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GAHC010132442020 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4563/2020 JABED ALI AND 16 ORS.
S/O HASEN ALI RESIDENT OF VILLAGE DHALPUR, 2: ABU SHAMA S/O KUDDUS ALI RESIDENT OF VILLAGE KIRAKATA PS SIPAJHAR DIST DARRANG ASSAM
3: AMZAD S/O MAHAR ALI VILLAGE DHALPUR PS MANGALDAI
4: MUSLIM S/O ROHIZ UDDIN VILLAGE NO. 1 OFURA PS MANGALDAI DIST DARRANG ASSAM
5: AYNAL HOQUE S/O ISMAIL SHIEKH VILLAGE BULLKHATI PS MANGALDAI DIST DARRANG ASSAM
6: MAHURUDDIN AHMED S/O DILBAR ALI VILLAGE BHETI BAZAR PS SIPAJHAR DIST DARRANG ASSAM
7: MAINUDDIN ALI S/O JULHASH ALI VILLAGE KIRAKATA PS SIPAJHAR DIST DARRANG ASSAM
8: AMANAT ALI S/O ISMAIL SHEIKH RESIDENT OF VILLAGE BULLKHATI PS MANGALDAI DIST DARRANG ASSAM
9: MD. SALAM ALI S/O KISMAT ALI VILLAGE KIRAKATA PS SIPAJHAR DIST DARRANG ASSAM
10: BABU @ BABUL ALI S/O HASEN ALI VILLAGE NO/. 1 OFURA PS MANGALDAI DIST DARRANG ASSAM
11: AYNAL HOQUE S/O SOLEMAN ALI RESIDENT OF VILLAGE KACHUMARI NONKE PS KACHUMARA DIST BARPETA ASSAM
12: FAZAR S/O SOYED ALI RESIDENT VILLAGE BAKRITARY
13: AYUB ALI @ AIBALI S/O KADDUS ALI VILLAGE KIRAKATA PS MANGALDOI DIST DARRANG ASSAM
14: OSMAN GANI @ GANI ALI S/O SUBAHAN ALI VILLAGE DHALPUR PS MANGALDAI DIST DARRANG ASSAM
15: HUSSEN ALI S/O MD. ARFAN ALI VILLAGE NO. 1 OFURA PS MANGALDAI DIST DARRANG ASSAM
16: KAYUM ALI S/O ATA ALI VILLAGE NO. 1 OFURA PS MANGALDAI DIST DARRANG ASSAM
17: BADSHA ALI S/O IDRIS ALI RESIDENT OF VILLAGE BORLAKHETI PS MANGALDAI DIST DARRANG ASSAM ALL ARE PRESENTLY RESIDING AT VILLAGE NAPARA PAM PO LAOPARA PS MUKALMUA MOUZA PUB BARKHETRI DIST NALBARI ASSA VERSUS THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY, REVENUE(SETTLEMENT) DEPARTMENT TO THE GOVT. OF ASSAM DISPUR, GUWAHATI 6
2:THE DIRECTOR OF LAND RECORD GOVT. OF ASSAM REHABARI GUWAHATI 8
3:THE DIRECTOR OF LAND AND REVENUE DEPARTMENT GOVT. OF ASSAM JURIPAR GUWAHATI 22
4:THE DEPUTY COMMISSIONER NALBARI NALBARI ASSAM
5:THE CIRCLE OFFICER REVENUE CIRCLE BARKHETRI DIST NALBARI ASSA Advocate for the Petitioner : MR. A PARAMANIK Advocate for the Respondent : GA, ASSAM WP(C)/4865/2020 JABED ALI AND 16 ORS S/O- HASEN ALI R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
2: ABU SHAMA S/O- KUDDUS ALI R/O- VILL- KIRAKATA P.S. SIPAJHAR DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
3: AMZAD S/O- MAHAR ALI R/O- VILL- DHALPUR P.S. MANGALDOI PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
4: MUSLIM S/O- ROHIZ UDDIN R/O- VILL- NO 1 OFURA P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
5: AYNAL HOQUE S/O- ISMAIL SHEIKH R/O- VILL- BULLKHATI P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
6: MAHURUDDIN AHMED S/O- DILBAR ALI R/O- BHETI BAZAR P.S. SIPAJHAR DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
7: MAINUDDIN ALI S/O- JULHASH ALI R/O- VILL- KIRAKATA P.S. SIPAJHAR DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
8: AMANAT ALI S/O- ISMAIL SHEIKH R/O- VILL- BULLKHATI P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
9: MD. SALAM ALI S/O- KISMAT ALI R/O- VILL- KIRAKATA P.S. SIPAJHAR DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
10: BABU @ BABUL ALI S/O- HASEN ALI R/O- VILL- NO 1 OFURA P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
11: AYNAL HOQUE S/O- SOLEMAN ALI R/O- VILL- KACHUMARI NONKE P.S. KACHUMARA DIST.- BARPETA ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
12: FAZAR S/O- SOYED ALI R/O- VILL- BAKRITARY PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
13: AYUB ALI @ AIBALI S/O- KADDUS ALI R/O- VILL- KIRAKATA P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
14: OSMAN GANI @ GANI ALI S/O- SUBAHAN ALI R/O- VILL- DHALPUR P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
15: HUSSEN ALI S/O- MD. ARFAN ALI R/O- VILL- NO 1 OFURA P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
16: KAYUM ALI S/O- ATA ALI R/O- VILL- NO 1 OFURA P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM
17: BADSHA ALI S/O- IDRIS ALI R/O- VILL- BORLAKHETI P.S. MANGALDOI DIST.- DARRANG ASSAM PRESENTLY R/O- VILL- NAPARA PAM P.O. LAOPARA P.S. MUKALMUA MOUZA- PUB BARKHETRI DIST.- NALBARI ASSAM VERSUS THE STATE OF ASSAM AND 3 ORS REP. BY THE COMM. AND SECY.
