Gauhati HC in Tetlirtol Unnayan Samiti & Ors. vs. State of Assam [06.11.2023]

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/23/2015

TETLIRTOL UNNAYAN SAMITI and 12 ORS
REP. HEREIN BY ITS PRESIDENT MD. MONOWAR HUSSAIN HAVING ITS
OFFICE AT VILLAGE TETELIRTOL, MOUZA- JANIA DIST. BARPETA,
ASSAM.

2: MONOWAR HUSSAIN
S/O MD. SANU KHAN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

3: BAHAZ UDDIN
S/O NAYEJ UDDIN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

4: ABBAS ALI
S/O IMAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

5: ABDUL MAZID
S/O ABDUL GONI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

6: JAHIDUL ISLAM
S/O MANDAJ ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

7: BASER ALI
S/O BAHAJ UDDIN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

8: UHAR ALI
S/O IMAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

9: IDRISH ALI
S/O AANJU MIA R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

10: RAIMAN NESSA
C/O KANTU SIKDAR R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

11: ABJAL KHAN
S/O USMAN ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

12: ABDUL KHALEQUE
S/O RUSTAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

13: RASEDA BEGUM
W/O RAMJAN ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM

VERSUS

THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
REVENUE REHABILITATION AND DISASTER MANAGEMENT
DEPARTMENT, SACHIVALAYA, GUWAHATI- 781006.

2:THE DEPUTY COMMISSIONER

BARPETA DISTRICT
BARPETA
ASSAM.

3:ADDITIONAL DEPUTY
COMMISSIONER
BARPETA
DIST. BARPETA
ASSAM.

4:THE CIRCLE OFFICER
BAGHBAR REVENUE CIRCLE
BAGHBAR DIST. BARPETA
ASSAM

For the Petitioner (s) : Mr. B.D. Goswami, Advocate.
                        Mr. J.M. Gogoi, Advocate.

For the Respondent (s) : Mr. N. Goswami, Advocate.

HONOURABLE MR. JUSTICE DEVASHIS BARUAH
BEFORE

Order

06.11.2023 

The instant writ petition has been filed by 13 Petitioners being aggrieved by the notices issued to evict the Petitioner Nos. 2 to 13 by the Circle Officer, Baghbar Revenue Circle dated 30.12.2014 in respect to Encroachment Case No. 4/2006-07.

2. It is the case of the Petitioners herein that the Petitioners are river erosion affected persons and they are entitled to settlement over the land under their possession and as such the Petitioners have approached this Court challenging the said notices.

3. Mr. N. Goswami, the learned counsel appearing on behalf of the Respondent Nos. 2, 3 & 4 submits that as per the Government Land Policy of 2019 as well as also the judgment of the Supreme Court in the case of Jagpal Singh vs. State of Punjab reported in (2011) 11 SCC 396, the question of settlement of the Petitioners over the said lands does not arise inasmuch as those lands have been specifically earmarked as village grazing reserve.

4. Mr. B.D. Goswami, the learned counsel appearing on behalf of the Petitioners submits that although the Petitioners may not have a right to get the settlement over the lands presently under their possession in view of the well settled principles of law laid down in the case of Jagpal Singh (supra), but the Petitioners being erosion affected persons are entitled to settlement of Govt. waste lands, to which the Petitioners may be given the liberty to file individual applications within a stipulated time and the Petitioners should not be disturbed till such applications are disposed of.

5. After hearing the learned counsels for the parties, this Court is of the opinion that the question of interference with the notices impugned in the instant proceedings does not arise inasmuch as the Petitioners herein have no right to remain in possession or even get settlement of the lands which have been specifically earmarked for village grazing reserve. Be that as it may, the materials on record clearly show that the Petitioners are erosion affected persons and as such would be entitled as per Government Land Policy of 2019 for seeking allotment/settlement of Government waste lands provided they meet the eligibility.

6. Accordingly, this Court therefore disposes of the instant writ petition thereby granting liberty to the Petitioners herein to file individual applications before the District Commissioner, Barpeta within 30 days from the date of the instant order as per the provisions of the Government Land Policy of 2019. The Respondent Authorities as well as the Revenue Department of the Government of Assam shall duly consider such applications as per the extant Land Policy. It is further made clear that till the said applications are not disposed, the Respondent Authorities shall not disturb the possession of the Petitioners over the lands in question.

7. With the above observations and directions, the instant writ petition stands disposed of.

Gauhati HC in Md. Abdul Hussain & Anr. vs. State of Assam & Ors. [22.02.2022]

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

Gauhati HC in Lalit Pegu & Ors. vs. State of Assam & Ors. [25.11.2021]

THE GAUHATI HIGH COURT 

 (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) 

Case No. : WP(C)/986/2017 

 LALIT PEGU and 6 ORS. 

VERSUS 

THE STATE OF ASSAM and 2 ORS. 

Advocate for the Petitioner : MS.M DAS 

Advocate for the Respondent : 

BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA 

ORDER

25.11.2021 

Heard Mr. L. Talukdar, learned counsel for the petitioners; Ms. S. Sarma, learned Government Advocate for respondent Nos. 2 & 3 and Mr. P.S. Deka, learned Government Advocate for the respondent no. 1.

2. The writ petitioners claim to be persons affected by erosion and who were originally residents of Majuli. Because of erosion they were compelled to shift to occupations and have been residing in No. 1 Chowdung Gaon under Charaibahi Mouza within Jorhat West revenue Circle. The petitioners and their families have been residing in the said area for more than last 20 years but they have been denied permanent settlement in spite of applications made. The grievance of the petitioners are that similarly situated persons within the vicinity who were erosion affected have already been settled in the area on the basis of applications made by them and proposals forwarded by the Revenue Authorities.

3. The learned counsel for the petitioners refers to a communication dated 5th September, 2014 (Annexure-9, Page-28) issued by the Deputy Commissioner, Jorhat to the Addl. Chief Secretary to the Government of Assam, Revenue & Disaster Management Department, Dispur, Guwahati-6. The said communication, according to the learned counsel for the petitioners is in respect of the settlement sought for by the petitioners and other similar situated persons. The learned counsel for the petitioners submits that the land presently where the petitioners are residing is about 37 Bighas and is covered by Dag No. 757 of No. 1 Chawdung Gaon, Charaibahi Mouza under Jorhat West Revenue Circle, Jorhat. It is revealed from the said communication that the area is reserved as Village Grazing Reserve Land (VGR) and there were some portions of the said VGR land before settled with other similarly situated persons by de- reserving the same. The learned counsel for the petitioners submits that the petitioners having been residing in the same village for the last 20 years also deserve similar treatment and their applications having not been appended to, the present writ petition has been filed seeking appropriate orders from this Court.

4. The learned counsel for the respondent No. 2 contested the matter by filing an affidavit-in-opposition.

5. A bare perusal of the affidavit reveals that proposals have been sent to the Government for settlement of flood and erosion affected families like the petitioners. It is admitted by the Government that the petitioners have been residing on the said land for about 20 years and have been fine for encroachment which they have already paid for the last 20 years.

6. Having heard the learned counsels for the parties and having perused the pleadings on record, it is seen that there is no dispute that the petitioners are erosion and flood affected families. The Government also does not dispute the fact that they are uprooted from the place of Majuli because of flood and that they settled in No. 1 Chawdung Gaon, Charaibahi Mouza under Jorhat West Revenue Circle. However, what is also seen is that for other similarly situated persons like the petitioners, a part of VGR land covered by Dag No. 757 of No. 1 Chawdung Gaon, Charaibahi Mouza have been de-reserved by the Government for settlement of the flood and erosion affected families. This, however, is the conflict with the law of the Apex Court laid down in Jagpal Singh and Ors Vs. State of Punjab and Ors reported in (2011) 11 SCC 396. The State Authorities are also aware of the fact as the same is reflected in the communication dated 05.09.2014 (Annexure-9, Page-28). But what cannot be denied is that the petitioners are persons who are victims by erosion and flood and are compulsorily uprooted from their original homestead in Majuli and were compelled to re-settle in No. 1 Chawdung Gaon, Charaibahi Mouza under Jorhat West Revenue Circle. It is also not disputed by the respondents that they have been residing there for last 20 years and the authorities concerned have also consistently imposed fine on the petitioners for encroachment for the past 20 years.

