Bedabrata Bora vs The State Of Assam And 3 Ors
2025 Latest Caselaw 2696 Gua

Gauhati High Court

Bedabrata Bora vs The State Of Assam And 3 Ors on 12 August, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

                                                                        Page No.# 1/9

GAHC010023632016




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

                                Case No. : WP(C)/5075/2016

            BEDABRATA BORA
            S/O LT. RAMAKANTA BORA R/O VILL- - DHEKERI NARUA P.O.
            KUSUMTULA DIST. SONITPUR, ASSAM.


            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            REVENUE DEPARTMENT, ASSAM, SACHIVALAYA, DISPUR, GUWAHATI -6.

            2:THE DEPUTY COMMISSIONER
             SONITPUR
             DIST. SONITPUR
            ASSAM.

            3:THE ADDITIONAL DEPUTY COMMISSIONER
             SONITPUR
             DIST. SONITPUR
            ASSAM.

            4:THE CIRCLE OFFICER
             SONITPUR REVENUE CIRCLE
             DIST. SONITPUR
            ASSAM

Advocate for the Petitioner   : MR.S BORTHAKUR, MS.P BORAH,MR.K GOGOI

Advocate for the Respondent : , GA, ASSAM,

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BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

For the Petitioner : Shri S Borthakur, Advocate.

     For the Respondents     :      Shri D Nath, Sr. Govt. Advocate.

     Dates of Hearing         :     12.08.2025.

     Date of Judgment        :     12.08.2025.



                           Judgment & Order (Oral)

The approach to this Court by this application filed under Article 226 of the Constitution of India is against a notice dated 19.07.2016 by which, the petitioner has been sought to be evicted from the land which is under his possession.

2. As per the facts projected, the petitioner is a Small Tea Grower and is registered under the Tea Board. It has been stated that 40 bighas of myadi patta land was utilized and he had opened a small tea garden in the year 2004-05. Thereafter, the petitioner had purchased the possessory rights from the earlier occupiers of around 11 bighas of land and had extended the tea garden. It is the specific case of the petitioner that at that time, he was not aware of the fact that the land which he had purchased in the year 2007-08 was Village Grazing Reserve (VGR) land. Be that as it may, the petitioner has relied upon the policy of the Government to settle lands in favour of Small Tea Grower and the contention advanced is that under such a policy Page No.# 3/9

existing, the impugned decision to evict is unreasonable and arbitrary.

3. I have heard Shri S Borthakur, learned counsel for the petitioner. I have also heard Shri D Nath, learned Senior Govt. Advocate, Assam.

4. Shri Borthakur, learned counsel has submitted that at the time of purchase of the 11 bighas of land, the petitioner was not aware of the status of the land that it was VGR land. He has submitted that similar lands are also under the possession of other persons against whom, no action has been taken. He has categorically contended that the petitioner has been targeted and there is lack of bona fide in issuance of the impugned notice dated 19.07.2016. He has relied upon the policy of the Government to allot lands to Small Tea Growers and in this regard, he has placed before this Court a communication dated 23.09.1994 of the Revenue Department whereby, the premiums were fixed for such settlement. He has submitted that though in view of the law laid down by the Hon'ble Supreme Court in respect of VGR land, he may not have an indefeasible right, considering the policy of the Government to give incentive to the Small Tea Growers, it would be the appropriate to the Government to revoke the notice dated 19.07.2016 and take steps for settlement of the land in question by de-reserving the same.

5. Per contra, Shri Nath, learned State Counsel has submitted that there is no dispute that the land in question is VGR land where de-reservation is not permissible. By drawing the attention of this Court to the affidavit-in-opposition filed on 22.05.2025, the learned State Counsel has submitted that steps have been taken to clear the VGR land and in this regard, he has drawn the attention of this Court to the averments made in paragraph 6 thereof. The learned State Counsel has relied upon the landmark judgment of the Hon'ble Supreme Court in the case of Jagpal Singh & Ors. Vs. State of Punjab & Ors. , reported in (2011) 11 SCC 396 and the Page No.# 4/9

guidelines/observations made in paragraph 23 have been pressed into service.

6. With regard to the issue as to whether there would be a requirement of notice under Regulation 18(2) of the Assam Land and Revenue Regulation, the State Counsel has submitted that there would be no such requirement which has been clarified by the Division Bench in the case of Salak Uddin Vs. State of Assam & Ors. , reported in 2024 (4) GLT 859.

