Page No.# 1/9 vs The State Of Assam And 3 Ors
2023 Latest Caselaw 2309 Gua

                                                                Page No.# 1/9

GAHC010095422023




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

                         Case No. : WP(C)/2440/2023

         PURBANCHAL CEMENTS LTD AND 3 ORS
         HAVING ITS OFFICE AND PRINCIPAL PLACE OF BUSINESS AT MEGA
         PLAZA, 2ND FLOOR, BASISTHA CHARIALI, BELTOLA, GUWAHATI-29,
         REPRESENTED BY ITS DIRECTOR SHRI BADAL RABHA WHO IS ALSO THE
         AUTHORIZED SIGNATORY OF THE PETITIONER NO. 1.

         2: BADAL RABHA
          S/O- SHRI CHANDRA DHAR RABHA

         R/O- CHHAYGAON
         KAMRUP
         ASSAM- 781124 AND DIRECTOR OF THE PETITIONER NO. 1.
         AUTHORIZED SIGNATORY OF THE PETITIONER NO. 1.

         3: NORTHEAST INDUSTRIAL POWER PRIVATE LIMITED
          HAVING ITS REGISTERED OFFICE AT JAI KAMAKHYA MARKET

         N.H. 37
         BELTOLA
         GUWAHATI-22.
         REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI RUKMAL BORO.

         4: RUKMAL BORO
          S/O LATE NATHRAM BORO

         R/O HENGRABARI
         DISPUR
         GUWAHATI-6.
         AUTHORIZED SIGNATORY OF PETITIONER NO. 3

         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY,
                                                                    Page No.# 2/9

            DEPARTMENT OF REVENUE,
            GOVERNMENT OF ASSAM,
            DISPUR, GUWAHATI-06.

            2:THE DEPUTY COMMISSIONER
             KAMRUP(M)
             HENGRABARI
             GUWAHATI-6.

            3:THE ADDITIONAL DEPUTY COMMISSIONER
             KAMRUP(M)
             HENGRABARI
             GUWAHATI-6.

            4:THE CIRCLE OFFICER
             SONAPUR REVENUE CIRCLE
             SONAPUR
             KAMRUP(M).

            5:SRI MONSING RONGPI
            AGED-42 YEARS
            S/O- LATE MOKSU RONGPI
            R/O VILLAGE- TAMLIKUCHI
            P.O- TAMLIKUCHI
            P.S- SONAPUR
            DISTRICT- KAMRUP (METRO)
            ASSAM
             PIN-79310

Advocate for the Petitioner   : MR. S P ROY

Advocate for the Respondent : SC, REVENUE




             Linked Case : I.A.(Civil)/1278/2023

            PURBANCHAL CEMENTS LTD AND 3 ORS
            HAVING ITS OFFICE AND PRINCIPAL PLACE OF BUSINESS AT MEGA PLAZA
            2ND FLOOR
            BASISTHA CHARIALI
            BELTOLA
            GUWAHATI-29

            REPRESENTED BY ITS DIRECTOR SHRI BADAL RABHA WHO IS ALSO THE
                                                       Page No.# 3/9

AUTHORIZED SIGNATORY OF THE PETITIONER NO. 1.

2: BADAL RABHA
S/O- SHRI CHANDRA DHAR RABHA

R/O- CHHAYGAON
KAMRUP
ASSAM- 781124 AND DIRECTOR OF THE PETITIONER NO. 1.
AUTHORIZED SIGNATORY OF THE PETITIONER NO. 1.

3: NORTHEAST INDUSTRIAL POWER PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT JAI KAMAKHYA MARKET

N.H. 37
BELTOLA
GUWAHATI-22.
REPRESENTED BY ITS AUTHORIZED SIGNATORY SHRI RUKMAL BORO.

4: RUKMAL BORO
S/O LATE NATHRAM BORO

R/O HENGRABARI
DISPUR
GUWAHATI-6.
AUTHORIZED SIGNATORY OF PETITIONER NO. 3.
VERSUS

THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY
DEPARTMENT OF REVENUE
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-06.

