Gauhati High Court
Nazara Ahmed vs The State Of Assam And 5 Ors. E on 22 November, 2021
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GAHC010051032021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/311/2021
NAZARA AHMED
W/O- LATE AHTASAMUDDIN AHMED, R/O- HOUSE NO. 33, S.C. BYELANE,
ALOOGUDAM, ATHGAON, GUWAHATI-781001, P.S. BHARALUMUKH, DIST.-
KAMRUP(M), ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS. E
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
MUNICIPAL ADMINISTRATION DEPARTMENT, DISPUR, GUWAHATI-06.
2:THE SECRETARY TO THE GOVT. OF ASSAM
REVENUE DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE SECRETARY TO THE GOVT. OF ASSAM
HANDLOOM AND TEXTILE DEPARTMENT
DISPUR
GUWAHATI-06.
4:THE DEPUTY COMMISSIONER
KAMRUP(METRO)
GUWAHATI- 781001.
5:THE GAUHATI MUNICIPAL CORPORATION
REP. BY ITS COMMISSIONER
GUWAHATI-781001.
6:THE COLLECTOR
GAUHATI MUNICIPAL CORPORATION
GUWAHATI- 781001
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Advocate for the Petitioner : MR. N N B CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 22-11-2021
N. Kotiswar Singh, J.)
Heard Mr. N.N.B. Choudhury, learned counsel for the appellant. Also heard Ms. M.
Bhattacharjee, learned Govt. Advocate, Assam, Mr. R. Borpujari, learned counsel for
respondent No.2; Mr. R. Dhar, learned counsel, for respondent No.3 and Mr. P. Nayak, learned
Standing Counsel, GMC.
2. Since the principal respondents have been duly represented, we are of the view that
the present appeal can be disposed of at this stage as also agreed to by the learned counsel
for the parties present.
3. It may not be necessary to go in detail regarding the facts and issues involved in the
present appeal except for the fact that the present appellant, Nazara Ahmed's husband,
namely, late Ahtasamuddin Ahmed was one of the co-petitioners in WP(C) No.3298/2012 in
connection with which the learned Single Judge of this Court had passed a common judgment
and order dated 11.10.2018 along with WP(C) Nos.5115/2018, 4890/2012 and 3090/2012
whereby certain acts of the State in seeking to evict the petitioners therein was challenged.
4. The said challenge, which was rejected by the learned Single Judge in the aforesaid
writ petitions vide common judgment and order dated 11.10.2018 was, however, put to
challenge before a Division Bench of this Court in WA Nos.335/2018, 238/2019, 340/2018
and 93/2019 wherein the Division Bench made an observation that even if the appellants
were said to be in illegal occupation, the authority could not have invoked Rule 18(2) of the
Assam Land and Revenue Regulation, 1886 but the respondent-authorities could proceed for
eviction under the provisions of any other appropriate law as may be available. The Division
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Bench, accordingly, interfered with the common judgment and order dated 11.10.2018 only
to that extent and also by providing that interference with the judgment of the learned Single
Judge would be only in respect of the appellants therein. The relevant portions of the
aforesaid judgment and order dated 03.12.2019 of the Division Bench are reproduced below:-
"15. From the said point of view, when we look into the factual matrix of the
present appeal, we have already nopted and concluded that the respective appellants
have entered the respective plots of land through an instrument issued by the different
Departments of the Government of Assam and hence their initial entry to their
respective plots of land cannot be said either to be illegitimate or to have been made
not in accordance with law.
16. It is another aspect that in course of time the purpose for which they were
put into possession was over and perhaps they are no longer entitled to remain in
further possession of the land.
17. If it is so, the remedy for the respondent authorities for evicting the
appellants would not be under the provisions of 18(2) of the Settlement Rules under
the Regulation of 1886, but it may be under the provisions of any other law.
18. Accordingly, we interfere with the process of eviction of the appellants by the
respondent authorities in exercise of power under Rule 18(2) of the Settlement Rules
under the Regulation of 1886, but, however, providing the liberty to the respondent
authorities to proceed for eviction of the appellants under the provision of any other
appropriate law as may be available.
19. In view of our conclusion, the judgment dated 11.10.2018 of the learned
Single Judge in WP(C) No.3300/2012, WP(C)No.3298/2012 and WP(C)No.4890/2012 is
interfered by further providing that such interference with the judgment of the learned
Single Judge would be only in respect of the present appellants."
5. Mr. Choudhury, learned counsel for the appellant, submits that unfortunately, though
the appellant's husband was one of the co-petitioners in WP(C) No.3298/2012, he could not
take part in the said appellate proceeding as he had expired during pendency of the
proceeding and the petitioner, being the wife of the said deceased, could not also implead
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herself as an appellant in the said appeal.
6. The Division Bench of this Court, however, made an observation that interference with
the judgment of the learned Single Judge would be only in respect of the appellants therein.
Thus, though the petitioner's husband was one of the petitioners, because of his death, the
petitioner will not be able to avail the said benefit which was granted by the Division Bench of
this Court vide order dated 03.12.2019 to the appellants therein, who were not writ
petitioners, and it is the similar treatment which is sought by the present appellant, Nazara
Ahmed.
7. We are of the view that extending similar treatment to the present appellant as her
husband, who was one of the co-petitioners in WP(C) No.3298/2012 will not cause any
prejudice to the State and accordingly we allow this appeal with the observation that the
direction of this Court given in paragraph Nos.17, 18, and 19 referred to above will also be
applicable to the present appellant, Nazara Ahmed.
8. With the above observation, the present appeal stands closed.
JUDGE JUDGE
Comparing Assistant