7. On the aspect that certain persons are still occupying VGR land and the notice has been issued only to the petitioner, the learned State Counsel has submitted that pleadings in this regard are vague in the writ petition and in any case, there is no concept of negative equality under Article 14 of the Constitution of India. In this regard, he has placed reliance upon a decision of the Hon'ble Supreme Court in the case of Jyostnamayee Mishra Vs. The State of Odisha, reported in 2025 SCC OnLine SC 117. The relevant paragraph is extracted hereinbelow:

"31. ... Suffice to add, this Court cannot put a stamp on the illegalities committed by the department while perpetuating the same. A litigant coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules. It is a settled proposition of law that Article 14 does not envisage negative equality. Reference for the purpose can be made to a judgment of this Court in R. Muthukumar & others v. The Chairman and Managing Director TANGEDCO & others. Relevant para thereof is extracted below :

'28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj v. Special Land Acquisition Officer, this Page No.# 5/9

court ruled that:

'8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated'."

8. He has assured that the present notice is only pertaining to the VGR land and the patta land of the petitioner is not to be vacated. In this regard, he has drawn the attention of this Court to the averments made in paragraph 3 of the affidavit-in- opposition wherein, the description of the land has been given. Shri Nath, learned State Counsel accordingly submits that the writ petition is liable to be dismissed and the interim order be vacated.

9. Shri Borthakur, learned counsel for the petitioner has submitted that the aspect of discrimination would be apparent as he has given the details of the persons who are occupying VGR land and no action has been taken against them and in this regard, he has drawn the attention of this Court to the affidavit-in-reply filed on 17.07.2025. He has submitted that the land in question has been utilized only for cultivation of tea and he being a Small Tea Grower should be given the benefit of the policy which was advanced by the State to give incentive.

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10. The rival submissions have been duly considered and the materials on record have been carefully examined.

11. From the pleadings exchanged and the arguments advanced, there is no manner of doubt that the land in question is VGR land. The learned counsel for the petitioner has stated that it was the possessory right of such land which was purchased by the petitioner in the year 2007-08 and at that time, he was not aware of the status of the land. Be that as it may, the status of the land being VGR is not disputed at all.

12. The stand of the State Government is clearly stated in the affidavit-in-opposition filed on 22.05.2025 and the relevant averments are extracted hereinbelow:

"That it is respectfully submitted that in the instant case steps was taken to clear the encroachment of VGR land which is under the occupation of the petitioner and doing so the provisions of the Assam Land Revenue Regulation, 1886 as well as the policy of the Government was taken into consideration. It is respectfully stated that the law laid down by the Hon'ble Supreme Court in respect of V.G.R.s and P.G.R.s provides that village common lands should be kept encroachment free and not be settled with anyone except for community purposes in exceptional cases and in no case the area under V.G.R.s and P.G.R.s be reduced to less than 5% of the total village land area."

13. The law laid down by the Hon'ble Supreme Court with regard to VGR land is clear. In the case of Jagpal Singh & Ors. (supra), the Hon'ble Supreme Court has made the following observations:

"23. Before parting with this case we give directions to all the State Page No.# 7/9

Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land ."

14. This Court also finds force in the contention of the learned State Counsel that there would be no requirement of notice under Regulation 18(2) of the Assam Land and Revenue Regulation in view of the law settled by the Hon'ble Division Bench in the case of Salak Uddin (supra). In fact, Shri Borthakur, learned counsel for the petitioner has fairly conceded to this aspect of requirement or otherwise, of such notice.

15. As regards the plea of discrimination, it clearly appears that such plea is based on negative equality as possessing VGR land is impermissible in law. It may be stated that the Hon'ble Supreme Court in the aforesaid case of Jagpal Singh & Ors. (supra) has laid down strict conditions so as to ensure that all VGR and community lands are made free from encroachment. This Court is also of the opinion that in view of such clear direction, even the policy to give incentive to Small Tea Growers would not come to the aid of the petitioner. Be that as it may, the communication dated 23.09.1994 Page No.# 8/9

issued by the Revenue Department which has been placed on record has been perused and the said communication is only with regard to the allotment of land to three categories, namely:

i) Indigenous Youths coming from the families below the poverty line;

ii) Other indigenous educated unemployed youths;

iii) Co-operative of indigenous unemployed youths.

The said communication, however does not say anything de-reservation of VGR land and in any case, has to be read in conjunction with the law laid down by the Hon'ble Supreme Court that such land cannot be VGR land.

16. In the conspectus of the aforesaid discussion, this Court is of the opinion that there is no scope for granting any relief to the petitioner.

17. The writ petition is accordingly dismissed and the interim order is vacated.

18. At this stage, the learned counsel for the petitioner submits that some time may be granted to vacate the land as the same is under tea cultivation.

19. The aforesaid prayer is, however strenuously objected to by the learned State Counsel who has submitted that in terms of the interim order, the petitioner has already availed the benefits for the last 9 years.

20. Be that as it may, by balancing the equities, it is directed that a period of 45 days from today be granted to the petitioner to vacate the land in question. It is, however made clear that after expiry of the aforesaid period, the respondent Page No.# 9/9

authorities would have all the liberty to go ahead with the eviction process. It is also observed that such eviction process is not necessarily to be confined to the petitioner but for clearing all VGR lands.

JUDGE

Comparing Assistant