REVENUE (SETTLEMENT) DEPTT. TO THE GOVT. OF ASSAM DISPUR GHY-06
2:THE DIRECTOR OF LAND RECORD GOVT. OF ASSAM REHABARI GHY-08
3:THE DY. COMMISSIONER NALBARI DIST.- NALBARI ASSAM
4:THE CIRCLE OFFICER REVENUE CIRCLE BARKHETRI DIST.- NALBARI ASSAM ------------
Advocate for : MR. A PARAMANIK Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 3 ORS BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
['A PARAMANIK', 'GA', 'ASSAM', '', 'SC', 'REVENUE']
JUDGMENT
Date : 19-03-2021 Heard Shri A Ali, learned counsel for the petitioners. Also heard Shri BJ Talukdar, learned Standing Counsel, Revenue Department as well as Shri G Pegu, learned State Counsel, Assam.
2. The case projected in the writ petition is that the petitioners are flood affected and had purchased certain plots of land at Village-Napara under Mouza-Pub-Barkhetri, Police Station- Mukalmua in the district of Nalbari, Assam covered by Dag No.1 from the holder and occupier by executing some Kacha Sale Deed and since then, they are in occupation over the said plots of land. The petitioners also claim to have paid land revenue which was collected by the Mouzadar of the concerned Mouza. However, vide the impugned orders dated 21.01.2020 and 11.11.2020, the petitioners were directed to vacate their respective lands as the same was Government land.
3. Shri Ali, learned counsel for the petitioners fairly submits that though the land in question is Government land, they are flood affected persons and are in possession of the same since long and has also been paying the land revenue. He accordingly submits that the eviction drive is not reasonable and rather, steps should be taken for settlement of the land in the names of the petitioners. By drawing the attention of this Court to the additional-affidavit filed on 25.11.2020 in WP(C) No.4563/2020, it is submitted that the petitioners have been discriminated inasmuch as similarly situated persons have not been served with such notice.
4. On the other hand, Shri Talukdar, learned Standing Counsel submits that when the land in question is Government land, the petitioners cannot claim as a matter of right for settlement. Further, the petitioners are only encroachers over Government land and the impugned action is absolutely in the larger interest of public. He further submits that the land revenue said to have been paid are not ‘Khajna’ but ‘Touzi’ and therefore, no right would vest upon the petitioners by such payment. As regards the point taken up in the additional- affidavit, the learned counsel for the Revenue Department submits that Article 14 of the Constitution of India being a positive right, no case for discrimination can be made out by bringing on record other instances where action has not been taken.
5. Shri Pegu, learned State Counsel appearing on behalf of the respondent nos. 3 and 4 has endorsed the submission of Shri Talukdar, learned Standing Counsel and submits that the writ petition is neither tenable on facts nor in law.
6. Having given anxious considerations on the respective cases projected by the parties, this Court is of the view that admittedly the land in question being a Government land, the impugned orders dated 21.01.2020 and 11.11.2020 for eviction cannot be faulted with.
Payment of revenue as contended by the petitioners stands belied by a cursory glance of the receipts which have been annexed to the writ petitions which clearly indicate that the payment is under the head of ‘Touzi’, which is nothing but a fine for occupying the Government land and this position has been well settled by a Division Bench of this Court in the case of State of Assam Vs. Radha Kanoo, reported in (1996) 8 SCC 692. The relevant paragraph, being paragraph 5, is quoted hereinbelow:
“5. It is true, as pointed out by Shri Goswami that mauzadars have been given right to collect touzi of miscellaneous land revenue in the appropriate cash form prescribed in the instructions and that on collection the mauzadar is enjoined to deposit the collection so made in the manner prescribed. The question is: whether the persons who enter into possession otherwise than in accordance with Rule 16 would be recognised to be a person to have duly entered into possession of the government wasteland and thus entitled to be recognised in touzi possession of the land, even though they may have paid revenue to mauzadars? The mauzadar as an agent of the government cannot clothe himself with any higher rig
