Gauhati High Court
PIL/69/2020 on 3 February, 2021
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GAHC010164062020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PIL NO.69 OF 2020
1. The Janajati Belt and Block Bhummi Suraksha Samiti,
represented by petitioner No.2, Bihpuria Constituency,
Banderdewa, PO: Pathalipahar, PS: Bihpuria, District: Lakhimpur,
Assam, PIN - 784163.
2. Shri Diploman Deori,
Son of Late Paharsing Deori,
Village & PO: Bordeori, PS: Narayanpur,
District: Lakhimpur, Assam, PIN - 784164.
3. Shri Mohan Basumatary,
C/o Late Bhadeswar Basumatari,
Village: Banderdewa Kachari Gaon,
PO: Pathali Pahar, PS: Bihpuria,
District: Lakhimpur, Assam, PIN - 784163.
4. Shri Hemanta Pegu,
C/o Shri Ganesh Pegu,
Village: Banderdewa Kumolia Chapori, PO: Banderdewa,
District: Lakhimpur, Assam, PIN - 784163.
........Petitioners
-Versus-
1. The State of Assam to be represented by the Chief Secretary
to the Government of Assam, Dispur, Guwahati, Assam, PIN -
781006.
2. Commissioner & Secretary to the Government of Assam,
Revenue & Disaster Department, Dispur, Assam, PIN - 781006.
3. The Director, Land & Revenue Management Department,
Government of Assam, Guwahati, Assam, PIN - 781006.
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4. The Deputy Commissioner, Lakhimpur,
District: North Lakhimpur, Assam, PIN - 787032.
5. The Circle Officer, Narayanpur Revenue Circle,
District: Lakhimpur, Assam, PIN - 784164.
6. Shri Ranjan Kumar Singh,
Son of Late Suchit Singh,
Resident of Banderdewa, PO: Pathalipahar, PS: Bihpuria,
District: North Lakhimpur, Assam, PIN - 784163.
7. Smti. Nirmala Singh,
Wife of Shri Ranjan Kumar Singh,
Resident of Banderdewa, PO: Pathalipahar, PS: Bihpuria,
District: North Lakhimpur, Assam, PIN - 784163.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
For the Petitioners : Mr. S.K. Deori, Advocate.
Ms. Somila, Advocate.
For the Respondent Nos.2 to 5 : Mr. R. Borpujari, Standing Counsel,
Revenue & Disaster Management Department.
For the Respondent Nos.6 & 7 : Mr. B.D. Goswami, Senior Advocate.
Date of hearing : 3rd February, 2021.
Date of Judgment & Order : 3rd February, 2021.
JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ)
Heard Mr. S.K. Deori, learned counsel for the petitioners. Also heard Mr. R.
Borpujari, learned standing counsel, Revenue & Disaster Management Department,
appearing for the respondent Nos.2 to 5 and Mr. B.D. Goswami, learned senior counsel,
appearing for the respondent Nos.6 & 7.
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2. Under the Assam Land and Revenue Regulation, 1886 (from hereinafter referred
to as the "Regulation"), certain special rights and privileges have been provided to certain
backward classes (in Chapter X, which is titled as "Protection of Backward Classes").
Regulation 160 of the Regulation reads as under:-
"160. Protection of certain classes.-- (1) Notwithstanding anything hereinbefore
contained, the State Government may adopt such measures as it deems fit for the
protection of those classes who on account of their primitive condition and lack of
education or material advantages are incapable of looking after their welfare in so far
as such welfare depends upon their having sufficient land for their maintenance.
(2) The State Government may, by notification in the Official Gazette,
specify the classes of people whom it considers entitled to protection by such
measures as aforesaid."
3. Under Regulation 161 of the Regulation, one of the protected measures which the
Government can do, is to declare an area as a compact area, which is inhabited by a
particular class or classes of people and to that effect a notification shall be made by
Government under Sub-regulation (2) of Regulation 160. Regulation 161 reads as under:-
"161. Constitution of compact areas.-- The protective measures may include the
constitution of compact areas, in regions predominantly peopled by the classes of
people notified under the provisions of sub-section (2) of Section 160, into belts or
blocks. The boundaries of the areas so constituted shall as far as possible coincide
with mauza boundaries or be otherwise easily distinguishable."
4. Chapter X of the Regulation, which is for protection of backward classes, can be
extended by a notification by the State Government to other areas as well. Regulation 162
reads as under:-
"162. Extension of Chapter X to such areas. -- (1) The State Government may,
by notification in the Official Gazette, direct that the provisions of this Chapter shall
apply to the areas, or any of the areas, constituted into belts or blocks under the
provisions of Section 161. On such application, the disposal of land by lease for
ordinary cultivation, the nature and extent for rights conveyed by annual or periodic
leases, the termination or forfeiture of such rights, the ejectment of persons in
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occupation who have no valid right in the land, the management or letting out in
farm of land in certain circumstances by the Deputy Commissioner, and other allied or
connected matters shall so far as possible, be governed by the provisions of this
chapter and the rules made thereunder.
