Smti Padmeswari Ghose vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2870 Gua

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GAHC010018692014




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/6207/2014

         SMTI PADMESWARI GHOSE
         W/O LT. HARI PRASAD GOHSE, @ HARI GHOSE, C/O SONTORA CHUTIA
         VILL- BALIGAON, DHAKUAKHANA CHARIALI, P.O. and P.S.
         DHAKUAKHANA DIST. LAKHIMPUR, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP.BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         DEPARTMENT OF REVENUE S AND DISARTER MANAGMENT, DISPUR,
         GUWAHATI-6.

         2:THE DEPUTY COMMISSIONER

          LAKHIMPUR AT NORTH LAKHIMPUR
          REVENUE BRANCH DIST. LAKHIMPUR
          ASSAM
          PIN - 787001.

         3:THE SUB-DIVISIONAL OFFICER CIVIL
          DHAKUAKHANA P.O. DHAKUAKHANA DIST. LAKHIMPUR
         ASSAM
          PIN - 787001.

         4:THE CIRCLE OFFFICER

          DHAKUAKHANA REVENUE CIRCLE
          P.O. DHAKUAKHANA DIST. LAKHIMPUR
          ASSAM
          PN - 787001.

         5:THE SUB-DIVISIONAL LEVEL LAND
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             ADVISORY BOARD OF DHAKUAKHANA SUB DIVISION
             REP. BY SUB -DIVISINAL OFFICER C
             DHAKUAKHANA
             P.O. DHAKUAKHANA
             DIST. LAKHIMPUR
             ASSAM PIN- 787001.

            6:M/S. HAZARIKA ENTERPRISE
             REPRESENTED BY ITS PROPRITOR PRADIP HAZARIKA
             S/O. LATE RUPESWAR HAZARIKA
             R/O. VILL. KOPOHUA GAON
             P.O. DHAKUAKHANA
             P.S. DHAKUAKHANA.

            7:DHAKUAKHANA TOWN COMMITTEE
             REPRESENTED BY ITS CHAIRMAN
             P.O. AND P.S. DHAKUAKHAN

Advocate for the Petitioner   : MR. M. HOSSAIN

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER Date : 15-11-2021

In this writ petition filed under Article 226 of the Constitution, of India, the petitioner has assailed an order dated 17.06.2014 communicated by the Government in the Revenue & Disaster Management Department to the respondent no. 2, whereby, it was intimated that the plot of land measuring 2 Lessas in respect of which a proposal for settlement in favour of the writ petitioner was forwarded, cannot be considered for settlement, thereby, rejecting the said proposal. A prayer is made for a direction to the respondent authorities to settle the said 2 Lessas of land, indicated in the impugned order dated 17.06.2014, in favour of the writ petitioner after de-reserving the same.

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2. The facts projected by the writ petitioner in the writ petition and leading to the passing of the impugned order may be stated, in brief, as follows :

2.1. The father-in-law of the petitioner, Sachindra Ghose was an Indian citizen and he was enlisted as a voter in the voters list of 1966 under the Legislative Assembly Constituency - Chatia. The marriage of the petitioner was solemnized with one Hari Prasad Ghose, son of Sachindra Ghose. In the year 1969, the family shifted to Dhakuakhana. The father-in-law of the petitioner, in the year 1969, cleared an area measuring 2 lessas [Length 33' X Breadth 9'] out of a plot of land originally covered by Dag no. 23 at Village - Mohghuli Chapari, Mouza & Circle - Dhakuakhana, District - Lakhimpur [hereinafter referred to as 'the subject-plot']. After taking possession of the same, he started a hotel business thereby, selling tea, rice, etc. It has been stated that two plots of land were curved out of original Dag no. 23 and the same are Dag no. 405 and Dag no. 406 respectively. The subject-plot is covered by Dag no. 405 which was curved out of original Dag no. 23. After the death of her father-in-law, the husband of the petitioner, Hari Prasad Ghose and the petitioner herself jointly continued to be in possession of the subject-plot during the lifetime of her husband and also continued the hotel business. Hari Prasad Ghose used to pay tax for the hotel to the Gaon Panchayat. Hari Prasad Ghose expired on 13.01.2012 leaving the petitioner and four children behind. The petitioner has claimed that she has been maintaining her family with the income being earned from the hotel business, run in the subject-plot. It is further projected that the family of the petitioner is in continuous possession of the subject-plot for more than 45 years.

