IN THE HIGH COURT OF GAUHATI
WP(C) Nos. 7516 and 7498/2019
Decided On: 30.11.2021
Sanjay Gogoi and Ors.
Vs.
The State of Assam and Ors.
Hon'ble Judges/Coram:
Manish Choudhury, J.
Counsels:
For Appellant/Petitioner/Plaintiff: P.K. Gogoi, Advocate
For Respondents/Defendant: P.S. Deka, Standing Counsel and N. Goswami, Junior Government Advocate
DECISION
Manish Choudhury, J.
1. Both these writ petitions - W.P.(C) No. 7516/2019 and W.P.(C) No. 7498/2019 - have been taken up together at the request of the learned counsel for the parties as both the writ petitions involve similar issue.
2. Heard Mr. P.K. Gogoi, learned counsel for the petitioners in both the writ petitions; Mr. P.S. Deka, learned Standing Counsel, Revenue and Disaster Management Department, Government of Assam for the respondent No. 1; and Mr. N. Goswami, learned Junior Government Advocate, Government of Assam for the respondent Nos. 2 and 3.
W.P.(C) No. 7516/2019
3. The petitioner herein has claimed that he has been in occupation of a plot of Government land measuring 1 Katha and 10 Lessas, covered by Dag Nos. 89 & 90, situated at Darikapar Khatapathar, Sivasagar, Mouza - Nagarmahal, Sivasagar Revenue Circle ['subject-plot No. 1'] and has constructed his temporary dwelling house thereon. Claiming himself to be a landless person and to be in occupation of the subject-plot No. 1 for around 22 years, he has submitted that he has been paying land revenue in respect of the subject-plot No. 1 up to 2019-2020. Asserting as above, the petitioner stated to have submitted a Kabula application [Application for settlement of waste land] before the Deputy Commissioner, Sivasagar seeking settlement of the subject-plot No. 1 in his favour. As no discernible action regarding the matter of settlement of the subject-plot No. 1 was found to have been taken by the respondent authorities, the petitioner has approached this Court invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India seeking a direction in the nature of mandamus to the respondent authorities to grant allotment/settlement of the subject-plot No. 1 in his favour by issuing a Patta. The petitioner is apprehending that the respondent authorities might evict the petitioner without giving any prior notice or giving any opportunity of hearing.
W.P.(C) No. 7498/2019
3.1. The petitioner herein has claimed that she has been in occupation of a plot of Government land measuring 1 Katha and 5 Lessas, covered by Dag No. 38, situated at Namtial Pathar, Sivasagar, Mouza - Nagarmahal, Sivasagar Revenue Circle ['subject-plot No. 2'] and has constructed her temporary dwelling house thereon. Claiming herself to be a landless person and to be in occupation of the subject-plot No. 2 for around 15 years, she has submitted that she has been paying land revenue in respect of the subject-plot No. 1 up to 2019-2020. Asserting as above, the petitioner stated to have submitted a Kabula application before the Deputy Commissioner, Sivasagar seeking settlement of the subject-plot No. 2 in her favour. As no discernible action regarding the matter of settlement of the subject-plot No. 2 was found to have been taken by the respondent authorities, the petitioner has approached this Court invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India seeking a direction in the nature of mandamus to the respondent authorities to grant allotment/settlement of the subject-plot No. 2 in her favour by issuing a Patta. The petitioner is apprehending that the respondent authorities might evict the petitioner without giving any prior notice or giving any opportunity of hearing.
4. Mr. Gogoi, learned counsel for the petitioners, by referring to the Kabula applications, has submitted that the areas of land under possession of the two petitioners are 1 Katha and 10 Lessas [subject-plot No. 1] and 1 katha and 5 Lessas [subject-plot No. 2] respectively, which are permissible to be settled. They have been in occupation of the subject-plot No. 1 and subject-plot No. 2 for 22 years and 15 years respectively. As the Kabula applications have been filed by the petitioners before the respondent authorities seeking allotment/settlement of those two plots of land, it is incumbent on the part of the respondent authorities to process the said applications considering the fact that the petitioners are landless persons.
5. In response, Mr. Deka, learned Standing Counsel, Revenue Department has referred to the stand taken in the affidavit-in-opposition filed on behalf of the State respondents. By making such reference, he has objected to the above submissions of the learned counsel for the petitioners about the claims of the two petitioners for settlements. He has submitted that the respondent No. 3 i.e. the Circle Officer, Sivasagar Revenue Circle caused an enquiry in respect of the Kabula application made by the petitioner in the writ petition, W.P.(C) No. 7516/2019 and found that the Dag number and Patta number mentioned by the said petitioner in his Kabula application were not Dag number and Patta number as per revenue records but the same are relatable to serial numbers of receipts used for collecting penalty from the petitioner for encroachment of the subject-plot No. 1. As per the revenue records, the subject-plot No. 1 is covered by Dag No. 9 which is shown reserved for Khawoi, and Dag No. 11 which is shown as Ali Khawoi of Railways. In respect of the petitioner in the writ petition, W.P.(C) No. 7498/2019, he has submitted that the respondent No. 3 also caused an enquiry in respect of the Kabula application seeking allotment/settlement of the subject-plot No. 2 by the petitioner. Therein also, the Circle Officer has reported that the projected Dag No. 38, as mentioned by the petitioner, is not a proper Dag number as per revenue records in respect of subject-plot No. 2 which is under the unauthorized occupation of the said petitioner. The No. 38 is, in fact, a serial number for the receipt used for collection of penalty from the petitioner for her unauthorized occupation on the subject-plot No. 2. It has been reported that the subject-plot No. 2 bears Dag No. 3 and the area of land under it is 1 Katha and 5 lessas where the petitioner is found residing by constructing a house. The subject-plot No. 2 is shown as reserved for Public Works Department in the land revenue records. He has submitted that the petitioners have only paying Bedakhali Jarimona [Encroachment Penalty], which is earlier known as Touzi Bahira Revenue and the change of nomenclature came out in the year 1992 pursuant to a circular issued by the Government in the Revenue Department.
