Page No.# 1/9 vs The State Of Assam And 6 Ors
2022 Latest Caselaw 2758 Gua

                                                               Page No.# 1/9

GAHC010116412022




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

                           Case No. : WA/217/2022

         BHOLA BHOUMICK AND 16 ORS.
         S/O LT N ALINIKANTA BHOUMICK, R/O DAKHIN GOLAGHATIA BASTI,
         P.O.-HOJAI, DIST-HOJAI, ASSAM, PIN-782435

         2: RATAN PAUL
          S/O LT. AMULYA PAUL
          R/O KRISHNA NAGAR BELTOLA
          P.O.-HOJAI
          DIST-HOJAI
         ASSAM
          PIN-782435

         3: SANTOSH KUMAR VERMA
          S/O LT. ACHKHALAL VERMA
          R/O NEW MARKET
          NEAR KRISHNA MANDIR BELTOLA
          P.O.-HOJAI
          DIST-HOJAI
         ASSAM
          PIN-782435

         4: VIJOY KUMAR PRASAD
          S/O LT. RAMEAKBAL PRASAD
          R/O KRISHNA NAGAR NEAR HANUMAN MANDIR
          P.O.-HOJAI
          DIST-HOJAI
         ASSAM
          PIN-782435

         5: ON THE DEATH OF SRI MONORANJAN SAHA REPRESENTED BY HIS
         SON NAMELY MONOJ SAHA
          R/O KALIBARI ROAD
         WARD NO. 5
          P.O.-HOJAI
                                                      Page No.# 2/9

DIST-HOJAI
ASSAM
PIN-782435

6: DAYASANKAR THAKUR
 S/O RISHIDEVO THAKUR
 R/O LALPATTY WARD NO. 6
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

7: PRADIP CHANDRA DUTTA
 S/O LT. RABINDRA CHANDRA DUTTA
 R/O THAKURBARI ROAD KRISHNANAGAR
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

8: ON THE DEATH OF GOBINDA GHOSH REPRESENTED BY HIS SON
NAMELY SRI DIPAK GOSH
 R/O SHIVBARI ROAD
WARD NO. 4
 P.O.-HOJAI
 DIST- HOJAI
ASSAM
 PIN-782435

9: NILIMA BISWAS
W/O LT. KALIPADA BISWAS
 R/O KRISHNA NAGAR
WARD NO. 10
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

10: BIPLOB SARKAR
 S/O LT. RAMESH CHANDRA SARKAR
 R/O SIVBARI ROAD
 P.O.-HOJAI
 DIST- HOJAI
ASSAM
 PIN-782435

11: ON THE DEATH OF BANARASI PASWAN REPRESENTED BY HIS SON
NAMELY SRI SHIRJEE PASWAN
                                                        Page No.# 3/9

R/O LALPATTY
WARD NO. 6
P.O.-HOJAI
DIST-HOJAI
ASSAM
PIN-782435

12: DINABANDHU DEBNATH
 S/O LT. MURARI MOHAN DEBNATH
 R/O TELIBASTI
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

13: ON THE DEATH OF AJIT KUMAR PAUL REPRESENTED BY HIS SON
NAMELY SRI APURBA PAUL
 R/O SANTINAGA
 GOALGHATIA BASTI
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

14: JAYNATA GHOSH
 S/O LT. MONORANJAN GHOSH
 R/O SIVBARI ROAD
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

15: BIJU DUTTA
 S/O LT. BINOY DUTTA
 R/O BANK COLONY BISHNUPALLY
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435

16: RANJIT DUTTA
 S/O LT. ASHWINI KUMAR DUTTA
 R/O GOBINDAPALLY
WARD NO. 8
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-782435
                                                    Page No.# 4/9


17: SHANKAR SAH
 S/O RAJ NARAYAN SAH
 R/O SHANKARPATTY R.B. LANE
 P.O.-HOJAI
 DIST-HOJAI
ASSAM
 PIN-78243

VERSUS

THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVERNMENT
OF ASSAM, REVENUE SETTLEMENT DEPARTMENT, DISPUR, GUWAHATI-
781006

2:THE DEPUTY COMMISSIONER
 HOJAI
 P.S. AND DIST-HOJAI
ASSAM
 PIN-782435

3:THE CIRCLE OFFICER
 HOJAI REVENUE CIRCLE
 P.S. AND DIST-HOJAI
ASSAM
 PIN-782435

4:THE GENERAL MANAGER
 NORTH EAST FRONTIER RAILWAY
 MALIGAON SHUTTLE GATE ROAD
 EAST MALIGAON
 MALIGAON
 GUWHAATI-781010
ASSAM