2.2. An application for settlement of the subject-plot was submitted before the respondent no. 4 i.e. the Circle Officer, Dhakuakhana Revenue Circle. The Page No.# 4/13

respondent no. 4 conducted a field verification through a Lat Mandal, who submitted a report dated 28.02.2005. It was reported that a total of 1 Bigha and 12 Lessas of land was under the original Dag no. 23. Two new dag numbers i.e. Dag no. 405 and Dag no. 406 were curved out of the original Dag no. 23. An area of 2 Kathas and 4 Lessas was under Dag no. 405 and an area of 18 Lessas was under Dag no. 406. The area of 18 Lessas of land covered by Dag no. 406 was settled in favour of the respondent no. 6 after converting it to periodic patta. The area of 2 Kathas and 4 Lessas was made reserved for public garden. A plot of land measuring 2 Kathas and 4 Lessas under Dag no. 405 were in actual possession of public garden and the said area of 2 Kathas and 4 Lessas was covered by boundary walls. The subject-plot was situated outside the boundary walls of the public garden where the petitioner was running a hotel. At the same time, it was also reported in the De-reservation Form that the 2 Lessas of land under the possession of the petitioner though it fell within the land reserved for garden and it situated outside the boundary walls of the garden. It was proposed that the subject-plot could be settled in favour of the petitioner after considering its de-reservation. After receiving the report dated 28.02.2005, the respondent no. 4 forwarded the same to the respondent no. 3 i.e. the Sub-Divisional Officer [Civil], Dhakuakhana on 01.03.2005 for his necessary action for settlement of the subject-plot in favour of the petitioner after de-reserving it. It has been stated that a de-reservation proposal was also sent along with the said letter. The respondent no. 3 had, in turn, submitted the de-reservation proposal before the Sub-Divisional Level Land Advisory Committee, Dhakuakhana Sub-Division for approval. The de-reservation proposal was thereafter, approved by the Sub-Divisional Level Land Advisory Committee, Dhakuakhana Sub-Division in its meeting held on 05.03.2005 vide Page No.# 5/13

Resolution no. 37. After such approval, the respondent no. 3 initiated a de- reservation case being De-Reservation Case no. 28/2007 by issuing notices under Rule 95-A [wrongly mentioned as Rule 96-A] of the Rules framed the Assam Land and Revenue Regulation, 1866 to the necessary parties, thereby, inviting objections. Thereafter, an order dated 29.02.2008 was passed by the respondent no. 3 whereby the de-reservation case was referred to the respondent no. 2 i.e. the Deputy Commissioner, Lakhimpur and by its communication dated 04.03.2008, the respondent no. 3 forwarded the proposal to the respondent no. 2 for further necessary action in respect of de-reservation of the subject-plot and thereafter, settlement of the subject-plot in favour of the petitioner. The respondent no. 2 after consideration of the proposal, forwarded the proposal for de-reservation and settlement to the Government in the Revenue & Disaster Management Department. The Government in the Revenue & Disaster Management Department by the impugned order dated 17.06.2014 rejected the proposal for de-reservation of the subject-plot and settlement of the subject-plot in favour of the petitioner. Aggrieved thereby, the petitioner has approached this Court by this writ petition.

3. Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. P.S. Deka, learned Standing Counsel, Revenue & Disaster Management Department for the respondent no. 1; Mr. K. Gogoi, learned Additional Senior Government Advocate, State of Assam for the respondent nos. 2-5 and Mr. P.K. Kalita, learned Senior Counsel for respondent no. 6. None has appeared for the respondent no. 7.