6. Mr. Goswami, learned Junior Government Advocate has also referred to the similar stands taken in the affidavit-in-oppositions filed in both the cases on behalf of the respondent No. 2 i.e. the Deputy Commissioner, Sivasagar. He has also endorsed to the above submissions of Mr. Deka, learned Standing Counsel, Revenue Department.
7. I have considered the submissions of the learned counsel for the parties and also perused the materials brought on record by the parties through their respective pleadings.
8. The petitioner in the writ petition, W.P.(C) 7516/2019 has stated that he is in occupation of an area of land measuring 1 Katha and 10 Lessas [subject-plot No. 1] whereas the petitioner in the writ petition, W.P.(C) 7498/2019 has claimed that she is in occupation of an area of land measuring 1 Katha and 5 Lessas [subject-plot No. 2]. It has not been denied by either of them that the said two plots of land are Government lands. By submitting their Kabula applications before the respondent No. 2, they had sought for settlement of those plots of land in their favour for the purpose of constructing dwelling houses. It has been mentioned by them that they have been in occupation of those plots of land for around 22 years and 15 years respectively.
9. In respect of both the plots of land i.e. the subject-plot No. 1 and subject-plot No. 2, the respondent No. 3 caused enquiries pursuant to their Kabula applications and submitted two separate reports before the respondent No. 2, which have been annexed to the affidavits-in-opposition. As has been submitted as above, the numbers the petitioners have claimed to be Dag/Patta numbers of the said two plots of land are, in fact, serial numbers of the receipts whereby penalties were collected from the petitioners for their unauthorized occupation over the said two plots of land. Though the petitioners have claimed that they have been paying revenue to the Government but the same are Bedakhali Jarimona i.e. penalties collected from them for encroaching upon the Government lands. Bedakhali Jarimona is synonymous with Touzi Bahira revenue.
10. As per the definition provided for 'Settlement' in Rule 2 [f] of the Rules ['the Settlement Rules', for short] framed under the Assam Land and Revenue Regulation, 1886 ['the Regulation, 1886', for short], it inter alia means the leasing of land at the disposal of the Government. Rule 15 of the Settlement Rules has enjoined that no person shall have any right to settlement merely because he is in occupation of land not included in any lease granted by the State Government either to himself or to any other person. A prohibition is incorporated in Rule 16 of the Settlement Rules to the effect that lease shall be issued on written application only, and no person shall enter into possession of waste land in any area until a lease has been issued to him or otherwise a written permission by the Deputy Commissioner has been granted to him, pending issue of such lease, to enter into possession. As per Rule 17 of the Settlement Rules, if an occupant to whom settlement is offered accepts it then he shall be liable for payment of the revenue assessed on the land. A power, under Rule 17A of the Settlement Rules, has been vested in the Deputy Commissioner who may at any time on application or of his own motion, assessee increment or grant reduction in the revenue in proportion to the change in the area of the lease as a result of gain by alluvion or by dereliction of a river, or loss by diluvion, during the currency of the settlement, subject to observance of the procedure indicated therein. Rule 18 of the Settlement Rules has provided for ejectment.
11. For ready reference, Rule 18[1] and Rule 18[2] are quoted hereunder:-
Rule 18. Ejectment.-
(1) Subject as hereinafter provided, the Deputy Commissioner may eject any person from land over which no person has acquired the rights of a proprietor, landholder, or settlement-holder.
(2) When such person has entered into possession of Government khas land, or Waste land or estate over which no person has acquired the rights of a proprietor, hand-holder or Settlement-holder or any land that has previously been reserved roads or roadside land or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when further, there is no bona fide claim of right involved he may be ejected or ordered to vacate the land forthwith, and the Deputy Commissioner may sell, confiscate or destroy any crop raised, or any building or other construction erected without authority on the land.
12. The Hon'ble Supreme Court of India in State of Assam and others vs. Rakha Kanoo [Smt.] and others, reported in 1996 [8] SCC 692, had to occasion to examine the provisions of Rule 16, Rule 17, Rule 17A and Rule 18 of the Settlement Rules framed under the Regulation, 1886 in the context of the right of a person who had been entered into possession of Government land otherwise than in accordance with Rule 16, from whom the Mauzadar had collected amounts in the form of Tauzi Bahira Revenue. It has been held that such collection of Touzi Bahira Revenue from persons other than those covered by Rule 16, Rule 17 and Rule 17A would not confer any right on such person in unauthorized occupation. It has also been held that such collection has to be regarded as illegal collection and it does not bind the Government, because of the mandate embodied in Rule 16. From the said decision, it has emerged that collection of Tauzi Bahira Revenue does not amount to collection of revenue and the possession of a person in unauthorized occupation from whom Tauzi Bahira Revenue is collected, does not become lawful because of such collection. It is also discernible from the said decision that merely for the fact that Touzi Bahira Revenue has been collected from such a person, the person who is a trespasser of Government land, cannot be evicted from such land to recover possession of land under Rule 18 of the Settlement Rules.
13. Form the two reports of the respondent No. 3 and the stand taken by the State respondents in the affidavits-in-opposition, it is noticed that the two petitioners have only been paying Bedakhali Jarimona [Encroachment Penalty], also known as Tauzi Bahira, and they have no bona fide claims in respect of the subject-plot No. 1 and the subject-plot No. 2 either as a proprietor or a land-holder or a settlement holder or a person who has come into occupation of the said plots under the provisions of Rule 16 of the Settlement Rules and in view of Rule 15, they have no right to claim settlement.
14. The reports of the respondent No. 3 have mentioned that Dag No. 9 and Dag No. 11 under the subject-plot No. 1 have been reserved for Khawoi [pond] and Ali Khawoi [roadside pond] Railway respectively. On the other hand, Dag No. 3 under the subject-plot No. 2 has been reserved for Public Works Department in the revenue records. Sub-rule [2] of Rule 18 of the Settlement Rules has inter alia prescribed that when a person has entered into possession of Government Khas land or waste land or estate over which no person has acquired the rights of a proprietor or a land-holder or settlement holder or any land that has previously been reserved roads or roadside land or for grazing of village cattle or for other public purposes, and when there is no bona fide claim of right involved he may be ejected or ordered to vacate the land forthwith, and the Deputy Commissioner may sell, confiscate or destroy any crop raised, or any building or other construction erected without authority on the land.
15. The State respondents have asserted that as per the revenue records, the subject-plot No. 1, covered by Dag No. 9 and Dag No. 11, has been reserved for Khawoi [pond] and Ali Khawoi [roadside pond] Railway and the subject-plot No. 2, covered by Dag No. 3, has been reserved for Public Works Department. The petitioners have not been able to rebut the said position about the status of the two plots of land by any supporting materials. The purposes for which the two plots of land are reserved are clearly meant for benefits of the public.
16. As against the aforesaid stand of the State respondents, the petitioners have contended that as they are landless persons they are entitled to settlement of the Government land as per the land policies of the Government whereas the State respondents' stand is that any land already reserved for public purpose cannot be settled in favour of any individual.
17. In this connection, a reference to the decision of the Hon'ble Supreme Court in Jagpal Singh and others vs. State of Punjab and others, reported in [2011] 11 SCC 396 appears relevant. In Jagpal Singh [supra], the issue for consideration was with regard to illegal encroachment of common village land/community land and regularization of such land in favour of encroachers due to their occupation of such land for long duration. The land in question in the said case was recorded as pond in the revenue records. It has been held that regularization of such common village land in favour of private individuals who had been occupying such land for long duration was not permissible. It is demonstrated from the decision in Jagpal Singh [supra] that even if any person has built houses on such kind of land, such person must be ordered to remove their constructions and possession of the land must have to be handed back.
18. The petitioners have not been able to show any provision either in the Land Policy, 1989 or the Land Policy, 2019 which permits settlement of land which are reserved for public purpose as per the revenue records, in favour of any individual applicant for homestead purpose. At the cost of repetition, it is iterated that the plots of land herein are reserved for Khawoi [pond], Ali Khawoi [roadside pond] Railway and Public Works Department, meaning thereby, they are reserved and meant for common use of the public. The Land Policy, 2019 in Clause 1.14, like Rule 15 of the Settlement Rules, has laid down that mere possession by way of encroachment shall not be a criteria for entitlement to get allotment/settlement of Government land. Since encroachment has to be removed forthwith, the system of collecting Encroachment Penalty [Bedakhali Jarimona] has been discontinued. It is trite to state that no direction in the nature of mandamus is to be made to an authority to act contrary to any extant provision in law.
19. Considering the fact that both the petitioners are in unauthorized occupation of plots of Government lands reserved for Khawoi [pond], Ali Khawoi [roadside pond] Railway and Public Works Department respectively, which are undoubtedly for public purpose and/or common use of the community, by paying Encroachment Penalty [Bedakhai Jarimona], their prayers for a direction in the nature of mandamus to the respondent authorities to grant settlement of the subject-plot No. 1 and subject-plot No. 2 respectively in their favour cannot be acceded to. Consequently, both the writ petitions are found not entertainable and the same are liable to be dismissed. It is accordingly ordered. No cost.
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