Mina Devi Choudhury vs Pranab Jyoti Barman And 9 Ors
2022 Latest Caselaw 1673 Gua

                                                             Page No.# 1/11

GAHC010216682019




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

                        Case No. : I.A.(Civil)/2979/2019

         MINA DEVI CHOUDHURY
         W/O SRI MOHANANDA CHOUDHURY, D/O LT. BANGALI KAHAR, R/O
         KARAKUCHI, SAWKUCHI ROAD, GUWAHATI.



         VERSUS

         PRANAB JYOTI BARMAN AND 9 ORS
         S/O PRAMODE CHANDRA BARMAN, R/O RUKMINI NAGAR, NAMGHAR
         PATH, DISPUR, GUWAHATI 781006

         2:KUNTALA BARMAN
          D/O PRAMODE CHANDRA BARMAN
          R/O RUKMINI NAGAR
          NAMGHAR PATH
          DISPUR
          GUWAHATI 781006

         3:THE STATE OF ASSAM

          REPRESENTED BY THE COMMISSIONER AND SECY.
          TO THE GOVT. OF ASSAM
          HOME DEPTT.
          DISPUR
          GUWAHATI-6

         4:THE DIRECTOR GENERAL OF POLICE
         ASSAM POLICE HEADQUARTERS ULUBARI
          GUWAHATI-7

         5:THE SENIOR SUPERINTENDENT OF POLICE
          GUWAHATI CITY
          PANBAZAR
                                                             Page No.# 2/11

             GUWAHATI-7

            6:THE DEPUTY COMMISSIONER
             KAMRUP (M)
             PANBAZAR
             GUWAHATI-1
            ASSAM

            7:THE CIRCLE OFFICER
             DISPUR REVENUE CIRCLE
            WIRELESS
             BELTOLA
             GUWAHATI-21

            8:OFFICER IN CHARGE
             CID POLICE STATION
             PANBAZAR

            9:OFFICER IN CHARGE
             BASISTHA POLICE STATION
             BASISTHA
            ASSAM.

            10:UPEN MOHAN
             SUB INSPECTOR
             CID POLICE STATION
             ULUBAR

Advocate for the Petitioner   : MR. P K GOSWAMI

Advocate for the Respondent : GA, ASSAM




             Linked Case : WP(C)/6589/2013

            PRANAB JYOTI BARMAN and ANR.
            S/O PRAMODE CHANDRA BARMAN R/O RUUKMINI NAGAR
            NAMGHAR PATH
            DISPUR
            GUWAHATI- 781006.

            2: SMT. KUNTALA BARMAN
            S/O PRAMODE CHANDRA BARMAN R/O RUKMINI NAGAR
             NAMGHAR PATH
                                                             Page No.# 3/11

DISPUR
GUWAHATI- 781006.
VERSUS

THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.

2:THE DIRECTOR GENERAL OF POLICE
ASSAM POLICE HEADQUARTERS
 ULUBARI
 GUWAHATI- 7.
 3:THE SENIOR SUPERINTENDENT OF POLICE
GUWAHATI CITY
 ULUBARI
 GUWAHATI-7.
 4:THE DEPUTY COMMISSIONER

KAMRUP METRO
PANBAZAR
GUWAHATI-1
ASSAM.
5:THE CIRCLE OFFICER

DISPUR
REVENUE CIRCLE
WIRELESS
BELTOLA
GUWAHATI-21.
6:OFFICER-IN-CHARGE

CID POLICE STATION
PANBAZAR
7:OFFICER-IN-CHARGE

BASISTHA POLICE STATION
BASISTHA
ASSAM.
8:UPEN MOHAN
SUB-INSPECTOR
CID POLICE STATION
PANBAZAR.
------------
Advocate for : MS.I KRISHNATRAIYA
Advocate for : MR.H BARUAH appearing for THE STATE OF ASSAM AND 7 ORS
                                                                       Page No.# 4/11




                                BEFORE
                HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                     ORDER

Date : 18.05.2022

Heard Mr. B.D. Deka, learned counsel for the applicant and Mr. D. Barman, learned counsel for the opposite party nos. 1 and 2 and Mr. C.S. Hazarika, learned Govt. Advocate appearing for opposite party nos. 3 to 9.

2. This interlocutory application has been filed by the respondent no.10 in the connected WP(C) 6589 of 2013 with a prayer to modify the judgment and order dated 26.06.2019, so as to protect the interest of the applicant (respondent no. 10 in the writ petition) and issue necessary clarification that the order would not be executed in respect of the land held and possessed by the applicant.