4. Mr. Sheikh, learned counsel for the petitioner has submitted that the family of the petitioner is in continuous possession of the subject-plot since the year Page No.# 6/13

1969 and the family has been running a hotel in the subject-plot. The proposal for de-reservation and settlement of the subject-plot was duly processed by the district revenue authorities after carrying out a field verification. The de- reservation proposal was initiated after duly instituting a proceeding under Rule 95-A of the Rules framed under the Assam Land and Revenue Regulation, 1886 ['the Regulation', for short]. The respondent nos. 2-5 had re-commended for de- reservation of the subject-plot and also settlement of the subject-plot in favour of the petitioner by acknowledging long possession by the family of the petitioner over the subject-plot. He has submitted that the subject-plot is situated outside the boundary of the land reserved for the public garden, meaning thereby, the respondent authorities had acquiesced for settlement of the subject-plot. He has further submitted that out of the original Dag no. 23, 18 Lessas of land had already been settled in favour of the respondent no. 6. The petitioner being similarly situated ought to have been settled with the subject-plot as the subject-plot was curved out of the same original Dag no. 23. Submitting as above, Mr. Sheikh has contended that the impugned decision of the State Government in the Revenue & Disaster Management Department is clearly arbitrary and the same is liable to be set aside. It is the further contention of Mr. Sheikh that even after curving out of Dag no. 405 and Dag no. 406, there is still land available under original Dag no. 23 for settlement and as such, the basis on which the impugned order is passed is not tenable.

5. Mr. Deka, learned Standing Counsel, Revenue & Disaster Management Department has submitted that it has emerged from the records that the subject-plot measuring 2 Lessas falls within 2 Kathas and 4 Lessas of land reserved for the public garden. In this regard, he has referred to the de- reservation proposal, annexed at page nos. 27-28 of the case papers. The de-

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reservation form has clearly indicated that the subject-plot under the possession of the petitioner is a part of the land reserved for the public garden though the same is situated outside the boundary walls erected by the public garden authority. It is his contention that any land reserved by public garden cannot be de-reserved for any settlement in favour of any individual as the same does not subserve any public purpose and it is against the then extant Land Policy, 1989 as well as the presently prevailing Land Policy, 2019. He has submitted that after initiation of the de-reservation proposal for settlement in favour of the petitioner with regard to the subject-plot, the matter was forwarded to the Government in the Revenue & Disaster Management Department for final decision as the Government in the Revenue and Disaster Management Department is the final authority to decide about de-reservation of a plot of land reserved for public garden. As the respondent nos. 2-5 are not the final authorities to decide about the matter of de-reservation under the provisions of Assam Land and Revenue the Regulation, their recommendation is not binding.

6. Mr. Gogoi, learned Additional Senior Government Advocate has adopted the submissions of Mr. Deka.

7. Mr. Kalita, learned Senior Counsel for the respondent no. 6 has submitted that the husband of the petitioner had earlier approached this Court by way of a writ petition, W.P.(C) no. 3815/2004 seeking allotment of the same subject-plot in his favour and the said writ petition was dismissed on 09.11.2006. The petitioner has merely stepped into the shoes of her husband, after his death. The claim of the petitioner for settlement of the subject-plot in the similar manner qua the settlement of 18 Lessas of land under Dag no. 405 made in favour of the respondent no. 6, curved out of the same original Dag no. 23 is Page No.# 8/13

not maintainable. The area of 18 Lessas was settled in favour of the respondent no. 6 way back in the year 2002 by following due procedure and the settlement was not in favour of any individual. The petitioner earlier tried to encroach upon a part of the said 18 Lessas of land for which the respondent no. 6 instituted a title suit, Title Suit no. 14/2014. In the said proceedings, the petitioner was arraigned as defendant no. 2 and the same was decreed in favour of the plaintiff i.e. the respondent no. 6 herein by a judgment and decree dated 26.08.2016. During the course of the proceedings of Title Suit no. 14/2014, the defendant no. 2 i.e. the petitioner herein acknowledged the fact by filing the written statement, that she did not have any right over the plot of land covered by Dag no. 406 and relinquished her claim in respect of Dag no. 406. The petitioner rented out a room in the subject-plot under Dag no. 405 to another person who was the defendant no. 1 in the title suit. The subject-plot under Dag no. 405 is Government land as per the revenue records and it has been reserved for public garden, he has submitted. The necessary evidence about the total area under original Dag no. 23 was led in the title suit, which was decided by the judgment and order dated 26.08.2016 and he has referred to the same to clarify about non-availability of any land under original Dag no. 23.

