Gauhati High Court
Md. Isahak Ansari @ Isak Anasari vs The State Of Assam And 5 Ors on 19 August, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010053302023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1554/2023
MD. ISAHAK ANSARI @ ISAK ANASARI
S/O- LATE SUKHI ANSARI, R/O- MANIRAM DEWAN ROAD, KACHLU
KHOWA, NAGAON, PS.. AND DIST. NAGAON, ASSAM, PIN- 782003.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM, URBAN DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI,
ASSAM
2:THE DIRECTOR OF MUNICIPAL ADMINISTRATION
DISPUR
GUWAHATI
ASSAM
3:THE NAGAON MUNICIPAL BOARD
NAGAON
DIST. NAGAON
ASSAM
4:THE CHAIRMAN
THE NAGAON MUNICIPAL BOARD
NAGAON
DIST. NAGAON
ASSAM
5:THE EXECUTIVE OFFICER
THE NAGAON MUNICIPAL BOARD
NAGAON
DIST. NAGAON
ASSAM
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6:THE DEPUTY COMMISSIONER
NAGAON
DIST. NAGAON
ASSA
Advocate for the Petitioner : MR. P K ROYCHOUDHURY, MR N BRAHMA,MR G
BHARADWAJ,MR. A C SARMA,MD. A KHAN
Advocate for the Respondent : GA, ASSAM, MR. S C KHOUND (r-3,4,5),MR. N M DUTTA (r-
3,4,5)
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
For the Petitioner : Shri AC Sarma, Advocate &
Shri S Sutradhar, Advocate.
For the Respondents : Shri N Goswami, GA, Assam &
Shri SC Khound, Advocate,
Respondent Nos. 3, 4 & 5.
Date of Hearing : 19.08.2025.
Date of Judgment : 19.08.2025.
Judgment & Order
The instant writ petition has been filed with the following reliefs:
"In the premises aforesaid, your humble petitioner most respectfully
prays that this Hon'ble court may be pleased to admit this writ petition,
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call for the records and issue a Rule calling upon the respondents to
show cause as to why
(i) a writ in the nature of Certiorari should not be issued for
interfering with and quashing he eviction notice dated 22/12/2022
issued by the respondent no. 3 /or
(ii) A writ in the nature of Mandamus should not be issued thereby
commanding the respondent no.3 to rescind, recall and/or
forbear from giving effect of the Impugned eviction notice dated
22/12/2022 issued by the respondent no.5 and/or
(iii) A writ in the nature of Mandamus directing the Respondent No
to restore the possession of the aforesaid land to the Petitioner
Ante-Possession.
(iv) And on showing cause or causes and upon hearing the parties
and perusal of records this Hon'ble court would be pleased to
make the Rule absolute and/ or to pass such further order or
orders as this Hon'ble Court may deem fit and proper for
dispensation of proper justice to the petitioner."
2. As per the facts projected, the petitioner claims to be in possession of a plot of
land measuring 15 lechas covered by Dag No. 811 of town Kachalukhowa Kismat,
Mouza-Town, District-Nagaon, Assam and is earning his livelihood by carrying on
business since the year 1979. It is also averred that the respondent no. 3, namely,
Nagaon Municipal Board had issued a Trade License allowing the petitioner to carry on
his business and the Trade License was renewed from time to time. The Municipal Tax
was also paid. The petitioner also claims to have made an application before the Addl.
Deputy Commissioner on 18.05.2013 for recording his name in the Touzi Bahira
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Register by contending that he is in possession of the land since a long period of time
and on the said application, a report was submitted by the Circle Officer on
04.07.2013. It is contended that the land in question is Government land where the
petitioner is residing. The petitioner had thereafter made another application on
22.06.2022 with a prayer to make settlement of the land in his name and some
inquiries were also made in this regard. It is the case of the petitioner that when there
was a move to settle the land in his favour, the respondent no. 3, without service of
notice had demolished the structures of the petitioner on 12.02.2023. The petitioner
has also contended that though there was a notice dated 23.12.2022 issued by the
respondent no. 3, the dag number was written as 8011 whereas the petitioner was in
possession of a plot of land covered by Dag No. 811. The aforesaid action of evicting
the petitioner is the subject matter of challenge and one of the prayers is to restore
possession which has been extracted hereinabove.
3. I have heard Shri AC Sarma, learned Senior Counsel assisted by Shri S
Sutradhar, learned counsel for the petitioner. I have also heard Shri N Goswami,
learned State Counsel, Assam as well as Shri SC Khound, learned counsel for the
respondent nos. 3, 4 and 5, namely, Municipal Board and its Officers.