3. The essential background facts are that the opposite party nos. 1 and 2, claim to be the owner of the land measuring 2(two) bighas, out of which the opposite party no.1 is the owner of land measuring 1(one) bigha (13.38 Are), covered by Dag No. 618/1527 and Patta No. 120/98 of Village Sawkuchi under Mouza Beltola, purchased vide registered sale deed bearing No.5445 dated 02.05.2010. The remaining 1(one) bigha land (13.38 Are), covered by Dag No. 618/1527 of Patta No.120/98 of Village Sawkuchi under Mouza Beltola, is owned by the opposite party no.2, having purchased the same by registered sale deed No.5444 dated 02.09.2010. In this regard, the opposite parties no.1 and 2 have placed reliance on the mutation order dated 26.11.2010, passed by the Circle Officer, Dispur Revenue Circle in Mutation Case No.6815/2010-11 and the Page No.# 5/11

mutation order dated 30.11.2010 passed by the Circle Officer, Dispur Revenue Circle in Mutation case No. 6816/2010-11.

4. By orders dated 13.09.2011 and 22.09.2011, passed by the learned Chief Judicial Magistrate, Kamrup (Metropolitan), Guwahati, in the proceedings of CID PS Case No. 14 of 2011, the said property which was attached by exercising power under Section 105 (E) (2) Cr.PC. In the connected writ petition, it was alleged that at the connivance of police personnel, the attached land was encroached and certain constructions had been permitted to come up on the said land. Accordingly, in the connected writ petition, it was projected that the attachment orders were violated when the properties were under custodia legis of the State. Hence, prayer was made for directing the Deputy Commissioner, Kamrup Metropolitan, Guwahati, to demolish the unauthorized construction over the said land and to restore the land to its previous position, as a vacant land.

5. The learned counsel for the applicant has submitted that although the applicant was subsequently impleaded as respondent no.10 in the connected writ petition, but on the date of hearing, the applicant remained unrepresented and accordingly, the stand of the applicant as contained in the affidavit-in- opposition, was not taken note by this Court. It is submitted that the applicant is the legal representative of the original patta holder and claims right of inheritance over the entire patta land and claims proportional right over the land as a co-owner along with other co-owners. It is also submitted that without the consent of the applicant, some co-owners had sold the disputed land to the opposite parties nos. 1 and 2. Accordingly, it is submitted that the opposite parties no. 1 and 2 do not have any right, title and interest over any part of the Page No.# 6/11

property. It is further submitted that at the time of attaching the land some time in the year 2011, there is no record of any attachment memo being prepared that the land was in possession of any particular co-owner. Hence, it is submitted that the applicant should be given an opportunity of hearing before the Deputy Commissioner so as to establish her right, title and interest, as well as ownership and possession over the disputed land at the time when the attachment order was made. It is also submitted that the said exercise has been done on the strength of the order of this Court which was passed in the connected writ petition. Hence, unless the applicant is permitted to agitate her grievance, the applicant would be remediless. It is also submitted that before approaching this Court for modification of the order, the applicant had sought for a clarification from the police authorities and the Special Superintendant of Police, by a letter dated 19.09.2013, had clarified that the attachment was limited to the land as per the description given in the orders of the Court.

6. Per-contra, the learned counsel for the opposite parties no. 1 and 2 has submitted that the land which was attached was vacant at that point of time and therefore any construction that has come up over the land was not at the instance of the opposite parties no. 1 and 2, but it was done at behest of the applicant, who is arrayed as respondent no.10 in the connected writ petition. It was also submitted that the land was identified by revenue staff before attachment. It is further submitted that after attachment, when the applicant raised objection to and had contested the attachment, at that stage the opposite parties no. 1 and 2 had approach this Court by filing the connected writ petition.

Page No.# 7/11

7. The Court is conscious of the fact that at present the Court is not exercising review jurisdiction. Nonetheless, the fact remains that not only the applicant had entered appearance in the writ proceeding as respondent no.10, but she had also filed her affidavit-in-opposition. Though the applicant had remained unrepresented when the writ petition was heard, nonetheless, it is also a fact that this Court did not take note of the affidavit-in-opposition filed by the applicant as respondent no.10. Hence, the Court did not take into account the fact that in respect of the entire 3 Bighas - 3 Kathas - 15 Lechas of land, covered by Dag No. 707 (old)/618 (new) of K.P Patta No.221 (old)/120 (new) of Village Sawkuchi, Mouza Beltola, District Kamrup Metro was the subject matter of Title Suit No.68 of 2007, which was then pending before the Court of learned Civil Judge no.3, Guwahati. It has been submitted at the bar that the said suit is still pending for adjudication before the said learned Court.

8. Be that as it may, the order of attachment was passed by the order dated 13.09.2011 passed by the learned Chief Judicial Magistrate, Kamrup Metro, Guwahati in connection with CID PS Case No/14 of 2011 by invoking power conferred under Section 105 (E) (2) Cr.PC. From the materials available on record, it appeared from the way of mutation order at page 43 of the writ petition that in the order of mutation dated 26.11.2010, it has mentioned that as per the report of the Lat Mandal, the Circle Officer concerned had recorded his findings that the applicant i.e. Smt. Kuntala Barman was in possession of the land in question. The said land is the subject matter of the writ petition. Therefore, it prima facie appears that when the land was mutated by order dated 26.11.2010, the opposite party no.1 was found to be in possession. Therefore, there is no material before the Court to suggest when the land was Page No.# 8/11

attached by the orders passed by the learned Chief Judicial Magistrate, the land in question was in possession of the applicant.

