order

16.03.2021 Heard Mr. PJ Saikia, learned counsel for the petitioner. Also heard Mr. B Sharma, learned counsel for the respondent No. 4, Mr. PS Deka, learned standing counsel Revenue Department and Ms. K Phukan, learned State counsel.

Judgment and order dated 19.08.2015 passed in case No. 74 RA(S)/2014 passed by the Hon’ble Assam Board of Revenue is put under challenge in this writ petition. The said appeal before the Hon’ble Assam Board of Revenue at Guwahati arose out of an order dated 08.08.2014 passed by the Additional Deputy Commissioner, Sibasagar in Rayoti Khatian Case No. 02/2014. The petitioner as the first party on the strength of Khatian No. 187 in respect of land measuring 6 Bighas 3 Kathas 14 Lechas covered by Dag Nos. 1014/1022 (N)/570(O) of village Moran under Mouza-Athkhel sought for acquisition of the ownership right under Section 23 of the Assam (Temporarily Settled) Areas Tenancy Act, 1971. On the basis of the said application the said Rayoti Khatian case No. 2/2014 was initiated and as per order dated 08.08.2014 notice/ notices were issued to the respondent No. 4. However, on the date of passing the said order dated 08.08.2014 no one represented the present respondent No. 4 impleaded as the second party in the said proceeding.

The Additional Deputy Commissioner, Sibasagar while passing the order dated

08.08.2014 took note of the report of the Circle Officer and came to the conclusion that the petitioner as the khatian holder had been possessing the said land by cultivating and constructing houses thereon. It was also observed that as per the record the patta was in favour of Assam Tea Company and the owner of the said company did not raise any objection regarding possession of land by the petitioner after acquiring the khatian as an occupancy tenant under the Assam (Temporary Settled) Areas Tenancy Act 1971. Finally vide order dated 08.08.2014 it was held that the petitioner was entitled to get the ownership over the land on the strength of the khatian as per Section 23 of the said Act, 1971.

The said order was challenged by the respondent No. 4 in case No. 74 RA (S)/2014 before the Hon’ble Assam Board of Revenue. The learned Chairman of the Assam Board of Revenue vide the impugned judgment and order dated 19.08.2015 allowed the appeal holding as follows:

“Having perused the facts of the case it emerges without any dispute that the land in question is a tea class land. Section 2 of the Tenancy Act clearly excludes it from the provisions of the said Act. No tenancy can be recorded for it and no khatian can be issued. Whether in 1975 or in 1997, the khatian issued to the respondent No. 2 is in violation of the law. The arguments put forward by the respondent no. 2 that the said Section is not applicable because the khatian was issued in 1975 or that the land in question is not being used for tea purposes, are not tenable. The khatian has been issued illegally and further action by the learned ADC granting ownerships rights on the basis of the said khatian would automatically be illegal.

In view of the above the appeal is allowed. The impugned order of the learned ADC dated 08.08.2014 granting ownership rights to the respondent No. 2 and all subsequent orders based on it are set aside. Khation No. 171 granted in favour of the respondent No. 2 is cancelled.”

I have perused the records and as per katcha khatian No. 187 apparently the class of land is shown as “Tea”. The Assam (Temporary Settled) Areas Tenancy Act, 1971 came into force in the year 1971 with an object to regulate the relations of landlord and tenant in the temporarily settled areas within Assam. The applicability of the provision of the said Act, 1971 is barred under Section 2 of the said Act and Sub-section (e) includes land comprised within estates settled for special cultivation. In the explanation (ii) purposes ancillary for special cultivation are specified. Prima-facie from the khatian itself the class of the land belongs to ‘tea’ category whic