like D.C., Settlement Officer, etc. Therefore the initial decision made by the EAC on 3.5.1986 can’t be said to be by an incompetent authority. This view is found to be acceptable in as much as, the Addl. D.C., with the delegated power of the D.C., had called for the reports at the first instance in the Tenancy Case No. 586/1984 and the final declaration in the case was also made by the Addl. D.C. on 12.2.2003. The Addl. D.C., with the delegated power of the D.C. is competent under the Tenancy Act and the jurisdiction of the Addl. D.C. is clearly recognized by the Government, as can be seen from the Government letter dated 19.2.2005. Moreover it is the usual practice in Assam for the Addl. D.C. to deal with claims under the Tenancy Act as the delegatee of the D.C. Therefore the Addl. D.C. is found to be competent to make the declaration under Section 23 of the Tenancy Act. 28. The procedure prescribed under the Tenancy Act to declare the right of the occupancy tenant are found to be substantially complied during the original proceeding in as much as a report on the khatian holder and the land was called for by the Addl. D.C and the declaration under Section 23 was made only after due consideration of the report given by the SDC. D.C and the declaration under Section 23 was made only after due consideration of the report given by the SDC. Here it may be observed that once the right as a cultivating tenant gets crystallized through recordings in the khatian and the possession and cultivating status in respect of the land is reported through spot verification by the revenue staff, the status of the khatian holder at the time of application is relevant and subsequent change can have no impact on the merit of the declaration under Section 23 of the Tenancy Act. 29. One key issue here is that the original Khatian No.191 was issued initially in the name of Petela Bora on 1.10.1959 and subsequently the khatian rights devolved on the 4 sons of Petela Boro on 14.8.1975 as the legal heirs of the original khatian holder. The khatian number was changed at that stage to 197 from 191 and subsequently when the application was filed by Jogen Boro, the land was shown under the khatian number 166 and it was in the joint name of Jogen Boro and his three brothers. But what is relevant is that only the khatian numbers were changed but the substituted khatian holders were the natural successors and the khatian was for the same parcel of land, under Dag No.118. Therefore on the basis of the continuous possession of the original khatian holder and his legal heirs, ownership right was granted after due verification of bona fide of the claim made by the applicant Jogen Boro. In such circumstances, the merit of the declaration made in favour of the occupancy tenant doesn’t in my view suffer from any legal infirmity. 30. The patta holders appeared before the original authority on 9.4.1985 but they failed to file objection in the proceeding under Section 23 of the Tenancy Act. That is how after considering the report of the SDC and other relevant documents, declaration was rightly made by the competent authority. 31. The object of the Tenancy Act is to confer ownership rights on the cultivating tenants and the prudent approach in such cases should be, to interpret the facts in a manner, which harmonize with the object of the statute. Therefore when two possible options are available, the preferred choice should be that, which will advance the legislative intent. 31. The object of the Tenancy Act is to confer ownership rights on the cultivating tenants and the prudent approach in such cases should be, to interpret the facts in a manner, which harmonize with the object of the statute. Therefore when two possible options are available, the preferred choice should be that, which will advance the legislative intent. Here the right of the khatian holder has got crystallized and the patta-holders never challenged the entries in the khatian. Therefore interference with the decision following substantial compliance with the legal requirements which protects the right of the occupany tenant, is considered to be unwarranted, bearing in mind the noble object of the Tenancy Act. 32. The writ petitioner is not the patta holder of the land but he asserts his right to make the challenge as a son of Nripendra Ram Phukan, who was one of the 3 patta holders for the land. But none of the patta holders filed any objection in the Tenancy Case No.586/1984 and the appeal against the original decision in favour of the occupancy tenant, was filed long after. The possession of the applicant-tenant was verified by revenue staff as far back as on 16.6.1984 and that is what was reported to D.C. on 20.6.1984. Therefore land possession claimed by petitioner, who is not the patta holder, or even through his predecessor Nripendra Ram Phukan, can’t certainly be entertained at this stage. The right of the occupancy tenant got crystallized over the land under their possession, through issuance of the khatian in 1959 and the recordings in the khatian have remained unchallenged till date, by any of the patta holders. They never asserted that they are in possession or that, khatian was wrongly issued, at any stage prior to the Tenancy Case. Therefore when the right of the occupancy tenant got crystallized and remained unchallenged since a long period of time, the entertainment of a writ petition wouldn’t be justified at the instance of a son of one of the patta holders – particularly when, the patta-holders themselves had failed to oppose the tenant’s claim. That apart one attorney holder Tapeswar Rabha has filed this case while the writ petitioner Bikram Phukan is not in the forefront of the writ petition. 33. That apart one attorney holder Tapeswar Rabha has filed this case while the writ petitioner Bikram Phukan is not in the forefront of the writ petition. 33. The concerned land was agricultural land and despite its subsequent inclusion in the municipal area, the right of the occupancy tenant was not affected. The khatian entries were never challenged by the patta holder and the revenue staff reported on the possession of the khatian-holder. The application for ownership right was made under the prescribed format and the procedures under the Tenancy Rules were adhered, when it was processed. Notice was received by a family member and patta-holders appeared on 9.4.1985 but they failed to file any objection. Therefore on the basis of contemporaneous materials and the report of the revenue staff, declaration was made in favour of the occupancy tenant when he was found to be in possession. The compensation amount was then deposited in the govt. treasury for disbursal to the patta-holders and the ownership declaration in favour of the occupancy tenant was notified, in the gazette. 34. When a writ Court is called upon to decide the legality of the procedure leading to declaration of ownership right in favour of the occupancy tenant, the Court has to be satisfied whether the decision was given as per law. After considering all aspects of the matter, I find substantial compliance with the procedural requirement in the declaration of the ownership right in favour of the khatian holder. Therefore intervention of the writ Court is found to be unwarranted and consequently the case is dismissed. The parties to bear their own cost.