5:THE ESTATE OFFICER
 N.F. RAILWAY
 LUMDING
 DIST-HOJAI
ASSAM
 PIN-782435

6:THE DIVISIONAL ENGINEER
 N.F. RAILWAY
 LUMDING
 DIST-HOJAI
ASSAM
                                                                       Page No.# 5/9

             PIN-782435

            7:THE UNION OF INDIA
             REPRESENTED BY THE SECRETARY
             MINISTRY OF RAILWAY
             RAIL BHAWAN
             NEW DELHI
             PIN-11000

Advocate for the Petitioner   : MR. A M BARBHUIYA

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                         HONOURABLE THE CHIEF JUSTICE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

Date : 05-08-2022 R.M. Chhaya, C.J.

Heard Mr. A.M. Barbhuiya, learned counsel for the appellants; Ms. R.B. Bora, learned Government Advocate for the respondent Nos. 2 and 3 and Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India for the respondent Nos. 4 to 7.

By way of this writ appeal, the appellants/original petitioners have challenged the order dated 11.05.2022 passed by the learned Single Judge in W.P.(c) No. 3062/2022.

Having heard the learned counsel for the parties, it appears that the land in question covered by Dag No. 465 of No. 2 Kisamat measuring 27 Bighsa-2 Kathas-11 Lechas, Lat No. 05 of Hojai town No. 2 under Mouza Hojai under Hojai Revenue Circle, Sub-Division- Hojai, District-Hojai belongs to the respondent No. 4 and the Union of India. It also appears that the authorities took action against the appellants on the ground that they are illegal occupants Page No.# 6/9

of the land/premises in question. It is a matter of fact that notice as provided under Section 4(1) of the PPE Act, 1971 (hereinafter referred as to "the Act) was issued in Form-A upon the petitioners on 20.11.2018 and thereafter, the same has culminated into an order dated 28.12.2018. On the premise that other writ petitions were pending and the orders were stayed, it is asserted by the learned counsel appearing for the appellants that the learned Single Judge has committed an error in dismissing the petition.

As against this, Mr. Choudhury, learned Addl. Solicitor General of India has pointed out that the petitioners have not challenged the order dated 28.12.2018 and even though there was earlier stay, the fact remains that as on date, there is no stay or restraint on the authorities to implement the order dated 28.12.2018 and there is no restraint or bar on part of the petitioners to resort to appellate provisions as provided under Section 9 of the Act.

Mr. A.M. Barbhuiya, learned counsel appearing for the appellants vehemently relied upon the observations made by the learned Single Judge in earlier writ petition being W.P(C) No. 7121/2015 and Ors., which came to be disposed of by the learned Single Judge of this Court. The attention of this Court was drawn to the observations made by the learned Single Judge, more particularly, in Para-14 of the said order.

In the light of the observations made by the learned Single Judge in the impugned order, it cannot be said that the authorities have not adhered to the observations made by the learned Single Judge in the Judgement and Order dated 28.01.2022 in W.P(C) No. 7121/2015. The learned Single Judge in the impugned order has also considered the fact that the writ petitions came to be dismissed on 28.01.2022 and therefore, the interim orders passed in both the Interlocutory Applications automatically stood merged with the said final order Page No.# 7/9

dated 28.01.2022. The learned Single Judge is correct in coming to the conclusion that the same has no bearing in the instant proceedings. The learned Single Judge in the impugned Judgment has considered the earlier litigation and has observed as under:

"29) Thereafter, the present petitioners preferred an appeal before the Hon'ble Division Bench of this Court being Writ Appeal No. 149/2022 against the common judgment and order dated 28.01.2022 passed in WP(C) No. 7121/2015 and the Hon'ble Division Bench after hearing the learned counsels for the parties disposed of the same by order dated 29.04.2022 with the following observations:--

"13. We are of the view that the said submission of the learned counsel for the appellants is in order as the Railways could not proceed with eviction without following due process as mentioned in the order of the learned District Judge, Nagaon as well as in the order of the learned Single Judge in terms of the provisions of the Act of 1971.

14. Accordingly, we close this appeal with the observation that any adverse action sought to be taken by the Railways will be subject to compliance of the mandate as provided under the Act of 1971 and after disposing of the show-cause replies submitted by the appellants as mentioned above. However, as observed by the learned Single Judge, the State of Assam may consider taking necessary steps for rehabilitation of the appellants subject to filing of appropriate application under the provisions of law.

15. It is made clear that our observation that Railways shall not take any coercive action will be of course subject to the condition that no action has already been taken and if already taken, the appellants can approach the appropriate forum for redressal of their grievances."

30) It is seen that the petitioners neither in said Writ Appeal No. 149/2022 as well as in the present writ petition did not state anything about the issuance and serving of Notice under Section 4 (1) of the said PPE Act, 1971 in the requisite Form-A on 20.11.2018 by the Estate Officer, NF Railways, Lumding, upon the unauthorized occupants, including the petitioners, as well as the order dated 28.12.2018 passed Page No.# 8/9

under Section 5 (1) of the PPE Act, 1971 in the requisite Form-B serving copies of the same to each of such unauthorized occupants, including the petitioners, specifying the respective schedule of the land under their occupation, passed by the said Estate Officer, which were the subject matters of I.A.(C) No. 4221/2018 filed by the petitioners disposed of on 18.12.2018 and the I.A(C) No. 231/2019 wherein the Court by order dated 25.01.2019 suspended the said order dated 28.12.2018 passed by the Estate Officer, NF Railway, Lumding in the matter eviction of Sri Bhola Bhowmick and 16 others, respectively, noted above.

31) It is also seen that said I.A(C) No. 231/2019 noted above, preferred by the petitioners was disposed of on 28.01.2022 in view of the common judgment and order passed by the learned Single Judge in said WP(C) No. 7121/2015 and 3 others connected writ petitions, noted above.

32) From the common judgment and order dated 28.01.2022 passed in WP(C) No. 7121/2015 and other connected matters and also the order dated 29.04.2022 passed by Hon'ble Division Bench in WA No. 149/2022 as well as the relevant records placed before the Court, noted above, it is apparent that land of Dag No. 465 of No.2 Kisamat measuring 27 Bighas 2 Kathas 11 Lechas Lat No. 05 of Hojai Town No.2 under Mouza - Hojai under Hojai Revenue Circle, Sub-Division - Hojai, District - Hojai does not belong to the State Government and therefore, the question of settlement of said land with the petitioners, which is under their wrongful occupation, cannot be considered.

33) It is to be noted herein that the petitioners after the disposal of the said WP(C) No. 7121/2015 on 28.01.2022 or after the order dated 29.04.2022, passed in said WA No. 149/2022 did not prefer any appeal under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 against the Notice under Section 4 (1) of the PPE Act, 1971 in the requisite Form-A were duly issued to the petitioners on 20.11.2018 and the order dated 28.12.2018 passed under Section 5 (1) of the PPE Act, 1971 in the requisite Form-B, both issued and passed by the concerned Estate Officer, NF Railways, Lumding.

34) From the affidavits filed by the Deputy Commissioner, Hojai as well as the Estate Officer, NF Railway, Lumding in said WP(C) No. 7121/2015 it is clear that the said Page No.# 9/9

land belongs to the Government (Central Government) under the authorities of the respondent Railways and since the Notice under Section 4 (1) of the PPE Act, 1971 in the requisite FormA were duly issued to the petitioners on 20.11.2018 and the order dated 28.12.2018 passed under Section 5 (1) of the PPE Act, 1971 in the requisite Form-B, both issued and passed by the concerned Estate Officer, NF Railways, Lumding that were duly served upon the petitioners and further, considering the observation made by the Hon'ble Division Bench in paragraph 15 of the order dated 29.04.2022, passed in WA No. 149/2022, therefore, the Court is of the view that the Communication No.W/212/LM/1/W-4 dated 05.05.2022 issued by the Estate Officer, NF Railway, Lumding (Annexure - 7 to this writ petition) does not call for any interference in exercise of the powers conferred under Article 226 of the Constitution of India.

35) Accordingly, this writ petition being devoid of any merit, stands dismissed. We are in total agreement with the observations made by learned Single Judge. The appellants as encroachers do not have any further right than the right to file appeal under Section 9 of the Act against the order has been passed under Section 5(1) of the Act.

In the light of the aforesaid, it is provided that it would be open for the appellants to file appropriate appeal before the appropriate authority under Section 9 of the Act. The appeal is otherwise is devoid of any merit and the same is hereby dismissed. However, there shall be no order as to costs.

                   JUDGE                       CHIEF JUSTICE



Comparing Assistant