Deben Das S/o Late Bharat Kalita vs State of Assam, Represented by the Commissioner and Secretary, Revenue Department

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Gau) 349

IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
HRISHIKESH ROY and PARAN KUMAR PHUKAN, JJ.
Shri Deben Das S/o Late Bharat Kalita and Ors. - Petitioners
Versus
The State of Assam, Represented by the Commissioner and Secretary, Revenue Department and Ors. - Respondents
WP(C) No. 4250, 4251, 4252 of 2009
Decided On : 12-08-2016

Advocates Appeared:
For the Petitioners: Mr. S.P. Roy, Mr. D. Nandi, Mr. R.P.N. Singh, Mr. C. Sarma, Mr. K. Rajbongshi, Mr. M.K. Raut, Mr. K Kalita
For the Respondents: Mr. P.S. Deka, Mr. N.J. Khataniar

Headnote:
Limitation Act, 1963 - Article 111 of Part-IX - Assam (Temporarily Settled Areas) Tenancy Act, 1971 - Sections 8, 3(7) and 2(c) - Public Premises Eviction Act - Assam Public Premises (Eviction of Unauthorized Occupants) Act, 1971 - Rule 18(3) and 18(2) - Eviction - Notice - Operating brick kiln - Petitioners are operating brick kiln on their occupied lands - They have acquired vested rights over these areas and therefore recourse to summary procedure for ejectment under Rule 18(2) of the Settlement Rules is untenable since notice/opportunity needn’t be given in summary procedure - Court of Revenue reported in AIR had held that Rule 18 of Settlement Rules is discriminatory and void, said provisions can’t be enforced, for ejectment of legitimate occupiers - Petitioners contend concerned area is not reserved for road or is roadside land or needed for public purpose. Therefore the authorities can opt for Rule 18(3) but not Rule 18(2), to clear the area - Option according to is recourse to the Assam Public Premises - Petitioners argue forcible eviction in a summary proceeding should not be allowed as the petitioners have been in occupation without any obstruction from as occupation is for last over 30 years - Learned Counsel claims a right of adverse possession – Held, Relevant to note that the occupied 46 Bigha, 2 Katha, 2 Lecha area of Deben Das and his 3 sons is ceiling surplus land and their vendors had no legal authority to sale such land to the current occupiers 26 Bigha, 3 Katha, 17 Lechas occupied by Ray is also ceiling surplus land. Such land vest on the Government and the petitioners have no legitimate right over those occupied area 43 Bigha, 3 Katha, 13 Lechas under occupation of area is admittedly Govt. land since the occupier himself has stated that he has applied for settlement - Impugned ejectment is not from any private land but the entire occupied area is Govt. land where none of the petitioners could establish any legal right - Total area occupied by petitioners measures few brick kiln operators are exploiting vast area for last many years for personal profit - This can’t surely be encouraged when various public needs are unfulfilled for want of land - Assets being scarce should be utilized for public good and interest of individuals can’t override the public necessity - Petitioners can’t also deserve settlement of Govt. land only restricted right for lesser area and limited term is conceived for brick kiln operators - Petitioners here have already secured much more than anyone is entitled - Land policy of the State - Writ petitions are dismissed

JUDGMENT AND ORDER :

Hrishikesh Roy, J.

Heard Mr. S.P. Roy, the learned Counsel appearing for the petitioners. Also heard Mr. P.S. Deka and Mr. N.J. Khataniar the learned Government Advocates who make submission on behalf of the respondents.

2. In these 3 cases, the petitioners have challenged eviction notices raising common grounds and the cases are disposed of with the following order.

3. It would be appropriate at the outset, to take note of the respective areas in each case from where, ejectment is proposed:-

WP(C) No. 4250/2009

Encroachment Case No. 40/09 - Eviction Notice was issued to Deben Das, the petitioner No.1 . The land Schedule in the notice is as under –

Land measuring 46 Bighas, 3 Kathas, 12 Lechas covered by F.C. Grant Patta No.1 of Rayati Khatiyan No.5 Dag No. (old) 31/247 (new), 31(old)/246 (new), Rayati Khatiyan No. 40, Dag No. 31 (old)/243 (New), Rayati Khatiyan No.39, Dag No.31(old)/242(new) and Rayati Khatiyan No.46, Dag No. 31(old)/245(new) of village-2, Kharguli, Chandrapur Circle, Mouza-Beltola, Kamrup, Assam, butted and bounded by –

North – River Brahmaputra,

South – Road

East – KBF Brick-field/river Brahmaputra,

West – Own land.

WP(C) No.4251/2009

Encroachment Case No.42/09 - Ejectment Notice was issued to Surendra Rai, the petitioner No.2 (who is not the owner of the schedule land), by the Addl. Deputy Commissioner (M), Guwahati on 14.9.2009.

The land Schedule was as under given below –

Mouza – Beltola

Village – 2 No. Kharguli

Dag No. 71, 72, 73, 78, 58

Measurement of the land – 36 Bighas 3 Katha 3 Lechas.

WP(c) No.4252/2009

Encroachment Case No. 38/09 - Similar Notice was issued to the petitioner Raj Kishore Ray, by the Addl. Deputy Commissioner (M), Guwahati on 14.9.2009.

The land Schedule was shown as under –

Mouza – Beltola

Village – 2 No. Kharguli

Dag No. 12, 13, 14, 15, 16, 17, 38, 39, 40

Measurement of the land – 26 Bighas 3 Katha 17 Lechas.

SUBMISSIONS OF PETITIONERS

4.1 The petitioners are operating brick kiln on their occupied lands. They have acquired vested rights over these areas and therefore recourse to summary procedure for ejectment under Rule 18(2) of the Settlement Rules is untenable since notice/opportunity needn’t be given in the summary procedure.

4.2 Mr. S.P. Roy submits that as this Court in Bandhana Goala vs. Assam Board of Revenue reported in AIR 1972 Gau 11 had held that Rule 18 of the Settlement Rules is discriminatory and void, the said provisions can’t be enforced, for ejectment of legitimate occupiers.

4.3. Next the petitioners contend that the concerned area is not reserved for road or is roadside land or needed for public purpose. Therefore the authorities can opt for Rule 18(3) but not Rule 18(2), to clear the area. Another option according to Mr. Roy is recourse to the Assam Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as “the Public Premises Eviction Act”)

4.4 The petitioners argue that forcible eviction in a summary proceeding should not be allowed as the petitioners have been in occupation without any obstruction from the Govt. authorities. Moreover as the occupation is for last over 30 years, the learned Counsel claims a right of adverse possession, under Article 111 of Part-IX of the Limitation Act, 1963 and contends that the state has abdicated their right to evict the occupiers, under the principles of right of adverse possession.

SUBMISSION OF THE RESPONDENTS

5.1 Mr. P.S. Deka, the learned Govt. advocate projects that defects in the eviction mechanism noted in the case of Bandhana Goala (supra) where the original Rule 18(2) of the Settlement Rules was declared to be discriminatory, was cured through the amendment of the Sub-Rule (2) of Rule 18 w.e.f 21.3.1997. When the amended provisions was then judicially examined, it was observed in Bhanumati Ghosh vs. State of Assam reported in 2015 (4) GLT 370 that the earlier defect and infirmity found

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