THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) WP(C) No. 5887 of 2010 1. Md. Rafique Ahmed. 2. Md. Abdul Aziz. 3. Md. Niazuddin Ahmed. 4. Md. Sarifuddin Ahmed. All are sons of Late Abdul Bari and all are resident of Vill-Sonapur, Mouza-Sonapur, PS-Khetri, Dist.-Kamrup, Assam. -Versus- 1. Assam Board of Revenue, Panbazar, Guwahati-781006. 2. Deputy Commissioner, Kamrup(Metro), Guwahati. 3. Addl. Deputy Commissioner, Kamrup(Metro), Guwahati. 4. Md. Innamul Haque. 5. Md. Nawazul Haque. Both are sons of Late Abdul Haque, Resident of Lakhtokia, Guwahati-1, PS-Panbazar, Dist.-Kamrup. 6. Deleted vide order dated 29.07.2013. 7. Md. Aftab Hussain. 8. Md. Harun Ali. 9. Md. Abdul Malik. Sl.Nos.7, 8 and 9 are the sons of Late Amzed Ali. 10. Musstt. Hazira Begum, W/O Idrie Ali. 11. Musstt. Illora Begum. Sl.Nos.7 to 11 all are the resident of Sonapur, Mouza-Sonapur, PS-Khetri, Dist.-Kamrup, Assam. Petitioners. Respondents. WP(C) 5887/2010 Page 1 of 7
Advocate(s) for the Petitioners : Advocate(s) for the Respondents : Mr. B.D. Das (Sr. Adv.), Mr. R.C. Saikia, Mr. B.N. Pathak, Ms. Karabi Saikia, Ms. Kakali Saikia, Mr. M. Kalita, Mr. P. Khataniar. GA, Assam, Mr. P.K. Deka, Mr. R. Sarma, Mr. H. Deka, Mr. M. Buragohain, Mr. M. Hussain. BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Date of Hearing and Judgment : 19 th November, 2015 JUDGMENT AND ORDER (ORAL) Heard Mr. B.D. Das, the learned Sr. counsel appearing for the petitioners. The private respondent Nos.4 to 10 are represented by the learned counsel Mr. P.K. Deka. The Deputy Commissioner and the Addl. Deputy Commissioner, Kamrup(M) (respondent Nos.2 and 3) are represented by Mr. M. Khataniar, the learned Govt. advocate. 2. The matter pertains to tenancy rights claimed under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as the Tenancy Act ). The petitioners claim that their forefather Abdul Bari was the recognized khatiandar/occupancy tenant in respect of the landed property owned originally by late Abdul Haque. The successors of the khatiandar Abdul Bari are the petitioners in this case and this group is described hereinafter as the 2 nd khatiandars. The respondent Nos.4, 5 and 6 are the successors of the land owner late Abdul Haque and hereinafter these litigants are described as the land owner. The respondent Nos.6 to 10 are the successors of the original khatiandar Amzed Ali and hereinafter this group is described as the 1 st khatiandar. 3. The Khatian No.11 of village Sonapur (Annexure-1) shows the 2 nd khatiandar Abdul Bari to be in continuous possession of the land and the tenancy WP(C) 5887/2010 Page 2 of 7
right of Abdul Bari was formally recognized in the revenue records on 31.03.1975. On the basis of continuous possession and his recognition as a occupancy tenant, the legal heirs of Abdul Bari filed the Tenancy Case No.15/2002 under Section 23 of the Tenancy Act, where the 2 nd khatiandars claimed ownership and intermediary rights over the lands under their possession. This application was granted by the Addl. D.C., Kamrup(M) through his order dated 02.07.2004 (Annexure-4). In his order, the possessory right for 6 lechas of land claimed by the successors of the 1 st khatiandar Amzed Ali, was recognized and thus the Addl. D.C. s order excluded 6 lechas of land covered by Dag No.537, under possession of the 1 st khatiandar. The granting of the application of the 2 nd khatianda resulted in ownership right in respect of 10 bighas 3 kathas 5 lechas land owned by the land owner. 4. After learning of the above order passed on 02.07.2004 in favour of the 2 nd khatiandar, a joint objection was filed by both the land owner and the 1 st khatiandar. However, their objection was rejected by the Addl. D.C. through a cryptic order on 18.05.2005. He considered the Circle Officer s report dated 03.12.2002 which indicated that the name of the 2 nd khatiandar was incorporated in place of the 1 st khatiandar and that Abdul Bari has been granted final Khatian No.8 in 1978. Consequent upon this order in the Tenancy Case No.15/2002, ownership/intermediary rights is conferred to the 2 nd khatiandar under Section 23 of the Tenancy Act and necessary declaration was then made in Form No.7 in the Assam Gazette on 26.05.2005 (Annexure-8). 5. The aggrieved land owner then filed the Case No.138RA(K)/2005 before the Assam Board of Revenue to challenge the Addl. D.C. s order in the Tenancy Case No.15/2002. It was pleaded therein that the land owner Abdul Haque died on 04.08.1992 and the successors never received any notice in the Tenancy Case No.15/2002. Moreover, the claim of the 2 nd khatiandar was denied by the land owner as they recognized only the 1 st khatiandar late Amzed Ali, as their occupancy tenant. 6. The learned Revenue Board noted that the notice addressed to the land owner Abdul Haque was received by Jahid Hussain, Hamid Ali and Ashrif Ahmed. But taking note of the fact that the landowner died in the year 1992 and notice was addressed to the dead pattadar, the declaration given by the Addl. WP(C) 5887/2010 Page 3 of 7
D.C. in favour of the 2 nd khatiandar was found to be in breach of the procedure prescribed by Rule 10 of the Assam (Temporarily Settled Areas) Tenancy Rules, 1972 (hereinafter referred to as the Tenancy Rules ) and on that basis, the conferment of rights under Section 23 of the Tenancy Act was found to be illegal and accordingly the order passed in the Tenancy Case No.15/2002 was quashed on 10.04.2007 (Annexure-9) by the Revenue Board. 7.1 Assailing the legality of the decision given by the Revenue Board, Mr. B.D. Das, the learned Sr. counsel submits that the successor of the original pattadar Abdul Haque not only received the notice addressed to the deceased pattadar, but also filed objection before the Addl. D.C. Therefore it is contended that there was substantial compliance of the provisions of Rule 10 of the Tenancy Rules when declaration was given in the Tenancy Case No.15/2002. 7.2 The petitioners contend that the name of Abdul Bari as a khatiandar was recognized as far back as on 31.03.1975 and such valuable right earned by the occupancy tenant could not have been interfered by the Revenue Board without considering the merit of the tenant s claim. 8.1 On the other hand, Mr. P.K. Deka, the learned counsel submits that intermediary/ownership right under Section 23 of the Tenancy Act can be granted only through a due process prescribed under Rule 9, 10 and 11 of the Tenancy Rules and hearing of the land owner or any other interested party is a sine qua non, for declaration of the rights of a khatiandar under the Tenancy Act. 8.2 Since Mr. Deka also represents the successor of the 1 st khatiandar Amzed Ali, the counsel submits that the landowner recognize only the 1 st khatiandar (Amzed Ali) as the legitimate tenant and not the 2 nd khatiandar (Abdul Bari) and therefore it is argued that this aspect should have received due consideration in the Tenancy Case No.15/2002 by the authorities exercising powers under the Tenancy Act. 9. Section 4 of the Tenancy Act refers to different categories of tenants and occupancy tenant is described as one having a right of occupancy in the lands held by him under a landholder. Such rights can be claimed by a person who holds land for a minimum 3 year period and occupancy rights are heritable as immovable property, under Section 7 of the Tenancy Act. WP(C) 5887/2010 Page 4 of 7
10. Under Section 23 of the Tenancy Act, an occupancy tenant who personally cultivate the land of his tenancy, can apply for ownership right and the Deputy Commissioner is empowered to grant such claim of the occupancy tenant by fixing the rate of compensation payable under Section 24 of the Tenancy Act. The application for claiming the right under Section 23 is expected to be made by a occupancy tenant in Form No.5 of Rule 9 of the Tenancy Rules and in column 2 of the Form No.5 the applicant is required to specify the name and address of his landlord. When any application is filed by an occupancy tenant, the Deputy Commissioner is required to satisfy himself about the eligibility of the applicant and it is mandatory to serve notice in Form No.6 to the landlord and others. Hearing to all persons mentioned in the application of the tenant is also envisaged under Rule 10 of the Tenancy Rules and only after objectors are heard and due enquiry is made as provided under Rule 10 and 11, necessary declaration of intermediary/ownership rights can be given, in favour of the applicant occupancy tenant. 