The main legal point established in the judgment is that personal cultivation is an essential precondition for an occupancy tenant to acquire ownership rights under the Assam Tenancy Act, and the fact-finding enquiry for acquisition of ownership rights is mandatory.

Amitava Roy, J.

1. The facts are few but the petition poses questions of considerable moment involving an occupancy tenant under the Assam (Temporarily, Settled Areas) Tenancy Act, 1971 (hereafter referred to as Act), namely whether an Occupancy tenant is divested of his acquired rights once the Act ceases to apply to his land of tenancy and is an heir of an occupancy tenant for acquiring the ownership rights under the Act required to be engaged in personal cultivation within the meaning of the said enactment. The Assam Board of Revenue (hereafter referred to as the Board) having answered both the questions in the affirmative and against the Petitioners, they seek redress in this petition.

2. I have heard Dr. N.K. Singh, learned Counsel for the Petitioners and M. Singh, learned Counsel for the private Respondents. Ms. R. Chakravarty, learned State Counsel, appeared on behalf of the State Respondents.

3. First a brief outline of the facts.

4. The Petitioners' father Late Kanta Prasad Das was an occupancy tenant under the Act in respect of the land measuring 6 bighas 18 Kathas and 1 Chatak under the Dag No(s) 155, 156 and 157 of 2nd R.S. Patta No. 52 of at Mouza-Tulargram Part- II, PS. Sonapur of which Smt. Suruchi Bala Roy was the landlord. The Petitioners' father filed an application before the Deputy Commissioner, Cachar, Silchar, for acquisition of ownership rights under Section 23 of the Act on which a proceeding being AOR case No. 1/92-93 was registered. In the report that was called for from the Assistant Settlement Officer, Sonai Circle, submitted on 19/2/92, it was, inter alia, mentioned that Adhiar khatian No. 10 over the land stood in the name of the Petitioners' father as occupancy tenant being in possession of the land involved for last 30 years. It was further mentioned that in the meantime the original landlord, Suruchi Bala Roy had expired leaving behind four daughters including one Aruna Roy, a widow. The Reporting Officer, in view of the scripted facts recommended in favour of conferment of the ownership rights on the Petitioners' father. The application was thereafter allowed ex parte as Smt. Sudha Rani Roy, Respondent No. 4 (daughter of Smt. Suruchi Bala Roy) had failed to appear. The matter was taken in appeal by the Respondent No. 4 to the Board which after setting aside the order remanded the matter for fresh disposal. The District Revenue Officer/Additional Deputy Commissioner on remand by the order dated 13.9.96 again allowed the application and held that the present Petitioners (their father having expired in the meantime) were entitled to acquire the ownership rights in the land under the Act and directed computation of the compensation under Section 24. The impugned judgment and order passed by the Board is in Appeal No. 95/RA(C)/96 filed by the Respondent No. 4 reversing the determination of the lower Revenue Authority.

5. The land admittedly in the meantime by a communication dated 18.11.92 issued under Section 3of the Assam Land Revenue Reassessment Act, 1936, along with other lands had been brought under Sonai Revenue Circle of Cachar District and declared as Sonai Revenue Town. The Petitioners' father and the original landlord Smt. Suruchi Bala Roy had in the meantime expired and the legal tussle continued with their successors in interest namely the Petitioners and the Respondent No. 4, the latter having taken a stand that on purchase of the land from the other heirs of her mother, she had become the exclusive owner thereof.

6. The Board has, inter alia, held that an occupancy tenant under the Act, cannot acquire a further right thereunder if the land is excluded from the purview of the Act, and therefore, the land involved having been included in Sonai Revenue Town by the notification dated 18.11.92, the Petitioners were not entitled to acquire the ownership rights therein. It further held that the Petitioners as the heirs of the original occupancy tenant were additionally required to establi