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. 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.586/198