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GAHC010009182015 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 967/2015 1:RAJESH BAID and 8 ORS S/O SRI DEOCHAND BAID R/O A.B.C., SIKARIA COMPLEX, GUWAHATI-
781005.
2: SMTI. PUSPA DEVI JAIN W/O LT. RAJESH KUMAR JAIN R/O ATHGAON GUWAHATI- 781001. 3: SRI SANJAY JAIN S/O SHRI NANDALAL JAIN R/O KUMARPARA BHARALUMUKH SWITCH GATE GUWAHATI- 781009.
4: SRI MANISH SETHIA S/O LOAN KRAN SETHIA R/O KUMARPARA NARAYAN NAGAR KANAKLATA PATH GUWAHATI- 781009.
5: SRI NARENDRA KUMAR BAID S/O SRI DEOCHAND BAID R/O A.B.C. SIKARIA COMPLEX GUWAHATI- 781005.
6: SRI KAMAL SUREKA S/O SHRI BISWANATH SUREKA R/O R.K. CHOUDHURY PATH KUMARPARA GUWAHATI- 781009.
7: SRI NARENDRA KR. KHEMKA S/O NAURANG RAI KHEMKA R/O GOLDEN ENCLAVE FOURTH FLOOR KANAKLATA PATH KUMARPARA GUWAHATI- 781009.
8: SRI DILIP KR. SHIPANI S/O SHRI CHAND SHIPANI R/O GOLDEN ENCALVE FIFTH FLOOR KANAKKLATA PATH KUMARPARA GUWAHATI- 781009.
9: SRI GHESWAR CHAND SHIPANI S/O SHRI SHREE CHAND SHIPANI R/O GOLDEN ENCLAVE FIFTH FLOOR KANAKKLATA PATH KUMARPARA GUWAHATI- 781009 VERSUS
1:THE STATE OF ASSAM AND 3 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, GUWAHATI DEVELOPMENT DEPARTMENT, ASSAM SECRETARIAT, DISPUR, GUWAHATI-781006.
2:THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI- 781006.
3:THE COMMISSIONER- SECRETARY TO THE GOVT OF ASSAM LEGISLATIVE DEPARTMENT DISPUR GUWAHATI- 781006.
4:THE GAUHATI METROPOLITAN DEVELOPMENT AUTHORITY BHANGAGARH GUWAHATI - 781005 REP. BY ITS CHIEF EXECUTIVE OFFICER Advocate for the Petitioner : MR.N DEKA Advocate for the Respondent : GA, ASSAMR1-3 BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN
['N DEKA', '', 'K N CHOUDHURY', 'N BHARALI', 'A K DAS', 'B CHAKRABORTY', 'GA', 'ASSAMR', '', 'SC', 'G M D AR']
ORDER
Date : 15-07-2019 Heard Mr K N Choudhury, learned Senior Counsel, assisted by Mr N Bharali, learned counsel for the petitioners. Also heard Ms M Hazarika, learned Senior Counsel, assisted by Ms K Hazel, learned counsel for the GMDA, respondent No. 4 and Ms M Bhattacharjee, learned Government Advocate, Assam for respondent Nos. 1, 2 and 3.
2. 9 petitioners have joined together and have instituted the present common proceeding under Article
226 of the Constitution of India, seeking the following reliefs:-
1) For adjudging and declaring Schedule-1 of the Guwahati Waterbodies (Preservation and Conservation) Act, 2008, to the extent of land belonging to the petitioners as unconstitutional and ultra vires.
2) To set aside and quash letter dated 17.08.2013 issued on behalf of Chief Executive Officer, GMDA, rejecting application of the petitioners for building permission on the land in question.
3. Since vires of Schedule-1of the Guwahati Waterbodies (Preservation and Conservation) Act, 2008 (for short, ‘the 2008 Act’, hereinafter) was put to challenge, the case was initially taken up by a Division Bench of this Court. On 11.03.2016, Division Bench admitted the petition for final hearing. However, on a subsequent date, i.e., on 16.06.2016, it was submitted on behalf of the petitioners that petitioners do not intend to press the relief of challenge to the vires of the 2008 Act. Accordingly, Division Bench directed listing of the case before the Single Bench as per roster.
4. Case of the petitioners is that they are joint owners of two plots of land measuring 3 kathas covered by Dag No. 771 (old)/1999 (new) of K P Patta No. 1055 and Dag No. 771 (old)/2000 (new) of K P Patta No. 1056 of Sahar Guwahati Part-II under Guwahati Mouza in the district of Kamrup (Metro).
5. It is stated that aforesaid lands were given in settlement by the Government of Assam to one Sri Pranab Bora and his wife, Smt Mamoni Bora and Sri Jagar Singh and his wife, Smt Jaswant Kaur, on payment of premium. The settlement holders, thereafter, sold their respective lands to the petitioners by registered sale deeds. Sri Pranab Bora and Smt Mamoni Bora sold their land to Sri Ramesh Kumar Damani vide registered sale deed dated 29.01.1998. On the other hand, Sri Jagar Singh and Smt Jaswant Kaur sold their land to Sri Suraj Damani vide registered sale deed also dated 29.01.1998.
6. Both Sri Ramesh Kumar Damani and Sri Suraj Damani made application before the GMDA for grant of land use certificate on 08.02.2006. In terms of such application, GMDA issued certificate dated 28.02.2006, certifying that the aforesaid two plots of land were located in Residential (High) Zone as per Master Plan and Zoning Regulation for Guwahati, which was issued vide notification dated 25.09.1986.
7. It was from Sri Ramesh Kumar Damani and Sri Suraj Damani that the petitioners purchased the above mentioned two plots of land vide registered sale deed No. 6372 dated 11.05.2007. It may be mentioned that previous land owner had erected RCC boundary wall bounding the land in question, possession of which was duly taken over by the petitioners. In due course of time, names of petitioners were mutated in the land records in place of earlier owners of the said plots of land.
8. It is stated that Government of India framed a policy for conservation and preservation of water bodies throughout the country. In this connection, a Water Land Steering Committee was constituted in Assam headed by the Chief Secretary. The said Committee in its meetings held from time to time decided to take steps for preservation of water bodies in and around Guwahati, including Solabeel comprising Borsola and Sarusola Beels. At this stage, it may be mentioned that land of the petitioners are near Sarusola Beel.
9. Government of Assam in the Revenue Department informed the Deputy Commissioner, Kamrup on 19.07.1995 that Government had cancelled settlements and allotments given by the Government in and around Borsola Beel and Sarusola Bee
