Page No.# 1/6 vs Mrs Loona Sarma Barua And Ors
2022 Latest Caselaw 4103 Gua

                                                               Page No.# 1/6

GAHC010007112010




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

                              Case No. : Review.Pet./88/2010

          THE DEPUTY COMMISSIONER and ANR,
          KAMRUP M, GUWAHATI.

          2: THE ADDITIONAL DEPUTY COMMISSIONER

           KAMRUP M
           GUWAHATI

          VERSUS

          MRS LOONA SARMA BARUA and ORS.
          W/O DR. P.K. SARMA, R/O NANAK NAGAR, GUWAHATI MEDICAL
          COLLEGE ROAD, BHANGAGARH, GUWAHATI-5, DIST. KAMRUP, ASSAM.

          2:THE OFFICER-IN-CHARGE

           BASISTHA POLICE STATION
           BASISTHA
           GUWAHATI.

          3:MR. ANJALI HAZARIKA

           W/O DWIPEN KALITA
           RUDRAPUR PATH
           BYE LANE CV HANDRA CHOUDHURY PATH
           BHETAPARA CHARIALI
           GUWAHATI

Advocate for the Petitioner : M MAHANTA
Advocate for the Respondent :


           Linked Case : Review.Pet./71/2011

          THE DEPUTY COMMISSIONER and ANR
                                                                            Page No.# 2/6


          KAMRUP M
          GUWAHATI.

          2: THE ADDL. DEPUTY COMMISSIONER

          KAMRUP M
          GUWAHATI.
          VERSUS

          AJOY KR. BARUAH and ORS

          S/O LT. BHOLANATH BARUAH
          R/O SURJYADOI PATH
          BHAGADUTTAPUR
          KAHILIPARA
          GUWAHATI-19
          DIST. KAMRUP
          ASSAM.

          2:THE OFFICER IN CHARGE

          BASISTHA POLICE STATION
          BASISTHA
          GUWAHATI.
          3:MRS. ANJALI HAZARIKA

          W/O DWIPEN KALITA
          RUDRAPUR PATH
          BYE-LANE CV HANDRA CHOUDHURY PATH
          BHETAPARA CHARIALI
          GUWAHATI.
          ------------
          Advocate for : MR.M MAHANTA
          Advocate for : MR. T ROY appearing for AJOY KR. BARUAH and ORS


                                BEFORE
               HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                      ORDER

26.10.2022 Heard Shri DK Sarmah, learned Additional Senior Government Advocate, Assam, who has appeared for the applicants in these review petitions in which review has been sought for in respect of the judgment and order dated 26.05.2009 passed in Page No.# 3/6

WP(C)/4301/2006 and WP(C)/4534/2006.

2. Shri Sarmah, learned State Counsel has drawn the attention of this Court to paragraph 45 of the said judgment and order for which two applications for review has been filed. For ready reference, paragraph 45 of the judgment and order is extracted hereinbelow-

"45. Writ petitions are allowed awarding compensation and cost of Rs.25,000/- (Rupees twenty thousand) to each one of the writ petitioners to be borne by the respondents jointly and severally. Further, the Government of Assam may initiate departmental proceedings against the erring officials involved in the entire episode. The compensation awarded may also be recovered from such of the officials found responsible for illegal eviction of the petitioners and demolition of their houses, which, needless to say shall be in addition to appropriate penalty which may be found awardable pursuant to the departmental proceedings."

3. The learned State Counsel has submitted that since none of the official respondents were made parties by name, it is difficult for the Government to implement that part of the judgment with regard to the liberty to initiate the departmental proceeding and also to recover the amount of compensation directed to be paid to the writ petitioners.

4. Also heard Shri P. Bhattacharyya, learned counsel, who has appeared for the opposite party/ writ petitioner in Review Pet./71/2011. None has appeared for the opposite party / writ petitioner in the other review application.

5. This Court on an earlier occasion i.e. 03.12.2020 had passed the following order:

"Heard Ms. M. Bhattacharya, learned Addl. Sr. Govt. Advocate, Assam for the Review applicants who are the Deputy Commissioner and the Addl. Deputy Page No.# 4/6

Commissioner, Kamrup.

By this application, review of a judgment and order dated 26.05.2009 passed in two writ petitions, namely, WP(C) Nos. 4301/2006 and 4534/2006.

The operative part of the judgment in respect of which review is sought for is extracted herein below:-

"45. Writ petitions are allowed awarding compensation and cost of Rs.25,000/- (Rupees twenty thousand) to each one of the writ petitioners to be borne by the respondents jointly and severally. Further, the Government of Assam may initiate departmental proceedings against the erring officials involved in the entire episode. The compensation awarded may also be recovered from such of the officials found responsible for illegal eviction of the petitioners and demolition of their houses, which, needless to say shall be in addition to appropriate penalty which may be found awardable pursuant to the departmental proceedings.

46. For all the aforesaid reasons, both the writ petitions are allowed directing the respondents, more particularly, the Superintendent of Police, Kamrup, Guwahati and the Officer-in-Charge, Basistha Police Station i.e. the Respondent N o.4 to restore back the possession of the petitioners over the land forthwith. I hasten to add that this judgment and order shall in no way prejudice the rights and contentions of the parties involved in the case in their private law remedy.

Ms. Bhattacharya, the learned State Counsel submits that the purpose of filing the review petition is primarily against imposition of cost of Rs.25,000/- to be paid to each of the writ petitioners and the same to be borne by the respondents jointly and separately.

It is submitted that the incumbents holding the post of the review applicant Page No.# 5/6

at the time of filing of the review were not in the said office when the eviction was carried out which has been termed to be illegal by the aforesaid judgment and order. It is therefore prayed that the direction regarding cost should be reviewed and recalled.

From the array of parties in the two writ petitions, it is seen that none of the official respondents were made party by name and the cost imposed and therefore the present incumbents holding the said post cannot be personally saddled with the said burden as it is the office/post which they are holding have been made responsible. So far as the other directions are concerned to take departmental actions against the erring official, it is needless to clarify that erring person would mean the officials who were holding the post at the time when the illegal eviction was carried out.

In view of the aforesaid observation, Ms. Bhattacharya, learned counsel prays for and is granted a week's time to obtain instructions as to whether the review is still required to be pressed more so when the same is pending since the year 2011.

Ms. Bhattacharya, learned counsel also informs this Court that to her knowledge, no appeal was preferred against the aforesaid judgment and at the same time no case for initiating contempt of Court have been filed."

6. In the aforesaid order dated 03.12.2020, this Court had made it clear that the departmental proceeding has to be initiated only for those Government Servants who were holding the post at the time when the impugned eviction was undertaken. Therefore, in the opinion of this Court, after passing of the said order dated 03.12.2020, by which, time was given to the learned Government Advocate, Assam to seek instructions as to whether the review applications were required to be pressed, there is actually no requirement to seek further review.

7. In any case, this Court has been informed that the primary direction of Page No.# 6/6

payment of cost of Rs.25,000/- (Rupees Twenty Five Thousand) to each of the writ petitioners is yet to be complied with for which there is no ambiguity or review sought for and neither any appeal has been preferred. The subsequent part of the paragraph 45 is only discretionary in nature whereby the Government has been given the liberty to initiate departmental proceeding against the erring persons and also to recover the compensation amount. As such, in the opinion of this Court, there is no requirement of any clarification at all as the discretion has been given to the Government which is to be exercised in a judicious manner. However, to simplify and clarify, such departmental proceeding and the recovery, if decided to be proceeded with have to be against those erring Government Officials, who were at the helm of affairs at the time when the impugned eviction was made. At the same time, this Court is also of the view that the substantial part of the judgment regarding payment of cost of Rs.25,000/- (Rupees Twenty Five Thousand) to each of the writ petitioners are required to be paid.

8. In view of the above, this Court directs listing of these cases after 6(six) weeks in which time, the cost as directed vide the judgment and order dated 26.05.2009 be paid to each of the writ petitioners and as a proof of such payment be placed on record. So far as the other directions regarding initiation of departmental proceeding and recovery are concerned, the clarification given by this Court above would be sufficient to comply of the judgment.

9. List this case on 07.12.2022, by which time, the direction regarding payment of cost is required to be complied with.

JUDGE

Comparing Assistant