2:THE DEPUTY COMMISSIONER
 KAMRUP(M)
HENGRABARI
 GUWAHATI-6.
 3:THE ADDITIONAL DEPUTY COMMISSIONER
 KAMRUP(M)
HENGRABARI
 GUWAHATI-6.
 4:THE CIRCLE OFFICER
 SONAPUR REVENUE CIRCLE
SONAPUR
 KAMRUP(M).
 ------------
Advocate for : MR. K N CHOUDHURY
                                                                       Page No.# 4/9

           Advocate for : SC
           REVENUE appearing for THE STATE OF ASSAM AND 3 ORS



                                 BEFORE
                 HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                       ORDER

Date : 02.06.2023

Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Mr. R.J. Das, learned counsel for the petitioners. Also heard Ms. G. Hazarika, learned standing counsel for the respondent no.1, Mr. M Chetia, learned Govt. Advocate appearing for respondent nos.2 to 4 and Mr. N.N.B. Choudhury, learned counsel for the respondent no.5.

2. At the outset, the learned Govt. Advocate has submitted that he needs some more time to obtain parawise comments and to file an affidavit-in- opposition in the matter.

3. The matter is listed pursuant to order dated 25.05.2023, wherein this Court was inclined to provide that if on the next date the matter cannot be heard, the prayer for interim relief shall be considered. The matter was listed on 31.05.2023 and could not be taken up and therefore, listed today. Accordingly, the prayer for interim relief is taken up.

4. The learned senior counsel for the petitioners has submitted that as the petitioner no.1 has a running industry over the schedule-A and schedule-B land, at this stage his prayer is to direct the Circle Officer, Sonapur Revenue Circle (respondent no.4) to carry out a demarcation of the Govt. land, if any, encroached by the petitioners and he submits that in so far as the other private Page No.# 5/9

land is concerned which is not Govt. land, there may be no impediment for the petitioners to resume the industry.

5. Per contra, the learned counsel for the respondent no.5 has referred to various documents appended to the writ petition as well as the affidavit-in- opposition filed by respondent no.5 and it is projected that the petitioners have usurped the land of the respondent no.5 by using forged and fabricated documents. It is submitted that the so-called sale deeds purportedly executed by the respondent no.5, were not found in existence in the office of the Sub- Registry. Hence, it is submitted that as the writ petition is based on forged and fabricated documents, the petition deserves to be dismissed.

6. By referring to the decision of the Division Bench of this Court in the case of High Court, S/o Jahan & 25 Ors. v. Assam Board of Revenue & Ors., (1988) 2 GLR 9, it is submitted that there is a statutory prohibition in the transfer/alienation of land in the tribal belt by tribal to non-tribal and that any transaction to the contrary is void. In this regard, reference is made to the provisions of section 162 of the Assam Land and Revenue Regulation, 1886 ('1886 Regulation' for short). By referring to the judgment and order dated 06.09.2022, passed by this Court in WP(C) 4761/2021, it is submitted that as per directions contained in paragraph 10 thereof, there was a requirement of a Circle Officer to make an inquiry about the documents of the petitioner in respect of the land on which the industry was set up. It is submitted that despite the said order, the petitioner has not produced any document of title in respect of the land occupied by them. By referring to the order dated 03.03.2023, passed by this Court in WP(C) 1156/2023, it is submitted that for eviction of the petitioner industry from a Govt. land, no notice is required to be issued under Rule 18(1) and 18(2) of the rules framed under the 1886 Page No.# 6/9

Regulation.

7. The prayer made in this writ petition is as follows:

"It is, therefore, prayed that Your Lordships would be graciously pleased to admit this application, call for the records, issue a Rule calling upon the Respondents as to why the eviction drive carried out by the Respondent under the supervision of the Circle Officer, Sonapur Revenue Circle should not be adjudicated as null and void and as to why the Respondents should not be directed to remove the bamboo fencing put at the entry point of the Schedule-B land and as to why the Respondents should not be prohibited from interfering in running the Cement factory of the Petitioner No.1 standing over 'A' Schedule land and from storing the raw materials for manufacturing cement over the 'B' Schedule land in any manner.

AND Upon the perusal of the cause or causes shown if any Your Lordship would be pleased to make the Rule absolute.