4. Shri Sarma, learned Senior Counsel has formulated his arguments in the
following manner:
i) The land in question is not a municipal land and therefore, the
respondent no. 3 did not have any authority to carry out the eviction
process;
ii) The land is Government khas land where application for settlement was
pending and if any action was to be taken, it was to be done by the State
and not by the Municipality;
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iii) No notice was served upon the petitioner before the eviction process
and therefore, there is gross violation of the principles of natural justice;
iv) Even if it assumed that notice was issued, the contents of the said
notice were not pertaining to the land in question and therefore, could
not have been treated a notice for eviction.
5. The learned Senior Counsel for the petitioner has submitted that as the entire
action was done without any authority of law and in gross violation of the principles of
natural justice, the same is required to be interfered with and possession of the land
in question is required to be restored.
6. Per contra, Shri Kound, learned counsel for the contesting respondent nos. 3, 4
and 5 has strenuously opposed the writ petition. By drawing the attention of this Court
to the affidavit-in-opposition filed on 11.11.2024, the learned counsel has submitted
that the basic premises on which the writ petition have been structured are factually
incorrect. He has submitted that the land in question is Municipal land over which the
respondent no. 3 has full authority. He has drawn the attention of this Court to the
averments made in paragraph 10 of the said affidavit-in-opposition read with the
enclosures which include a joint report by the Junior Engineer and the Lat Mondal and
also the Chitha in which the name of the Municipality is recorded. It is submitted that
though the petitioner has stated that he is doing business since the year 1979 till the
date of eviction, no documents were enclosed to the writ petition. He submits that
though there is a Trade License enclosed, the same is of the year 1985 and the fee
receipt would show that the fee up-to 1993-94 has been paid and there is no
document to show that either the Trade License was renewed or the fee was paid. He
accordingly denies that the petitioner was in continuous possession. The learned
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counsel for the contesting respondents has submitted that the Trade License was
issued to the petitioner to carry on business from his own plot which is a different plot
and not from the land in question and in this regard, he has drawn the attention of
this Court to the averments made in paragraph 6 of the affidavit-in-opposition. He has
also submitted that there is no residential house over the aforesaid plot of land and an
incorrect statement has been made by the petitioner. By drawing the attention of this
Court to the averments made by the petitioner regarding submission of application for
grant of patta where he has claimed to be landless, the learned counsel has submitted
that such statements were also incorrect.
7. Drawing an analogy to the Assam Land and Revenue Regulation and the Rules
framed thereunder, the learned counsel for the respondents has referred to Rules 16
and 18 and has contended that the procedure adopted by the Municipality has been
done in a fair manner wherein appropriate notice was given to the petitioner. He has
drawn the attention of this Court to the averments made in the affidavit-in-opposition
wherein, it has been contended that on two occasions, notices were attempted to be
served upon the petitioner which were refused and in this regard, there is a Process
Server's report. Ultimately, on 10.01.2023, the copy of the notice was affixed at a
conspicuous place and even at the premises of the petitioner. He has submitted that if
the petitioner had any good reasons, he should have submitted his show cause reply
as the eviction was done after almost a month thereafter on 07.02.2023. By drawing
the attention of this Court to the Assam Municipality Act, 1956, the learned counsel for
the contesting respondents has referred to Section 159 which is on the aspect of
removal of obstructions or encroachments in or on public road. As regards, the aspect
of issuance of notice and the procedure prescribed, he has referred to Section 307 of
the aforesaid Act and has submitted that due process has been followed. On the
aspect of the Dag No. 811, he has submitted that it was by inadvertence that the Dag
number was incorrectly written as 8011 instead of 811. He, however hastens to add
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that the same did not cause any prejudice as the notices were affixed on the premises
which was sought to be evicted and in any case, the aforesaid aspect was never raised
by the petitioner before the authorities during the time allotted to him. He submits
that there is no right or any nature of the petitioner to claim either possession or
restoration thereof. He has relied upon a judgment of this Court in the case of Zubbar
Ali & Ors. Vs. State of Assam & Ors. , reported in (2025) 3 GLT 354 and has
submitted that length of possession will not confer any right.
8. Shri Goswami, learned State Counsel, Assam has endorsed the submissions of
the respondent nos. 3, 4 and 5 and has prayed for dismissal of the writ petition.