8. I have considered the submissions of the learned counsel for the parties and also perused the materials brought on record by the parties through their respective pleadings.

9. The subject-matter of this writ petition, as mentioned above, is a plot of land measuring 2 Lessas covered by Dag no. 405 located at Village - Mohghuli Chapari, Mouza & Revenue Circle - Dhakuakhana, District - Lakhimpur [the subject-plot]. It has emerged from the affidavit-in-opposition of the respondent Page No.# 9/13

no. 3 that an area measuring 2 Katha and 4 Lessas under Dag no. 405 and another area measuring 18 Lessas under Dag no. 406 were curved out of a plot of land measuring 1 Bigha and 12 Lessas under Dag no. 23 in the year 1993. As per the said affidavit-in-opposition, pursuant to the Government order, the plot of land measuring 18 Lessas under Dag no. 406 was converted into periodic patta and settled in favour of the respondent no. 6 and the concerned land records were accordingly corrected. In so far as Dag no. 405 is concerned, the entire area of 2 Kathas and 4 Lessas under the said Dag number has been reserved in the name of public garden. Out of the said 2 Kathas and 4 Lessas, an area measuring 2 Kathas and 2 Lessas has been covered by boundary walls, erected by the public garden authority. The subject-plot, measuring 2 Lessas, which the petitioner has been occupying, is also reserved for the public garden but the same is located outside the said boundary walls and therein, a temporary house has been constructed by the petitioner to run the hotel business.

10. It has further emerged that the petitioner had submitted an application for de-reservation of the subject-plot and settlement of the subject-plot in her favour. The said application was submitted before the respondent no. 3. A field verification was carried out by the respondent no. 3 through the Lat Mandal who submitted a report dated 28.02.2005. As per the said report, the dimension of the subject-plot is Length 32' X Breadth 9' [= 288 square feet] i.e. 2 Lessas where the petitioner by constructing a temporary house, has been running a hotel. The said report also indicated that the subject-plot had been reserved for public garden and the same could be settled only in favour of the petitioner only after its de-reservation for which the proposal was submitted. The report of the respondent no. 4, the respondent no. 3 as well as the respondent no. 2 had Page No.# 10/13

acknowledged the fact that the subject-plot fell within 2 Kathas and 4 Lessas of land reserved for public garden under Dag no. 405.

11. The picture about the total area of land available under original Dag no. 23 becomes clearer from the findings recorded by the learned Munsiff, Dhakuakhana, Lakhimpur in the Judgment and Order dated 26.08.2016 passed in Title Suit no. 14/2014, on the basis of the oral and documentary evidence led therein where both the present petitioner and the present respondent no. 6 led their evidence and Chitha copy of Dag no. 23 was exhibited through the concerned revenue official. The learned Court observed therein that from Dag no. 23, a plot of land measuring 2 Kathas and 10 Lessas was allotted to Dhakuakhana Bus stand and Taxi Bus stand and a total of 3 Kathas and 2 Lessas were left in Dag no. 23 after the said allotment. The Dhakuakhana Taxi Bus Stand had accordingly taken possession of the said land measuring 2 Kathas and 10 Lessas. Out of the remaining 3 Kathas and 2 Lessas of land left in Dag no. 23, an area of land measuring 2 Kathas and 4 Lessas was allotted to Dhakuakhana Public Park, also known as Gandhi Maidan, and a new Dag no. 405 was created. The Dhakuakhana Public Park also took possession of the said area of land. The remaining 18 Lessas of land was allotted to the respondent no. 6 after creating a new Dag no. 406. The learned Court had held that there was no vacant land for allotment in Dag no. 405 after such allotments and the area of land measuring 2 Lessas the defendants therein which included the present petitioner was occupying, was mutated in the name of Dhakuakhana Public Park. Thus, it is amply clear that the entire area of land of 2 Kathas and 4 Lessas contained in Dag no. 405 is reserved for Dhakuakhana Public Park.

