THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1108/2022
Md. Abdul Hussain & Anr. S/o Late Umar Ali, R/o Village Paschim Dhaniram Pathar, Near Adarsha Bazar, P.O. and P.S. Hajo, Dist.- Hojai, Assam - 782435.
2. Md. Faruk Ahmed S/o Late Moin Uddin R/o - Village Paschim Dhaniram Pathar, Near Adarsha Bazar, P.O. and P.S. Hajo, Dist.- Hojai, Assam - 782435.
VERSUS
The State of Assam & 4 Ors.
Rep. by the Commissioner and Secretary to the Govt. of Assam, Land and Revenue Department, Dispur, Guwahati-6.
2. The Director of Land Records and Surveys etc, Govt. of Assam, Rupnagar, Guwahati-32.
3. The Deputy Commissioner, Hojai Sankardevnagar, P.O. and P.S. Hojai, Dist.-Hojai, Assam.
4. The Circle Officer, Hojai Revenue Circle, P.O. and P.S. and Dist.-Hojai, Assam.
5. The Chairperson, Hojai Municipal Board, Mouza-Hojai, P.O. P.S. & Dist.-Hojai, Assam, PIN- 782435.
Advocate for the Petitioner : MR F K R AHMED
Advocate for the Respondent : GA, ASSAM
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
22.02.2022
Heard Mr. F. K. R. Ahmed, learned counsel for the petitioners and Mr. B. J. Talukdar, learned Standing Counsel, Revenue Department for the respondent Nos. 1 and 2. Also heard Mr. K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent Nos. 3 and 4.
The Circle Officer, Hojai Revenue Circle, Hojai, Assam on 05.01.2022 issued seven days notice to the petitioner No. 1 under the provision of Rule 18 (2) of the Assam Land and Revenue Regulation, 1886 in Encroachment Case No. 1/2021/183 to vacate the Government Grazing Reserve Land of Dag No. 8 at Village - Paschim Dhaniram Pathar under Hojai Mouza intimating him that on his failure to vacate the said land as directed, action under Section 18 (5) of said 1886 Regulation will be taken against him.
Being aggrieved with the same, the petitioners have preferred this writ petition stating that prior to this, on 02.11.2015, the Chairperson of Hojai Municipal Board issued encroachment notice under Section 159 of the Assam Municipal Act, 1956 with regard to the land in question to which the petitioner preferred Title Suit No. 81/2015 against the Hojai Municipal Board which is presently pending before the Court of learned Munsiff, Hojai, Sankardev Nagar, Hojai, Assam and is in the stage of cross-examination of DWs.
Petitioners have annexed copies of the plaint of said Title Suit No. 81/2015 as well as the written statement submitted by Hojai Municipal Board with regard to the eviction Page No.# 3/3 notice issued by the Hojai Municipal Board on 02.11.2015 to this petition.
Petitioners have admitted the fact that they have encroached the Government land and in the said Title Suit No. 81/2015, the petitioners as plaintiffs prayed for possessory right of the said land. In the schedule of the said Title Suit No. 81/2015 which is presently pending before the Court of learned Munsiff, Hojai, Sankardev Nagar, Hojai, Assam, the petitioners have clearly stated that the land at Dag No. 10 of Tauji Bahira No. 43 measuring about 30 Lechas of land is at Village- Dhanirampathar Ward No. 1, Mouza- Hojai, (at page 33 of Annexure-D to this petition) whereas from the impugned eviction notice dated 05.01.2022 (Annexure-G, at page Nos. 46/47 to this petition) it is seen that the land is at Dag No. 8 of Government Grazing Reserve of Village - Paschim Dhaniram Pathar and it is not the land at Dag No. 10 of Village- Dhanirampathar Ward No. 1, Mouza- Hojai.
As such, the prayer of the petitioners that the land indicated in the impugned eviction notice dated 05.01.2022 issued by the Circle Officer, Hojai Revenue Circle, Hojai, Assam is same with that of the land involved in said Title Suit No. 81/2015 is not found to be correct.
The Hon'ble Apex Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others reported in (2011) 11 SCC 396 has settled the law that encroachment of common land including community land cannot be taken away and that there cannot be any right over such public and Government land used for community.
As both the parcels of land described by the petitioners are different, and admittedly the petitioners have encroached the Government Grazing Land of Dag No. 8 at Village - Paschim Dhaniram Pathar of Hojai Mouza under Hojai Revenue Circle, Hojai, Assam and considering the above the prayer of the petitioners made in this writ petition being not tenable, this writ petition, being devoid of merit, stands dismissed.
JUDGE
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