Point of Law: Encroachment of Land - Writ not maintainable as Disputed question of facts - To avail alternate available remedy.

ORDER :

1. The two instant writ appeals are being taken up together for consideration; being similar in nature and arising out of a common judgment and order dated 10th September, 2012, passed by a learned Single Judge of the erstwhile jurisdictional High Court (i.e. the Gauhati High Court). Another writ appeal, being WA No. 6 of 2013, which had arisen from this same judgment and order i.e. 10th September, 2012, had been segregated earlier and taken up for consideration separately, by this Bench and disposed of by a judgment and order dated 01st April, 2021, since, on examination, it was discovered that the proceedings therein were neither wholly identical nor similar in nature with the present two writ appeals, i.e. WA No. 35 of 2012 and WA No. 36 of 2012.

2. Before proceeding to discuss the merits of the two appeals, it is pertinent to note that in the batch of three writ petitions, which were disposed of by a learned Single Judge by a common judgment and order dated 10th September, 2012; WP (C) No. 353 (SH) of 2009 was allowed and WP (C) No. 250 (SH) of 2009 and WP (C) No. 251 (SH) of 2009 were dismissed. The appeals arising from the two writ petitions which were dismissed are now being taken up for consideration by this Court.

3. In Writ Appeal No. 35 of 2012, arising out of WP (C) No. 250 (SH) of 2009, the appellant, as Nokma of Bangonggiri Akhing, had instituted the said writ petition for restoration of the land allegedly encroached by the State respondents based on the report submitted by the Mouzadar of the Garo Hills Autonomous District Council coupled with a request made by the Executive Member, i/c Land Revenue, GHADC, dated 25.11.2008., in this regard. This writ petition, by the impugned common judgment, came to be dismissed by the learned Single Judge on the ground that the matter involved disputed questions of fact.

4. Similarly, the appellant in Writ Appeal No. 36 of 2012, arising out of WP (C) No. 251 (SH) of 2009, had instituted the writ petition as Nokma of Rongrenggiri Akhing, being aggrieved by the alleged encroachment by the State respondents and had also based his claim on the report submitted by the Mouzadar of the Garo Hills Autonomous District Council and also on the request by the Executive Member, i/c Land Revenue, GHADC, report dated 23rd September, 2008. This writ petition along with WP (C) No. 250 (SH) of 2009 was also dismissed as being not maintainable for non-exhaustion of alternative civil law remedy.

5. Being aggrieved by the directions passed by the learned Single Judge to entertain the two writ petitions, the writ petitioners have preferred the two instant writ appeals.

6. We have heard learned counsel for the parties.

7. Mr. K. Paul, learned senior counsel assisted by Mr. S. Thapa, learned counsel for the appellants in both the appeals submits that in WA No. 35 of 2012, the predecessors-in-interest of the appellants herein are the registered Nokmas of Bangonggiri Akhing IV-56 (1). He submits that the boundaries of Bangonggiri Akhing were settled on 13th March, 1930, by the then Deputy Commissioner of Garo Hills and that this record was maintained with the Garo Hills Autonomous District Council. Learned senior counsel submits that vide representation dated 04th June, 2004, addressed to the Deputy Commissioner, East Garo Hills, the appellant had requested for verification of the map maintained by the GHADC as to their Akhing land, alleging that a portion had been encroached upon by the Forest Department and prayed therein that orders be passed directing the Forest Department to vacate the portion of encroached land. Learned senior counsel submits that there being no action taken on the representation, the appellant filed an application on 09th August, 2007 before the Executive Member, i/c Land and Revenue, GHADC, praying for an enquiry and survey by the GHADC. Vide order dated 14th April, 2008, a Mouzadar was deputed to survey the land along with the State Forest Department officials and though the