Delay in filing a writ petition affects its maintainability; mere possession does not create enforceable rights against state claim over khas land.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The present writ petition under Article 226 of the Constitution of India has been filed with the following prayers:

“In the premises aforesaid, it is most respectfully prayed that Your Lordship would be pleased to admit this petition call for records, issue notice upon the respondents to show cause as to why a writ of mandamus should not be issued directing the respondents authorities to give settlement to the petitioner and or restore the old patta vide Final Khatian No. 76 dated 02.02.1961 and or direct the respondent authorities to make settlement/allotment of the land measuring 2B-3K-12L under Dag No. 197 (Old)/214 (New), Khatian No. 76, village Bhalukmari under Bilasipara Revenue Circle, Bilasipara, Dist. Dhubri, Assam and/or cause or causes being shown and upon hearing the parties and on perusal of the records, be pleased to make the rule absolute by granting complete and adequate relief to the petitioner and/or pass such other order or orders as Your Lordships may deem fit and proper.

Pending disposal of the case the petitioner may not be evicted from the land measuring 2B-3K-12L under Dag No. 197 (Old)/214 (New), Khatian No. 76, village Bhalukmari under Bilasipara Revenue Circle, Bilasipara, Dist. Dhubri, Assam, in the interest of justice.”

2. As per the facts projected, the petitioner is in possession of land measuring 2 Bigha, 3 Katha, 12 Lecha under Dag No. 197 (Old)/214 (New), Khatian No. 76, village Bhalukmari under Bilasipara Revenue Circle in the district of Dhubri. It is contended that the land is under his possession since the time of his great grandfather late Pashu Sk. It is the case of the petitioner that the name of the grandfather of the petitioner- Pashu Sk was recorded as a Khatiandar, under the Goalpara Tenancy Act, 1929. However, in the year 1975, the land was declared khas without assigning any reason. The petitioner, being the legal heir and having valid claims, had accordingly submitted an application for restoration of the old Patta on 19.06.2023. The same not having been acted upon, the instant writ petition has been filed.

3. I have heard Shri MU Mondal, learned counsel for the petitioner. I have also heard Shri J. Handique, learned Government Advocate, Assam and Ms. N. Bordoloi, learned Standing Counsel, Revenue Department.

4. Shri Mondal, learned counsel for the petitioner has submitted that it is not in dispute that the plot of land in question is under the continuous possession of the petitioner since the time of his great-grandfather. He has also highlighted that the conversion in the year 1975 was done without assigning any reasons and therefore, his application for restoration of Patta is liable to be considered.

5. Per contra, Shri Handique, learned State Counsel has submitted that the projection made is wholly incorrect. He has submitted that though the records would indicate that the great-grandfather of the petitioner was in possession of the land, such possession was only as “khatiyandar”. However, in the settlement operation made in the year 1975, the area was converted and recorded as Government khas land. He has submitted that such action was not put to challenge by any person and it is only after a long delay of about 50 years that the instant writ petition is filed. He submits that on the grounds of delay itself, the petition is liable to be dismissed and otherwise also, the petitioner has not been able to demonstrate a case of violation of any enforceable rights. He has also submitted that affidavit-in-opposition has been filed by the respondent no. 6 - Circle Officer, Bilasipara on 01.09.2023, which has not been rebutted by the petitioner by filing any rejoinder affidavit.

6.