AND Pending disposal of the Rule, Your Lordships would be pleased to stay the further eviction of the Petitioners from the 'A' and 'B' Schedules land along with its structures standing thereon in any manner. AND/OR The Circle Officer, Sonapur Revenue Circle may be directed to remove bamboo fencing from B- Schedule land and prohibited from interfering in running the

And/Or Pass any other appropriate order(s) as Your Lordships may deem fit and proper under the circumstance of the case. facts and AND For this Act of kindness, the Petitioners shall pray for ever."

8. Based on the prayer made in this writ petition, the Court is of the considered opinion that the issue raised by the petitioners is limited to the extent that the respondents should be prohibited from interfering in the running of the cement factory of the petitioner no.1, which is standing over the plot of Page No.# 7/9

land described in schedule-A and schedule-B land appended to the writ petition. Therefore, in a writ petition where the prayer is to the extent of permitting the petitioner no.1 to operate from schedule-A and schedule-B land, the Court would only have to examine as to whether in the garb of entering into the plot of land described in schedule-A and schedule-B land, the petitioners could resume their operations on land which is not a government land. The Court is conscious of the fact that the allegation in this writ petition is to the extent that without issuing any notice, the Circle Officer along with police force had entered into the factory premises of the petitioners and evicted the petitioners from the Govt. land by demolishing structures, which was standing over the Govt. land.

9. Insofar as the claim of the respondent no.5 is concerned to the effect that the land of the respondent no.5 was illegally usurped by the petitioners to set up their factory, there can be two inferences which can be drawn up. Firstly that the petitioners were evicted from the tribal land protected under Chapter X of the Assam Land and Revenue Regulation, 1886 by the Circle Officer in the guise of removing them from the Govt. land. The second possibility is that instead of evicting the petitioners from the tribal land, the Circle Officer had used the power under section Rule 18(1) and 18(2) of the 1886 Regulation to evict the petitioners from purely Govt. land. Under both circumstances, if the respondent no.5 has any claim of ownership of the land allegedly belonging to him, it would not be open to the respondent no.5 to agitate the said claim in a writ petition filed by the petitioners as if he was making a counter-claim. In the considered opinion of the Court, any claim which the respondent no.5 might have against the petitioners has to be adjudicated in an appropriate forum. It is not the case of the Circle Officer that he was evicting the petitioners from the land under the tribal belt. If that was the case, then the Page No.# 8/9

Circle Officer would have given a notice to the petitioners as envisaged in law and the provisions of Rule 18(1) and 18(2) of the 1886 Regulation would not be available to the Circle Officer.

10. For the purpose of interim order, the Court is disinclined to take cognizance of the stand taken by the respondent no.5 that the land documents produced by the petitioners were in fact forged for two reasons. Firstly, no competent Court having jurisdiction has declared the documents to be forged. Secondly, without a declaration being available as to the forgery of the said documents, this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India would not enter into a disputed question of fact. Therefore, as indicated earlier, the respondent no.5 would have to agitate his grievance, if there be any, before the competent forum and the pendency of this writ petition shall not preclude the respondent no.5 to do so.

11. Insofar as the prayer for interim relief is concerned, as the case of the petitioner is that he was evicted from the purported Govt. land without the issuance of notice, the Court is inclined to provide that the authorized representative of the petitioners shall appear before the Circle Officer, Sonapur Revenue Circle with a representation to have the demarcation carried out in respect of the Govt. land allegedly occupied by the petitioner no.1 for their cement factory and the said demarcation shall be carried out within a period of 21 (twenty one) days from the date of receipt of a certified copy of this order. The period of 21 days is provided on taking into consideration the claim made by the petitioners that the factory land is over 130 bighas of land. Further orders on the interim prayer shall be passed on the next date on receipt of the report from the Circle Officer on demarcation.

12. The petitioners shall produce a certified copy of this order before the Page No.# 9/9

Circle Officer, Sonapur Revenue Circle along with their representation as indicated above.

13. List on 23.06.2023.

14. This order shall not have the overriding effect and/or shall not dilute the order dated 06.09.2022, passed in WP(C) 4761/2021, and the judgment and order dated 03.03.2023, passed in WP(C) 1156/2023.

JUDGE

Comparing Assistant