Page No.# 1/4 vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2148 Gua

                                                                 Page No.# 1/4

GAHC010137942021




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

                          Case No. : WP(C)/4460/2021

         DILBER HUSSAIN AND 2 ORS
         S/O KRMAN ALI
         RESIDENT OF KATHALDI PT II
         DHUBRI, ASSAM, 783348

         2: MOHAMMAD ALI
          S/O LATE BILAT ALI
         RESIDENT OF VILLAGE SUAPATA PT III
         DHUBRI
         ASSAM
          783348

         3: MESER ALI MONDAL
          S/O MOHAMMAD ALI
         RESIDENT OF VILLAGE SUAPATA PT IV
         DHUBRI
         ASSAM
          78334

         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT , PANJABARI,
         JURIPAR, GUWAHATI 37

         2:THE CHIEF EXECUTIVE OFFICER

          DHUBRI ZILLA PARISHAD
          DHUBRI
          ASSAM 783301

         3:THE NAYERALGA ANCHALIK PANCHAYAT
          REPRESENTED BY THE PRESIDENT OFFICE OF THE NAYERALGA
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            ANCHALIK PANCHAYAT
            BILASIPARA
            DHUBRI
            ASSAM 783348

            4:THE BLOCK DEVELOPMENT OFFICER CUM EXECUTIVE OFFICER

             OFFICE OF THE NAYERALGA ANCHALIK PANCHAYAT
             BILASIPARA
             DHUBRI
             ASSAM 783348

            5:THE KAZAIKATA SUAPATA GAON PANCHAYAT

             REPRESENTED BY THE SECRETARY
             KAZAIKATA SUAPATA GAON PANCHAYAT
             DHUBRI
             ASSAM 783348

            6:THE CIRCLE OFFICER

             BILASIPARA REVENUE CIRCLE
             BILASIPARA
             DHUBRI
             ASSAM 78334

Advocate for the Petitioner   : MR T MEELEE

Advocate for the Respondent : GA, ASSAM

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

10-09-2021

Heard Mr. S. Sarma, learned counsel for the petitioners and Mr. M. Nath, learned Standing counsel, P&RD Department of the State for the respondent Nos. 1 to 5. Also heard Mr. N, Goswami, learned Government Advocate, Assam for the respondent No. 6.

Petitioners placed before the Court that in terms of the meeting of the Standing Committee of 110 No. Kazaikata-Suapata Gaon Panchayat held on 29.06.2021 regarding settlement of Ghats over Page No.# 3/4

private land, the said Panchayat by Order Nos. KSGP-03/2018-19/38, KSGP-03/2018-19/36 and KSGP- 03/2018-19/387, all dated 30.06.2021 settled the Parghats of (i) Goalerchar Gourang Ghat, (ii) Suapata Pt. III Kata Khali Ghat and (iii) Kazaikata Pt. III Halua Ghat respectively with them under

Section 107 of the Assam Gaon Panchayat Act, 1994 for the period from 1 st July 2021 to 30th June, 2022 at Rs. 45,000/-, Rs.60,000/- and Rs.45,000/- respectively.

Petitioners brought to the notice of this Court that the Nayeralga Anchalik Panchayat, Bilasipara, Dhubri has now issued the impugned NIT under Memo No. N.A.A.P.-10/Hat-Ghat/202122 dated 04.08.2021 (Annexure-1 and 1A to the writ petition) for settlement of aforesaid three Parghats along with other Ghats and Haats for the period from 01.09.2021 to 30.06.2022. Petitioners submitted that during subsistence of the lease of those three Parghats with them, said Anchalik Panchayat cannot place those Parghats for lease by another process of bid issuing the impugned NIT. Alleging that said action of Nayeralga Anchalik Panchayat in issuing the impugned NIT dated 04.08.2021 with regard to settlement of those three Parghats, which are already settled with them by 110 No. Kazaikata-Suapata Gaon Panchayat on 30.06.3021, being illegal and arbitrary, the petitioners have preferred this petition praying for setting aside and quash the said impugned NIT dated 04.08.2021.

Mr. Nath, learned Standing counsel, P&RD by placing reliance on the Judgment of a Division Bench of this Court passed in the case of Rupam Talukdar Vs. State of Assam and others reported in 2009 (4) GLT 126 submitted that since the provisions of section 107 of the Panchayat Act, 1994 as well as the Rule 47 of the Assam Panchayat (Financial) Rules, 2002 have been declared ultra-vires and therefore, petitioners cannot claim any right regarding settlement of those three Parghats with them by 110 No. Kazaikata-Suapata Gaon Panchayat.

Heard the submissions of the learned counsels for the parties.

It is seen from the report of the Circle Officer, Bilasipara Revenue Circle under No. B.P.C.5/2020/83 dated 25.06.2021 submitted before the President of said Kazaikata-Suapata Gaon Panchayat (Annexure-5 and 5A to the writ petition) that all three Parghats named above are on Myadi Patta land of private pattadars.

From the impugned NIT dated 04.08.2021 of the Nayeralga Anchalik Panchayat, Bilasipara, Dhubri (Annexure-1 and 1A to the writ petition), it is seen that it does not consist the name of Suapata Pt. III Kata Khali Ghat.

Considered the Judgment in the case of Rupam Talukdar (supra). On being enquired it is clarified that Judgment of the Division Bench of this Court passed in the case of Rupam Talukdar Page No.# 4/4

(supra) that was decided on 30.09.2009 is still in force, which has become final and absolute by the passage of time.

In view of the said decision of the Court in the case of Rupam Talukdar (supra) prima facie said 110 No. Kazaikata- Suapata Gaon Panchayat has no power and jurisdiction to settle aforementioned three Parghats with the petitioners in exercise of the power conferred under Section 107 of the Panchayat Act, 1994, since said provision has already been declared as unconstitutional way back on 30.09.2009.

Considering the above and on perusal of the judgment passed by the Division Bench of this Court in the case of Rupam Talukdar (supra), this writ petition being devoid of merit, stands dismissed.

Before parting with the case, it is made clear that for redressal of their grievances, petitioners may approach said 110 No. Kazaikata- Suapata Gaon Panchayat and on the failure of said Gaon Panchayat, petitioners may approach the appropriate forum, if so advised.

In view of said judgment of the Division Bench of this Court in the case of Rupam Talukdar (supra), the respondent Nayeralga Anchalik Panchayat, Bilasipara, Dhubri shall also verify as to whether it has the necessary power and jurisdiction to settle any such Ghats and Haats standing over private land.

The Commissioner to the Government of Assam in the Panchayat and Rural Development Department, Government of Assam shall forthwith inform all the Panchayats of the State about the Division Bench Judgment of this Court in the case of Rupam Talukdar (supra) wherein the Court on 30.09.2009 itself declared the provisions of section 107 of the Panchayat Act, 1994 as well as the Rule 47 of the Assam Panchayat (Financial) Rules, 2002 as unconstitutional, so that the Panchayats do not settle such Ghats and Haats under the provision of Section 107 of said 1994 Act.

A copy of this order be furnished to Mr. M. Nath, learned Standing counsel, P&RD Department of the State for his necessary use.

JUDGE

Comparing Assistant