7. Considering the law laid down by the Apex Court in Jagpal Singh (Supra), this Court declines to accept the prayer of the petitioners that their prayer for settlement in the VGR land be considered as has been done in the cases of other similarly situated persons. However, this Court cannot also ignore the fact, not disputed by the Government, that the petitioners were compelled to be uprooted from their original homestead in Majuli because of erosion of flood and have been residing in No. 1 Chawdung Gaon, Charaibahi Mouza under Jorhat West Revenue Circle.

8. This Court is of the view that ends of justice will be served if the writ petition is disposed of with a specific direction to the respondent No. 2, Deputy Commissioner, Jorhat to make necessary enquiries and verification into the matter and pass appropriate orders on their proposals for settlement in a suitable area as permitted under the law. The Deputy Commissioner, Jorhat will cause proper enquiry be made to verify if suitable land is available within the vicinity of the land where the petitioners are presently residing, which can be considered for settlement in favour of the petitioner in terms of the provisions of law.

9. Under the circumstances, it is directed that the Revenue Authority, Jorhat including the Deputy Commissioner, Jorhat will forthwith and submits take necessary steps for identification of suitable land on which the petitioners can be settled permanently in terms of the above and pass appropriate orders thereon.

10. The entire exercise directed to be completed within a period of four months from today.

11. With the above directions, the writ petition stands disposed of. No order as to costs.

Gauhati High Court in Plaban Das vs. The State of Assam and Ors. [21.06.2018]

IN THE HIGH COURT OF GAUHATI

WP (C) 3997/2018

Decided On: 21.06.2018

Plaban Das

Vs.

The State of Assam and Ors.

Hon'ble Judges/Coram:
Arup Kumar Goswami, J.

Counsels:
For Appellant/Petitioner/Plaintiff: D.C.C. Phukan, Advocate
For Respondents/Defendant: GA

JUDGMENT

Arup Kumar Goswami, J.

1. Heard Mr. D.C.C. Phukan, learned counsel appearing for the petitioner. Also heard Mr. P.S. Deka, learned Standing counsel, Revenue Department, appearing for respondent No. 1 as well as Ms. M. Bhattacharjee, learned State counsel, appearing for respondent Nos. 2 and 3.

2. The case of the petitioner is that he is in possession of a plot of Government land measuring 1 Bigha, covered by Dag No. 1 of Revenue Village-Panikhaiti, Mouza-Panbari, since the year 1983.

3. However, it must be pointed out at the very beginning that the representation dated 11.04.2017 submitted by the petitioner to the Circle Officer, Chandrapur Revenue Circle, goes to show that the petitioner has referred the name of the village as "Khankar Village" and not "Panikhaiti". In paragraph 6 of the writ petition also, Dag No. 1 is stated to be in Khankar Revenue Village.

4. Mr. Deka submits that there is no village called "Panikhaiti" and that Dag No. 1 is in Khankar Village as would be demonstrated by the impugned order dated 22.05.2018.

5. Further case of the petitioner is that the aforesaid Dag No. 1 is abutted on the Southern side by a plot of land measuring 6 Bighas 1 Katha and 2 Lechas, covered by Patta No. 23 of Revenue Village-Khankar, Mouza-Panbari, owned by one Sri Dilip Kumar Bhattacharya and the said Dilip Bhattacharya had executed a Special Power of Attorney on 16.12.2015 authorizing the petitioner to look after, manage and protect the aforesaid plot of land. The petitioner had set up a small scale industry over the plot of land for manufacturing Steel Fabrication, Biogas Holder, Water Drum, etc.

6. On 06.04.2015, a notice was issued by the Circle Officer, Chandrapur Revenue Circle, directing the petitioner to vacate the Government land. The petitioner approached this court challenging the notice dated 06.04.2015 in WP(C) 2390/2015. The writ petition was disposed of by an order dated 05.05.2015 (Annexure-8) directing the petitioner to approach the authority which had issued the impugned eviction notice dated 06.04.2015 with appropriate representation within ten days, and observing that till the disposal of the petitioner's representation, the parties will maintain status quo.