9. Shri Sarma, learned Senior Counsel for the petitioner has submitted that Rule 18
of the Rules framed under the Assam Land and Revenue Regulation will not be
applicable in the instant case. He has reiterated that notices were never issued before
the impugned action. As regards the photographs which have been enclosed to the
affidavit-in-opposition, he has submitted that such photographs cannot be treated as
admissible evidence. He has also submitted that there is no averment giving the
details as to the procedure, including the names of the persons who had gone there to
affix the notices and in whose presence, such notices were affixed. He submits that
mere annexation of the photographs with the affidavit-in-opposition will not be a
conclusive evidence that notices were actually served.
10. The rival submissions have been duly considered and the materials on record,
including the pleadings have been carefully examined.
11. The first contention is that the land in question is not municipal land and
therefore, the authority of the respondent no. 3 has been questioned. To consider the
aforesaid submission, this Court has gone through the pleadings, including the
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annexures of the affidavit-in-opposition filed by the respondent nos. 3, 4 and 5. Apart
from the denial of the averment that the Nagaon Municipal Board was not allotted the
aforesaid land, a clear statement has been made in paragraph 10 of the said affidavit-
in-opposition which is extracted hereinbelow:
"10. That as regards the statements made in Para No. 8 of the Petition, the
deponent states that it is not correct that after his eviction the Petitioner
received the eviction Notice dated 23/12/2022.
The deponent states that as per official record, the Executive Officer
issued a letter vide No. Na. Pau. Sa. 10- 1(Part)/2022-23/652(Ka), dated
05/09/2022 to the Circle Officer, Nagapn Sadar Revenue Circle, requesting him
to depute the concern Mandal to identify the land of Dag No. 811 and then
after field verification of the said land by the Mandal and the Junior Engineer of
the Board, both of them jointly submitted the report stating that the said land is
encroached by one Ishak Ansari. Thereafter the Notice vide No. Na.Pau. Sa. 10-
77/2022-23/1055 dated 23/12/2022 was issued to Ishak Ansari, the Petitioner,
asking him to vacate the said land immediately. However, in the said Notice,
inadvertently and through oversight, the Dag No. has been written as 8011
instead of '811, the said error is a typographical error and printing mistake only.
Yet, there cannot be any difficulty for the Petitioner to understand that the said
lard means the land of Dag No. 811 as he encroached and possessed the land
of the Dag No. 811.
The process server, who carry the said Notice for causing service on the
Petitioner, submitted his report on 25/12/2022 stating inter alia that on
23/12/2022 and 24/12/2022 he went to serve the Notice on Ishak Ansari, but
on both the days he refused to accept the Notice."
12. This Court has also noticed that a joint inspection was made and a report was
submitted by the Junior Engineer and the Lat Mandal in which, the land has been
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described as Municipality land. The aforesaid contention is also fortified by the Chitha
which has been enclosed to the affidavit-in-opposition and so far as the land in
question is concerned, the name of the Municipality is recorded. The aforesaid
contention and averments have been dealt with by the petitioner in the rejoinder
affidavit filed on 23.05.2025. A perusal of the same would, however not lead this
Court to a conclusion that there has been any specific denial. As regards the
contention that no notice was served, the materials on record would show that the
notices were attempted to be served on two occasions which the petitioner had
refused to accept and therefore, notices were affixed in a conspicuous place in the
locality as well as in the premises. In support of the aforesaid plea, the relevant
photographs have been enclosed.
13. Shri Sarma, learned Senior Counsel for the petitioner may be correct in
contending that such photographs are not conclusive evidence, the same can,
however be treated as a prima facie evidence to show that the procedure laid down in
Section 307 of the aforesaid Act was followed. This Court has also noticed that there is
no denial of the aforesaid averments made in the affidavit-in-opposition by the
petitioner in his rejoinder affidavit. As regards the discrepancy in the Dag number, it is
apparent that the land in question is covered by Dag No. 811 and the eviction notice
had mentioned the Dag number as 8011. However, this Court is inclined to accept the
submissions advanced by Shri Khound, learned counsel for the contesting respondents
that when the notices were affixed in the premises and a period of almost one month
had elapsed since affixation of such notices till the date of eviction when the petitioner
did not make any attempt to reply, the same cannot be said to have caused any
prejudice in defending his case. In the case of Zubbar Ali (supra), relied upon on
behalf of the contesting respondents, there is reference to the landmark of case of
State of Assam Vs. Rakha Kanoo , reported in (1996) 8 SCC 692 wherein, it has been
laid down that payment of Touzi Bahira cannot vest any right as the same is to be
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treated as a penalty for use of land.
14. In view of the aforesaid discussion, this Court is of the opinion that the
petitioner is not entitled to any relief and accordingly, the writ petition is dismissed.
JUDGE
Comparing Assistant