12. Rule 95A of the Rules framed under the Regulation, 1886 has provided Page No.# 11/13

that if at any time the Deputy Commissioner is of opinion that a village grazing ground constituted under the Settlement Rules is not needed for the purpose for which it was allotted and is required to be de-reserved, the procedure laid down therein is required to be followed by drawing up a de-reservation proceeding and thereafter, the proceeding has to be forwarded together with his recommendation to the Government for final orders. It is the Government who has to pass an order either accepting, rejecting or modifying the recommendation of the Deputy Commissioner. In the case in hand, the respondent no. 2 forwarded the proposal for settlement of the subject-plot to the Government by his communication dated 12.02.2014. In his communication, it was admitted that the subject-plot is a part of the plot of land reserved for public park. It could be noticed that as no claims and objections during the course of de-reservation proceeding drawn up vide De-reservation Case no. 28/2007, was received and the petitioner was found in possession of the subject-plot, the Deputy Commissioner had recommended for settlement of the subject-plot in favour of the petitioner after its de-reservation. There is no reason recorded in the recommendation and the de-reservation proposal as to why the said 2 Lessas of land is not required for the Dhakuakhana Public Park for which it was allotted. The Government in the Revenue & Disaster Management Department after receipt of the proposal from the Deputy Commissioner, considered the same and it has observed that the subject-plot measuring 2 Lessas is reserved for a public park and settlement of such land which is already reserved for a public park cannot be considered for individual settlement. Observing so, the twin proposal for de-reservation of the subject- plot and settlement of the subject-plot in favour of the petitioner has been rejected.

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13. The Government from time to time has made land policies including the Land Policy, 1989, for the purpose of allotment/settlement of land at the disposal of the Government for ordinary cultivation, allied agriculture purposes, special cultivations, homestead purpose, non-agriculture purposes like industries, public institutions, hospitals, etc. in rural as well as in urban areas. It is settled that mere possession by way of encroachment shall not be a ground for allotment/settlement of public land. It has emerged indubitably that the subject-plot of dimensions, Length 33' X Breadth 9' [= 288 square feet] under Dag no. 405 is Government land wherein the petitioner is running the hotel business. The learned counsel for the petitioner has not been able to show any provision of the Land Policy which has envisaged for any settlement of such plot of land, reserved for public garden, in favour of a person like the petitioner, for running a hotel business therein. The Land Policy, 1989 has provided for allotment/settlement of a land for various categories of persons. Clause 6.1 of the Land Policy, 1989 contains the provisions of village grazing reserve [VGR], professional grazing reserve [PGR] and other reserved land. As per Clause 6.1 thereof, the Deputy Commissioner has to make necessary endeavour to preserve the existing VGRs and PGRs for use by the members of public for the purpose for which those were constituted and encroachment on VGRs and PGRs, if any, shall be removed. The Land Policy, 1989 has further laid down that with effect from coming into force of the said policy, the land reserved for use by the members of the public shall not be further decreased by way of de- reservation and allotment, etc. except for public purposes under special circumstances. The Land Policy, 1989 has been replaced by the Land Policy, 2019. There is no provision in the Land Policy, 2019 either whereby a plot of land reserved for use of the public park, can be de-reserved and thereafter, be Page No.# 13/13

settled in favour of any individual for running a hotel business.

14. Thus, in the light of the above discussion, the decision taken by the Government in the Revenue & Disaster Management Department by the impugned order dated 17.06.2014 is found in conformity with the extant Land Policy prevailing at that time and in exercise of the powers vested on it under Rule 95A of the Rules framed under Assam Land and Revenue Regulation, 1886, which cannot be termed as arbitrary. In such view of the matter and in absence of any right found vested in the petitioner, the two-fold prayers of the petitioner, firstly, for setting aside of the impugned order dated 17.06.2014; and secondly, direction for de-reservation of the subject-plot and settlement of the subject- plot in favour of the petitioner thereafter are found devoid of merits and the writ petition is liable to be dismissed. It is accordingly dismissed. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant