Gopal Mandal vs The State Of Assam And 3 Ors
2022 Latest Caselaw 4763 Gua

                                                                Page No.# 1/6

GAHC010247072022




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

                         Case No. : WP(C)/7775/2022

         GOPAL MANDAL
         HUSBAND OF LAXMI MANDAL, S/O. LT. PRABHAKAR MANDAL, R/O.
         HOUSE NO.2, ARYA PATH NO.2, HOSTEL ROAD, .O. GOPINATH NAGAR
         (NEAR KALI MANDIR), P.S. BHARALUMUKH, KAMRUP (M), GUWAHATI,
         ASSAM, PIN-781016.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
         REVENUE DEPTT., DISPUR, GUWAHATI-781006.

         2:THE DEPUTY COMMISSIONER

          KAMRUP (M)
          OFFICE OF THE DEPUTY COMMISSIONER
          KAMRUP (M)
          LICHUBAGAN
          HENGRABARI
          GUWAHATI-781036.

         3:THE ADDL. DEPUTY COMMISSIONER

          KAMRUP METROPOLITAN DISTRICT
          GUWAHATI
          OFFICE OF THE DEPUTY COMMISSIONER
          KAMRUP (M) DISTRICT
          GUWAHATI (LAND SETTLEMENT BRANCH
          LICHUBAGAN
          HENGRABARI
          GUWAHATI-781036).
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            4:THE CIRCLE OFFICER

             OFFICE OF THE CIRCLE
             OFFICER
             GUWAHATI REVENUE CIRCLE
             (KAMRUP METRO DISTRICT) GUWAHATI-781006

Advocate for the Petitioner   : MR H GUPTA

Advocate for the Respondent : SC, REVENUE




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 05.12.2022

Heard Mr. S. Banik, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned standing counsel for the respondent no. 1 and Mr. M. Chetia, learned Government Advocate appearing for the respondent nos. 2 to 4.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the eviction notice dated 10.11.2022, issued by the Circle Officer, Guwahati Revenue Circle (respondent no. 4). The learned counsel for the petitioner has submitted that for more than 50 years the petitioner is in continuous occupation of the Government land measuring about 1 (one) katha, covered by Dag no. 90 (old)/ 370 (new) of Sahar Ulubari Part-III, Mouza- Ulubari, in the district of Kamrup, which is located in Arya Nagar, Girls Hostel Road, Guwahati. It is also submitted that the impugned notice is bad in law as it is not preceded by publication of notice as envisaged under Rule 18(3)

(a)(i) of the Rules under the Assam Land and Revenue Regulation, 1886. It is also submitted that the petitioner has been singled out for eviction but other similarly situated persons in the locality have not been issued any eviction Page No.# 3/6

notice. It is also submitted that on 14.10.2019, the petitioner had applied for settlement of the said land, which was not responded to and that the petitioner had also submitted his representation dated 28.11.2022 to the respondent no. 4, which was also not responded to.

3. Issue notice including notice on the prayer for interim relief, returnable on 04.01.2023.

4. The petitioner shall serve requisite extra copies of the writ petition to the learned State and departmental counsel within 2 (two) days.

5. The learned counsel for the petitioner in support of his prayer for interim relief, has submitted that from the members of Dakshin Madhya Guwahati Rangali Bihu Sanmilani, the petitioner has come to know that their application for settlement of a nearby land was refused by the Deputy Commissioner, Kamrup (M) by letter dated 29.08.2001, purportedly on the ground that land covered by dag no. 381 was reserved for construction of Children's Park, but when the petitioner made a RTI application for obtaining copy of notification of reserving land covered by dag nos. 370, 381 and 382 for construction of Children's Park, the document could not be provided and the Addl. Deputy Commissioner, Kamrup (M) by his letter dated 11.11.2019, had directed the petitioner to obtain the same from the Government as it was not available in their file. Thus, it was submitted that it would take the petitioner some time to obtain the necessary documents so as to challenge the same and therefore, till a reasonable time, it was prayed that the petitioner be protected from eviction. In support of his prayer for an interim relief, the learned counsel for the petitioner has placed reliance on the case of Radha Kanoo & Ors. v. Assam Board of Revenue & Ors., (1994) 1 GLR 122, Page No.# 4/6

6. The prayer for interim relief is opposed by the learned Government as well as the learned departmental counsel and in this regard, reliance has been placed on the judgment of this Court in W.P.(C) 7159/2022 - Keshab Barman & 153 others v. The State of Assam & Ors., decided on 09.11.2022.

7. Considered the materials available on record and also perused the cases cited by the learned counsel for both sides in connection with the prayer for interim relief.

8. It is observed from the RTI reply dated 11.11.2019 issued to the petitioner by the Addl. Deputy Commissioner, Kamrup (M) that while the copy of Government letter no. RSS.383/99/4 dated 03.06.1999 was not available with the Office of the Deputy Commissioner, Kamrup (M), by which land covered by dag nos. 370. 381 and 382 under Sahar Ulubari Part-III, Mouza- Ulubari was reserved for Children's Park, but the petitioner was furnished with a copy of the letter no. KRS.1087/2000/9 dated 21.08.2001, issued by the Deputy Commissioner, Kamrup, thereby reserving the Government land covered by dag nos. 370, 381 and 382 of Sahar Ulubari Part-III, Mouza- Ulubari for Children's Park. Therefore, it is apparent that as back as on 11.11.2019, the petitioner was provided RTI information of the fact that the land which was being occupied by the petitioner was earmarked for construction of Children's Park.

9. Therefore, in the considered opinion of the Court, the overwhelming public interest to have a Children's Park must be allowed to prevail over the private interest of the petitioner, who has not been able to demonstrate that he has any right or title over the land measuring about 1 (one) katha, covered by Dag no. 90 (old)/ 370 (new) of Sahar Ulubari Part-III, Mouza- Ulubari, in the district of Kamrup, which is located in Arya Nagar, Girls Page No.# 5/6

Hostel Road, Guwahati.

10. It may be mentioned that the Division Bench of this Court, by order dated 31.03.2021, passed in connection with P.I.L. (Suo Motu) No.10/2008, had taken note of the fact that vast area of land in Kamrup (M) District was under encroachment and therefore, direction was issued to the State Government to "... work out a concrete scheme for removal of the encroachers, or settlement, if permissible in law, shall also be explored . ..." Thus, the impugned eviction notice dated 10.11.2022 discloses that the authorities have decided to evict the petitioner.

11. In the case of Radha Kanoo (supra), the said petitioner was paying Touzi Revenue, which is not so in the case of the present petitioner. The learned counsel for the petitioner had submitted that the petitioner was paying municipal tax for his constructed area. In this regard, the Court is of the considered opinion that the holding tax is realized by the Guwahati Municipal Corporation, whereas if the concerned land is a Government land, such a land is not vested on the Guwahati Municipal Corporation. Therefore, prima facie, the cited case does not help the petitioner as payment of holding tax to the Guwahati Municipal Corporation would not help the petitioner in any manner to set up adverse title against the State Government.

12. Accordingly, the Court is of the considered opinion that the petitioner has not been able to make out any case for grant of interim relief at this stage.

13. However, it is provided that the pendency of this writ petition shall not be a bar for the Deputy Commissioner, Kamrup (M), Guwahati to dispose of the application dated 14.10.2019 (Annexure-4) for settlement of land Page No.# 6/6

within a period of 1 (one) month from the date of receipt of the certified copy of this order.

14. It is clarified that none of the observations made herein or refusal to grant interim relief shall prejudice the petitioner when the matter is heard on merit.

15. List the matter on 04.01.2023.

JUDGE

Comparing Assistant