11. But in the instant case, the occupancy tenant incorporated the name of the dead landowner (Abdul Haque) in their application in Form No.5 and therefore in the Tenancy Case No.15/2002, the notice was despatched to a dead person. However, since the successor of the landowner filed objection against the first order dated 02.07.2004, the non-substitution of the legal heirs of the dead landowner was overlooked by the Addl. D.C. and declaration in favour of the occupancy tenant was given in the Tenancy Case No.15/2002. 12. When we examine the Addl. D.C. s order after the objection, it is seen that the merit of the objection was not appropriately considered and instead a cryptic order was passed in favour of the occupancy tenant by the Addl. D.C. When an elaborate process for disposal of application filed by the occupancy tenant is prescribed under the applicable provisions, it was incumbent upon the competent authority to satisfy himself about the eligibility of the applicant and most importantly, the objection of the landowner and others interested in the proceeding should have received due consideration on merit. 13. As earlier noted the original landowner died on 04.08.1992 and yet notice was not sent in the Tenancy Case filed in the year 2002, in the name of the deceased. Moreover the legal status of the other occupancy tenant (Amzed WP(C) 5887/2010 Page 5 of 7
Ali) who is recognized by the landowner, was not considered by the Addl. D.C. and hence the ownership right was abruptly declared in favour of the 2 nd khatiandar without considering the merit of the objection of the 1st khatiandar and the land owner. 14. While the above deficiencies are noticed in the declaration given in the 2 nd khatiandar s favour, the learned Revenue Board ignored the fact that the successors of the landowners had received the notice on behalf of the deceased pattadar and had also filed objection before the original authority. But only because notice was not served on the legal heirs of the dead land owner (Abdul Haque) before the declaration was given in favour of the occupancy tenant, the learned Revenue Board passed the impugned order on 10.04.2007 (Annexure-9) by setting aside the order passed in the Tenancy Case No.15/2002 by the Addl. D.C. 15. The objective of the Tenancy Act is to regulate the rights and liabilities of agricultural tenants and their landlords and it is a piece of beneficial legislation intended to confer ownership right to occupancy tenants, who personally cultivate the land under his tenancy. Therefore application filed under the Tenancy Act is required to be considered with compassion in accordance with the procedure prescribed by the Tenancy Rules and the eligible occupancy tenant should not be made remediless for any technical defect in his application. But at the same time, ownership right cannot be declared under Section 23, without affording due opportunity of hearing to the landowner and other interested parties, as the same is mandated by Rule 10 and 11 of the Tenancy Rules itself. 16. Considering the above aspects, I am of the view that the 2 nd khatiandar should be permitted to apply afresh under Rule 9 of the Tenancy Rules. By this time since the revenue records have now been corrected to incorporate the names of the legal heirs i.e. Md. Innamul Haque and Md. Nawazul Haque (respondent Nos.4 and 5), the names of the landlords should be correctly reflected in Form No.5. As hearing is required to be afforded to all interested parties, the successors of the 1 st khatiandar (Amzed Ali) should additionally be reflected in the de novo application. The legal heirs of the 1 st khatiandar are arrayed herein as respondent Nos.6 to 10 and they and the landowner are represented by a common counsel. Therefore to expedite the WP(C) 5887/2010 Page 6 of 7
matter, the 2nd khatiandars should furnish an advance a copy of their application to the learned advocate Mr. P.K. Deka and he assures to file necessary objection in the Tenancy Case within 4(four) weeks. Consequently, the impugned order of the learned Revenue Board as well as the order passed by the Addl. D.C. in the Tenancy Case No.15/2002 are set aside by directing the petitioners to initiate fresh proceeding, as is ordered herein. After the application is received, the same be considered on merit after affording due hearing to all concerned under the Act and the Rules. It is ordered accordingly. 17. With the above order, this case is disposed of by leaving the parties to bear their respective cost. Roy JUDGE WP(C) 5887/2010 Page 7 of 7