(2) Notwithstanding anything to the contrary in any laws, usage, contract
or agreement, no person shall acquire or posses by transfer, exchange, lease,
agreement or settlement any land in any area or areas constituted into belts or blocks
in contravention of the provisions of Sub-section (1):
Provided that nothing contained in this chapter or in the rules made
thereunder, shall effect any transfer by way of a mortgage in favour of any
nationalised bank, a Co-operative Society registered under the Assam Co-
operative Society Act, 1949 (Assam Act I of 1950), or such other financing
institution as may be approved by the State Government).
(3) From and after the commencement of the Assam Land Revenue and
Regulation (Amendment) Act, 1964, no document evidencing any transaction for
acquisition or possession of any land by way of transfer, exchange, lease agreement
or settlement shall be registered under the Indian Registration Act, 1908, if it appears
to the registering authority that the transaction has been effected in contravention of
the provisions of sub-section (2).
(4) The State Government may in the like manner, direct that provisions of
this chapter shall cease to apply to any area or areas of provisions of any area, or
areas, to which they have been applied under the provisions of sub-section (1).
(5) The application of the provisions of this chapter to any area as
aforesaid will not affect--
(a) Land settled for special cultivation or purposes ancillary to special
cultivation (including grants made for tea cultivation).
(b) Lakheraj, Nishkeraj or special estate settled with non-cultivators for
their maintenance, which land or estate and the rights and interests
therein shall continue to be governed by the provisions for the
forgoing chapters of the Regulation and the rules made thereunder."
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5. Under Sub-regulation (2) of Regulation 162, a person, who is outside the compact
area and not one of the backward classes for whose protection measures have been taken
under Regulations 160 and 161, can occupy a land in compact area by any means including
by a sale deed, lease agreement, contract or any other lease. In fact, Regulation 165
provides that such a person, who has occupied a land in a protected area, is liable to be
evicted by the Deputy Commissioner under whose jurisdiction that area false. Regulation
165 reads as under:-
"165 Ejectment and eviction.-- (1) In the case of unsettled land any person, who
without authority has encroached upon or occupied it shall be liable to ejectment
forthwith.
(2) In the case of annually settled land, persons other that settlement-
holders, members of their families and hired servants, if found in occupation thereof,
shall be liable to ejectment forthwith. The settlement with the settlement-holder
shall, unless terminated earlier for infringement of the conditions of the lease, or for
any action contrary to or in consistent with the rights conferred on him by the lease,
automatically terminate at the end of the period covered by the lease.
(3) (a) In the case of periodically settled land, persons who have entered
into occupation without valid authority from the land-holder, or whose entry or
occupation is or has come about in a manner, inconsistent with the provisions of this
chapter, shall be liable to eviction.
(b) Such eviction shall be preceded by service of notice requiring the
occupants to vacate the land and to remove all buildings and other
constructions erected and crops raised, within a period not
exceeding one month from the date of receipt of the notice.
(c) The Deputy Commissioner may after the persons have vacated or
have been evicted from the land, take the land under his own
management, or may let in farm, for such period as he thinks fit,
but shall give the land-holder a reasonable opportunity of
undertaking in writing that he will do everything in his power to
prevent unauthorised occupation by other persons in future, and of
agreeing in writing that on his failure to do so, he will forfeit his
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rights and status of a land-holder in respect of the land. If satisfied
with an undertaking and agreement as aforesaid, the Deputy
Commissioner shall accept them and they shall be deemed to
govern the land-holder's future-rights and status in respect of the
land, and the land shall then be restored to the land-holder. If the
land-holder subsequently contravenes the under taking as
aforesaid, or any of the provisions of Section 9, he shall be liable to
forfeiture of his rights and status in respect of the land, which will
then be available for settlement afresh subject to any lawful,
encumbrances subsisting upon it."
6. In view of the above provision of law, a writ petition was filed by the petitioners
before this Court bringing notice of this Court that certain persons are in occupation of a
land in protected area, although they are not members of backward classes or such persons
for whose benefit the notification has been made. Subsequently, the said writ petition was
converted by orders of this Court into PIL and is referred to the PIL Bench. The admitted
case of the private respondents, who are allegedly in wrongful occupation of the land, is that
their forefathers came to Assam in 1946-47 and had purchased this land, and the land on
which there is occupation is outside the protected belt.
7. In order to ascertain this fact, this Court vide order dated 22.05.2020, had passed
the following orders:-
"Heard Mr. S.K. Deuri, learned counsel for the petitioner. Also heard Mr. R.
Borpujari, learned counsel for the Revenue department as well as Mr. J.C. Gogoi,
learned counsel for the respondents No.6 and 7.
By this writ petition, the writ petitioner Janajati Belt and Block Bhummi
Suraksha Samiti and others has assailed the construction being carried out by the
respondents No.6 and 7 over their land on the ground that the land of the
respondents No.6 and 7 is located within the declared tribal belt area. The writ
petitioner relies upon Annexure-12 page-157 report of the Narayanpur Revenue Circle
Officer.
