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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MANISH CHOUDHURY, J.
Fakar Uddin Mazumder S/o Late Abdul Mia Mazumder – Petitioner
Versus
The State of Assam – Respondent
W.P. (C) No. 1052 of 2018
Decided On : 24-02-2022
Constitution of India,1950 – Article 226 – Government Land - Eviction - Claim that they are owners of the said piece of land by way of inheritance and have been residing there since last five generations for more than 100 years - They have claimed that they have built their residential houses over plot of land and also have planted trees, etc. - According to petitioners, the occasion to prefer writ petition has arisen when they came to know from a letter, written by respondent to other respondent, whereby, respondent no. 4 was requested to provide adequate as respondent no. 3 would be conducting an eviction as per the direction given by respondent - Whether persons who entered into possession otherwise than in accordance with Rule 16 would be recognized to be a person to have duly entered into possession of Government wasteland.
Finding of the Court: Court is of the view that petitioner could not make out a case of establishing a legal right over the land in question - In fact, on the other hand, from materials on the record, it appears to this Court that the land in question is Khas Government land and petitioner has no legal right over it, inasmuch as petitioner could not produce any order of settlement or a lease deed by appropriate authority in respect of land in question - Petitioner has also raised question that before eviction notice was issued, petitioner was not given any opportunity of hearing - Aforesaid question had already been examined by this Court as reported in Kundor Gaon Committee vs. State of Assam, 2006 Suppl GLT 400, wherein, it had been held that such ejectment has to be made forthwith and said Rule of 18 of settlement rules does not provide for issuance of any notice before eviction - When public interests for restoration of Government plot of land reserved for road and for general public is considered vis-a-vis to the private interests of petitioners, it is always public interest which shall prevail, more particularly, when petitioners have failed to make any bona fide claim - In view of the discussion made, this writ petition is found bereft of any merit and the same is liable to be dismissed - It is accordingly dismissed.
Result : Writ petition is dismissed
JUDGMENT :
MANISH CHOUDHURY, J.
1. The petitioners, 3(three) in nos. have preferred this writ petition invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking inter-alia a direction to the respondent authorities not to evict the petitioners from the purported lawful possession of their land without following the due process of law.
2. It is the case of the petitioners that they are residing at Village-Narainpur, Part-II within the jurisdiction of Hailakandi Police Station, District-Hailakandi. According to the petitioners, they are in possession of a piece of land measuring 2 Bighas, covered by Dag no. 349 and 350 and Patta Nos. 82 and 83, located in Village - Narainpur, Part-II. They have made a claim that they are the owners of the said piece of land by way of inheritance and have been residing there since last five generations for more than 100 years. They have claimed that they have built their residential houses over the plot of land and also have planted trees, etc. According to the petitioners, the occasion to prefer the writ petition has arisen when they came to know from a letter dated 19.02.2018, written by the respondent no. 3 to the respondent no. 4, whereby, the respondent no. 4 was requested to provide adequate force on 24.02.2018 as the respondent no. 3 would be conducting an eviction at Village-Narainpur, Part-II as per the direction given by the respondent no. 2 on 22.08.2007.
3. I have heard Mr. M.H. Laskar, learned counsel for the petitioners; Mr. P.S. Deka, learned Standing Counsel, Revenue and Disaster Management Department for the respondent no. 1; Ms. S. Sharma, learned Junior Government Advocate, Assam of the respondent nos. 2, 3 & 4 and Mr. R.A. Choudhury, learned counsel for the respondent nos. 5-39.
4. Mr. Laskar, learned counsel for the petitioners reiterating the projections made above, has submitted that the petitioners are in possession of periodic patta land measuring about 2 Bighas, mentioned above. As the petitioners are in possession of the said piece of land for a long duration of time, a process of summary eviction like one sought to be carried out by the respondent authorities in the case in hand, is not permissible in law. Since the petitioners have a bona-fide claim for the said piece of land, there ought to be an adjudication before such summary process of eviction. It is not the case of the respondents that the petitioners are in possession of the parcels of land for a short duration of time as the respondent authorities have admitted that the petitioners are in possession of the piece of land for a duration of 30 years. In such view of the matter, any notice served upon the petitioners for eviction from the said parcels of land are liable to be set aside. In support of his submissions, he has placed reliance in the decisions in Government of Andhra Pradesh vs. Thummala Krishna Rao and Another, (1982) 2 SCC 134, Kamala Kanta Deka vs. State of Assam and Others, 1983 (2) GLR 258 and Dhunseri Petrochem and Tea Ltd. vs. State of Assam and Others, 2018 (2) GLT 814.
5. Mr. Deka, learned Standing Counsel, Revenue and Disaster Management Department for the respondent no. 1 has referred to the affidavit-in-opposition filed by the respondent no. 2 to submit that an area of land measuring 15 Kattas 12 Chataks, covered by Dag No. 349 and Patta No. 2nd R.S. located in Narainpur Part-II is Government land as per the revenue records. When encroachment in respect of the said area of land was noticed, notices were served on 20.05.2017 upon the persons who were found in encroachment of Dag No. 349 and Patta No. 2nd R.S. as the same was made reserved for a road. Eviction from the said dag is necessitated for free movement of the common people. It is his submission that when a Government land is recorded in the revenue records for a pubic road, it is public interest which has to prevail over the private interest.
6. Ms. Sharma, learned Junior Government Advoc
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