Property rights under Article 300A cannot be impaired without concrete evidence of a disaster situation as per the Disaster Management Act, 2005.

JUDGMENT :

Devashis Baruah, J.

Heard Mr. K. Islam, the learned counsel appearing on behalf of the petitioners. Mr. B.J. Talukdar, the learned Additional Senior Government Advocate appears on behalf of the respondent Nos. 2, 3, 4 and 5 and Ms. N. Bordoloi, the learned Standing Counsel appears on behalf of the Revenue Department.

2. The petitioners herein are aggrieved by the Notification dated 30.03.2023 issued by the Deputy Commissioner, Dhubri whereby the respondent No. 2 in exercise of the powers under Section 34 of the Disaster Management Act, 2005 directed the concern persons/individuals, Institutions to stop all land filling and construction activities immediately and also directed the competent authority to submit report for further needful action. It is the case of the petitioners herein that the petitioners here are the owners of the land in question wherein they want to raise constructions but on account of the impugned order the petitioners are not in a position to exercise their rights over their lands in question.

3. This Court had issued notice to the respondents. In pursuance to the notice, an affidavit has been filed by the District Commissioner, Dhubri on 15.03.2024 wherein it has been mentioned that the impugned order was issued in view of the probability of flood vulnerability both natural and artificial, water pollution and change in the course of the water body and to protect the ecological integrity of the area. It was mentioned that the Dahar Jhagra Beel near River Gadadhar falls under the Revenue Villages Falimari Pt. I, Falimari Part II and Dhubirchar under Dhubri Revenue Circle. The said beel is notified under the Assam Fisheries Development Corporation and the area of the beel is 35 Hectares which is equivalent to 262 Bighas as per the record of the Assam Fisheries Development Corporation. It was averred that over the years the adjoining areas of the Dahar Jhagra Beel had undergone shrinkage due to unregulated and extensive development activities like earth filling, construction of residential/commercial building etc. An extensive drone survey if carried out could provide more accurate analysis of the extent of the encroachment in the Dahar Jhagra Beel near roadside from Dhubri to Gauripur. Further to that, it has also been mentioned that although the area covered by the beel and its adjoining areas are under the possession of the patta holders, no harm was observed till the land were being used for agriculture and allied activities. However, the rapid change in the land use pattern in the recent times including rampant earth filling, setting up of commercial establishments etc. have caused serious threat to the existence of the beel resulting in its shrinkage, bearing capacity and subsequent environmental repercussions.

4. This Court has duly heard the learned counsels appearing on behalf of the petitioners as well as also the Respondent Authorities.

5. From the materials on record it is clear that there is no doubt that the petitioners are the owners of the land in question. It is further seen from the records that this Court had given enough opportunities to the respondents to provide the survey which have been duly mentioned in the affidavit filed by the respondent No. 2. However, in spite of various opportunities being granted, the Respondents Authorities have not placed on record any such survey report.

6. For ascertaining as to whether the impugned order requires to be interfered with or not, it is relevant to take note of the provisions of the Disaster Management Act, 2005 (for short ‘the Act of 2005’). The term “disaster” has been defined in Section 2(d) which is reproduced herein under:

“(d) “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of