The relevant part of the report of the Circle Officer is extracted as under:-
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'With reference to the above cited subject under RTI Act 2005, as per the
report of Lat Mandal and SK, the following information has been furnished:-
1. Under the Narayanpur Revenue Circle, Mouza- N. Kherajkhat at Village-
Banderdewa, the total scheduled land under the Tribal Belts is 1047 Bigha
2 Katha 4 Lecha.
A) The Name and Dag No. of Land of Non-Tribal people in the above
name & village:-
1) Shri Narendra Chandra Barman, S/o Sashichandra Barman, Dag
No.177 (K. Patta). 2) Smti Phulmati Devi, W/o Sambhurai, Dag
No.178 (K. Patta). 3) Shri Sambhu Gowala, S/o Bilasarai, Dag No.179
(K.Patta). 4) Shri Rajesh Kumar Himatsingka, S/o Santosh Kumar,
Dag No.180-181. 5) Smti. Nirmala Singh, W/o Ranjan Kumar, Dag
No.183..........'
A reading of the said report of the Circle Officer makes it discernible that
1047 bighas 2 kathas 4 lechas of land of Village-Banderdewa Mouza-N. Kherajkhat
Narayanpur Revenue Circle is under the tribal belt.
From the said statement it can be inferred that if there is any further land
in the village-Banderdewa beyond the 1047 bighas 2 kathas 4, lechas the same
cannot be tribal belt land. The report provides the name and dag number of the land
of non tribal people in the village-Banderdewa where the name of the respondent
No.7 is included.
But from the report it is unclear whether the dag No.183 under occupation
of the respondent No.7 is within the 1047 bighas 2 kathas 4 lechas of tribal belt land
of village-Banderdewa or it is located outside 1047 bighas 2 kathas 4 lechas of tribal
belt land of village-Banderdewa.
The core issue involved in this petition is whether the land of the
respondents No.6 and 7 is within the tribal belt.
The aforesaid information would be of vital importance for an adjudication.
The Circle Officer of Narayanpur Revenue Circle is directed to cause a
survey of the land of the respondents No. 6 and 7 and submit a report whether the
land under occupation of the respondents No.6 and 7 is located within 1047 bighas 2
kathas 4 lechas of tribal belt land of Bandardewa or it is located outside the same.
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The report be submitted within a period of 4 weeks.
The respondents No.6 and 7 shall make a declaration before the Circle
Officer, Narayanpur Revenue Circle as regards the dag numbers of the various land
under their present occupation.
The declaration be made within a period of 7 days from today by the
respondents No.6 and 7 by visiting the office of the circle officer. If such declaration is
not made within a period of 7 days and the report of the circle officer has not
included in any such dag number over which the respondent No.6 and 7 may claim
their occupation will be construed that such dag numbers do fall within the tribal belt.
The report shall include of such dag numbers that the respondents No.6
and 7 may declared before him.
List this matter on 23.06.2020. Interim order passed earlier shall continue
till then.
A copy of the order be provided to Mr. R. Borpujari, learned counsel."
8. Subsequent to this, the concerned Circle Officer of Narayanpur Revenue Circle,
District- Lakhimpur, Assam had inspected the area and filed his report along with an
affidavit. The affidavit and the report of the Circle Officer of Narayanpur Revenue Circle
dated 10.06.2020 is on record. Broadly, it has been stated by the Circle Officer after
inspection is that the total land area of Village -Banderdewa, Mouza- Na-Kherajkhat under
Narayanpur Revenue Circle is 1347 Bighas 2 Kathas 13 Lechas, out of which different pieces
of land measuring from 1 Bigha to 70 Bighas and a total of 42 Bighas 12 Lechas has been
mutated in the name of the private respondent Nos.6 & 7, namely, Shri Ranjan Kumar Singh
and Smti. Nirmala Singh, respectively, for Village- Banderdewa, Mouza- Na-Kherajkhat under
Narayanpur Revenue Circle. Therefore, the admitted position is that the entire village, i.e.
Banderdewa, is a protected area and is protected under the Regulation, referred above, and
part of it is in occupation of respondent Nos.6 & 7, who are not the declared backward
classes and, therefore, their occupation on the said land, by whatever means it is claimed, is
on the face of it illegal and in violation of the land Regulation.
(emphasis provided)
9. Since now before us, there is already a report of the Circle Officer, which clearly
states that 48 Bighas odd land is a protected area is in occupation of respondent Nos.6 & 7,
they need to be removed in terms of Regulation 165, referred above. We, hence, allow the
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public interest litigation and direct the Deputy Commissioner, Lakhimpur to take all possible
measures under the law, including the one given to him under Regulations 165 of the
Regulation for eviction of the private respondents, as well as any other similarly situated
persons, who are in occupation of the land in violation of the 1886 Regulation. We, however,
make it very clear that before undertaking this exercise of eviction, the Deputy
Commissioner, Lakhimpur shall give proper notice to the parties, as this is also a requirement
of law, in any case under Regulation 165 of the Regulation.
10. The Registrar (Judicial) of this Court is hereby directed to communicate this order
to the concerned Deputy Commissioner for onward compliance.
JUDGE CHIEF JUSTICE
Comparing Assistant