9. This Court by order dated 26.06.2019, inter alia, issued the following directions in paragraph 11 of the said order which is quoted below:

"11. The photographs annexed to the additional affidavit reveals that some constructions have come off on the attached land. This Court is prima-facie satisfied that the land belonging to the petitioners were attached by the learned Chief Judicial Magistrate, Kamrup (Metropolitan), Guwahati in connection with CID Case No. 14/2011. Accordingly, the said land of the petitioners is under custodia legis. Accordingly, this Court is inclined to issue the following directions to the Deputy Commissioner, Kamrup (Metropolitan), Guwahati, and it would be open to the Deputy Commissioner, Kamrup (Metropolitan), Guwahati to enforce the same through his subordinates including Circle Officer, Dispur Revenue Circle or any other official deputed for the purpose. The directions are as under:

I. Again an enquiry would be caused to ascertain as to whether the land of the petitioners No.1 and 2 as described in their respective sale deeds and the orders of mutation mentioned in para-3 of this order is the same land described in the order dated 22.09.2011 passed by the learned Chief Judicial Magistrate, Kamrup (Metropolitan), Guwahati as described in para-10 of this order.

II. The concerned authorities shall inform the petitioners about the date and time of inspection of their land and the inspection shall be carried out.

III. The petitioner shall submit their affidavit to confirm that the construction on the attached land is not belonging to them.

IV. If on inspection, anybody comes forward to take responsibility of the construction and if it is found that the construction was illegally made by other party, who is not the owner of the land, the Deputy Commissioner shall immediately demolish all the said unauthorized construction without any further Page No.# 9/11

reference from the Court, without demolishing the boundary wall and the iron gate so that the attached land remains secured.

V. The Deputy Commissioner shall also examine if any case/offence of land grabbing is made out and if so, the competent Tribunal shall be moved.

VI. As it is seen from the Circle Officer's report dated 06.03.2019, addressed to the Deputy Commissioner, Kamrup (Metropolitan), Guwahati that out of 2 (two) Bigha land, 1 (one) Bigha land is in the name of Smti. Kuntala Barman (petitioner No.2). The Deputy Commissioner, Kamrup (Metropolitan) will cause the enquiry as to the ownership and mutation of the land in the name of petitioner No.1 by placing reliance on the order of mutation dated 30.11.2010 passed by the Circle Officer, Dispur Revenue Circle in Mutation Case No.6816/2010-11 and the said land should be restored in the name of the petitioner No.1, otherwise it will defeat the order of attachment passed by the learned Chief Judicial Magistrate, Kamrup (Metropolitan), Guwahati.

VII. The (Deputy Commissioner, Kamrup (Metropolitan), Guwahati shall be the custodian of the land attached by the learned Chief Judicial Magistrate, Kamrup (Metropolitan), Guwahati in CID P.S. Case No. 14/2011, and it would be open to the Deputy Commissioner, Kamrup (Metropolitan), Guwahati to appoint a delegate on his behalf in respect of the attached land.

12. Liberty is granted to both sides to approach this Court for any further orders if there is any difficulty in implementing of this order after further clarification."

10. Accordingly, the applicant has now approach this Court with a prayer to modify the order. Having regard to the nature of claim made by the applicant, the Court is inclined to allow the applicant to participate in the hearing before the Deputy Commissioner, Kamrup Metro, Guwahati in terms of the direction contained in paragraph 11 of the said order, if such hearing has not yet been concluded. Hence, it is clarified that if such hearing is already concluded, the Page No.# 10/11

matter need not be reopened again.

11. The Court is further inclined to observe that the scope to the Deputy Commissioner, Kamrup Metro, Guwahati in conducting the hearing would be limited to directions as contained in sub-paras of paragraph 11 of the order dated 26.06.2019 passed in WP(C) 6589/2013. The scope of such enquiry cannot be extended to permit the said authority to go into the questions of right, title and interest, which is within the exclusive domain of the competent Civil Court.

12. In other words, the Court is inclined to clarify that if the applicants have any claim with regard to right, title and interest, that would be subject to adjudication by a competent Civil Court/jurisdiction.

13. It is also clarified that nothing contained in this order shall be treated as an opinion of the Court with regard to the respective contentions claims regarding right, title and interest and position of any person over the land in question. Hence, none of the parties shall suffer any prejudice by any observations made in this order when the matter is adjudicated before a competent Court having jurisdiction.

14. The stand taken by the learned counsel for the opposite party nos. 1 and 2 is that before the opposite party nos. 1 and 2 had approach this Court by filing WP(C) 6589 of 2013, the applicant had raised objection as regard to the attachment. If be so, then the competent Court before which the objection was Page No.# 11/11

raised, may be moved to pass appropriate orders, if not already passed.

15. This interlocutory application stands partly allowed to the extent as indicated above.

JUDGE

Comparing Assistant