Md. Salak Uddin vs The State Of Assam And 2 Ors
2023 Latest Caselaw 2623 Gua

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GAHC010026312022




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

                                 Case No. : WP(C)/1057/2022

            MD. SALAK UDDIN
            S/O. ASHID MIYA, R/O. BISHNUPALLY, WARD NO.17, P.O. AND P.S. HOJAI,
            DIST. HOJAI, ASSAM, PIN-782435.



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, REVENUE
            DEPTT., DISPUR, GUWAHATI-06.

            2:THE DEPUTY COMMISSIONER

             NAGAON
             DIST. NAGAON
             ASSAM.

            3:THE SUB-DIVISIONAL OFFICER (CIVIL)

             SANKARDEV NAGAR
             HOJAI
             DIST. NAGAON
             ASSAM

Advocate for the Petitioner   : MR. P K ROYCHOUDHURY

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                    HONOURABLE MR. JUSTICE SUMAN SHYAM
                 HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
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                                         ORDER

Date : 20-06-2023 Suman Shyam, J

Heard Mr. P.K.R. Choudhury, learned counsel for the writ petitioner. Also heard Mr.

R.C. Borpujari, learned standing counsel, Revenue Department, Assam appearing for the

respondents.

This writ petition has been listed before this specially constituted Division Bench on

the strength of the order dated 14-06-2023 of the Hon'ble Chief Justice, issued on the

administrative side. The central issue involved in this writ petition is pertaining to the

applicability of Rule 18(2) of the Settlement Rules. While interpreting Rule 18(2), the

learned Single Judges of this Court have expressed the opinion that there is no

requirement for issuance of notice under Rule 18(2) before evicting encroachers of Govt.

khas land. However, in the judgment and order passed by another Single Bench in the

case of Bimal Ch. Das Vs. State of Assam reported in 2018 (1) GLR 13 a divergent

view has been expressed whereby, it was observed that notice under Rule 18(2) of the

Settlement Rules is mandatory even for eviction of encroachers over Govt. khas land.

In order to settle the law, in the backdrop of such divergent views expressed by the

coordinate Benchs of this Court, this matter has been posted today before this Division

Bench. However, during the course of hearing, the learned counsel for the parties have

invited the attention of this Court to the decision rendered in the case of Taher Ali Vs.

State of Assam & Ors. (W.P.(C) No. 6158/2019) authored by one of us (S. Shyam,

J) wherein, opinion has been expressed on the core issue thereby holding that notice Page No.# 3/3

under Rule 18(2) of the Settlement Rules would not be necessary before evicting

encroachers over the Govt. khas land. In the decision of Taher Ali (Supra) it was,

however, observed that rules of audi alteram partem has to be followed by the State

before carrying out the eviction drive. Since a clear opinion has been expressed by one of

us in the decision of Taher Ali (Supra) governing the key issue arising for decision in

the writ petition, we are of the view that it would not be proper for this Bench to hear the

matter.

As such, Registry to place this writ petition before the Hon'ble Chief Justice for

constituting a Bench without one of us (S. Shyam, J).

                          JUDGE                       JUDGE
GS




Comparing Assistant