7. The petitioner approached this court again by filing a writ petition, being WP(C) 1434/2017, with the grievance that though the petitioner's representation, submitted in pursuance to the order dated 05.05.2015, passed in WP(C) 2390/2015 was pending consideration, an officer from the office of the Circle Officer, Chandrapur Revenue Circle, visited the business premises of the petitioner on 03.03.2017 and informed him that an eviction operation would be carried out within a short period without any further notice. WP(C) 1434/2017 was disposed of by an order dated 10.03.2017.

8. A perusal of the order dated 10.03.2017 goes to show that submission was advanced by the learned counsel for the petitioner that an application for settlement of the land in question had been made by the petitioner and the same was under process. The writ petition was disposed of directing the respondent No. 3 therein, namely, Circle Officer, Chandrapur Revenue Circle, to comply with the earlier order of the court dated 05.05.2015, passed in WP(C) 2390/2015, and to pass appropriate order. Liberty was also granted to the petitioner to file a fresh representation and, till the representation was considered by the Circle Officer, status quo was directed to be maintained in respect of the land in question.

9. A notice dated 24.03.2017 was issued to the petitioner by the Circle Officer, Chandrapur Revenue Circle, directing him to appear with all relevant documents in connection with the order dated 10.03.2017 passed in WP(C) 1434/2017. Thereafter, the impugned order dated 22.05.2018 was passed by the Circle Officer, Chandrapur Revenue Circle, rejecting the petition/representation filed by the petitioner. The relevant portion of the impugned order reads as follows:

"ORDER

Perused the petition filed by Sri Plaban Das (petition dtd. 10.04.2017). Also, perused the Hon'ble Gauhati High Court order dated 10.03.2017.

On perusal of the petition submitted by the petitioner it is observed that he has stated in his petition that a plot of Govt. land measuring 1 (one) Bigha covered by Dag No. 1 at village: Khankar under Mouza: Panbari, is in continuous possession of Sri Plaban Das since last 30 years and that he has been paying the Panchayat Tax also to the local authority.

However, on field verification alongwith the LR staff concerned it has been observed that Sri Plaban Das has been encroaching a plot of Govt. land (reserved for VGR) measuring 3 (three) Bigha, 3 (three) Katha 15 (fifteen) Lecha covered by Dag No. 1 at village: Khankar under Mouza: Panbari by constructing various unauthorized structures.

The representation filed by Sri Plaban Das is rejected since I am of the opinion that such encroachment have reduced the area which were reserved in the interest of public and ecological balance.

Given under my hand and seal on the 22nd Day of May, 2018."

10. A perusal of the said order goes to show that the petitioner had encroached Government land reserved for Village Grazing Reserve (VGR), measuring 3 Bigha 3 Katha 15 Lecha at village Khankar. Village grazing grounds are notified under Rules for the Allotment of Grazing Grounds framed under the Settlement Rules, which in turn, is framed under Assam Land And Revenue Regulation, 1886. Village grazing grounds are meant to be used as a grazing ground free of charge by persons other than professional graziers, who can use the same only in exceptional circumstances. In paragraph 18 of the writ petition, the petitioner has stated that he is apprehending eviction from land measuring 1 Bigha, covered by Dag No. 1. There is no averment in the writ petition that he is not in possession of 3 Bigha 3 Katha 15 Lecha of Government land. There is also no averment in the writ petition contesting the fact that Dag No. 1 of Khankar village, under Panbari Mouza is VGR land, as stated in the impugned order.

11. In Jagpal Singh v. State of Punjab, reported in (2011) 11 SCC 396, the Supreme Court had the occasion to say, at paragraph 4 of the judgment, as follows:

"4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper.............."

12. It was further observed at paragraph 23 as follows:

"23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village................. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

13. Having regard to the above pronouncement of the Supreme Court, it is evident that VGR land cannot be settled with a private individual for setting up of industry. There being no infirmity, I see no good ground to entertain this petition and, accordingly, the writ petition is dismissed. No cost.