Gauhati High Court
WA/126/2023 on 14 February, 2025
Page No.# 1/13
GAHC010080042023
2025:GAU-AS:1501-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/126/2023
KHIRESWARI SAIKIA
D/O- LATE PURNIMA SAIKIA
R/O- USHA NAGAR, BORBARI,
NEAR DURGA MANDIR, P.O. HENGRABARI,
KAMRUP METRO, P.S. DISPUR, 781036, ASSAM.
.....Appellant
-VERSUS-
1.THE STATE OF ASSAM,
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
REVENUE (SETTLEMENT) DEPTT., DISPUR, GHY- 781006 (ASSAM).
2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY,
REP. BY ITS CHAIRMAN,
BHANGAGARH GUWAHATI- 781006 (ASSAM).
3:THE GUWAHATI MUNICIPAL CORPORATION,
REP. BY ITS COMMISSIONER, GUWAHATI (ASSAM).
4:THE CIRCLE OFFICER,
DISPUR REVENUE CIRCLE DISPUR,
GUWAHATI- 781006, ASSAM.
.....Respondents
Linked Case : WA/317/2023
1.BICHITRA KR. BORAH,
SON OF LATE SARAT CH. BORAH,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
2: BABUL BORO,
SON OF LATE PANIRAM BORO,
Page No.# 2/13
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
3: NIRMALI GOGOI,
DAUGHTER OF BHABANI GOGOI,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
4: GAUTOM GOGOI,
SON OF BHABEN CH. GOGOI,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
5: JOGENDRA BARMA,
SON OF LATE NINAKU BARMA,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
6: SUDIP DAS,
SON OF SURESH CH. DAS,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
7: NISHIMA KALITA,
WIFE OF SARAT CH. KALITA,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
8: BASANTA SARMA,
SON OF RAJAT CH. SARMA,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
9: UTTARA CHOUDHURY BEZBARUAH,
WIFE OF SAILEN BEZBARUAH,
RESIDENT OF - NABA MILANPUR PUB SHIV NAGAR PATH,
VIP ROAD, MAGZIM, P.O.- UDAYAN VIHAR,
DIST.- KAMRUP(M), ASSAM.
.....Appellants
Page No.# 3/13
-VERSUS-
1.THE STATE OF ASSAM,
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, DEPARTMENT OF REVENUE AND DISASTER MANAGEMENT,
DISPUR, GUWAHATI- 781006, ASSAM.
2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA),
REPRESENTED BY ITS CHAIRMAN,
3RD FLOOR STATE-FED BUILDING,
GMCH ROAD, BHANGAGARH, GUWAHATI, ASSAM- 781005.
3:THE DEPUTY COMMISSIONER, KAMRUP(M), GUWAHATI- 781001.
4:THE CIRCLE OFFICER, DISPUR REVENUE CIRCLE, GUWAHATI.
.....Respondents
Linked Case : WA/234/2023
1.ANIL KALITA,
S/O- KALI RAM KALITA,
R/O- HOUSE NO-20, USHA NAGAR, BORBARI, VIP ROAD,
P.O- BELTOLA, P.S- DISPUR, GUWAHATI-36, KAMRUP (M), ASSAM.
2: HIRAN NATH TALUKDAR,
S/O- NRIPEN TALUKDAR,
R/O- USHA NAGAR, BORBARI, VIP ROAD,
P.O- BELTOLA, P.S- DISPUR, GUWAHATI-36, KAMRUP (M), ASSAM.
3: DIPJYOTI BARMAN,
S/O- BIREN BARMAN,
R/O- USHA NAGAR, BORBARI NEAR USHA NAGAR SHIV TEMPLE,
P.O- BELTOLA, P.S- DISPUR, GUWAHATI-36, KAMRUP (M), ASSAM.
4: JYOTISH DEKA,
S/O- LATE DHIRESWAR DEKA,
R/O- H. NO-33, USHA NAGAR, BORBARI, P.O- BELTOLA,
P.S- DISPUR, GUWAHATI-36, KAMRUP (M), ASSAM.
5: MINAKSHI DAS,
W/O- NISHI PAD SWARGIARY,
R/O- VIP ROAD, USHA NAGAR, BORBARI, P.O- BELTOLA,
P.S- DISPUR, GUWAHATI-36, KAMRUP (M), ASSAM.
.....Appellants
Page No.# 4/13
- VERSUS-
1.THE STATE OF ASSAM,
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, REVENUE (SETTLEMENT) DEPARTMENT,
DISPUR, GUWAHATI-6, ASSAM
2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY,
REP. BY ITS CHAIRMAN,
BHANGAGARH, GUWAHATI- 781006, ASSAM.
3:THE GUWAHATI MUNICIPAL CORPORATION,
REP. BY ITS COMMISSIONER,
GUWAHATI-06, ASSAM.
4:THE DEPUTY COMMISSIONER, KAMRUP (M),
HENGRABARI, GUWAHATI-36, ASSAM.
5:THE CIRCLE OFFICER,
DISPUR REVENUR CIRCLE,
DISPUR, GUWAHATI-06.
.....Respondents
Linked Case : WA/316/2023
1.THARO ASHANGBI SINGHA,
WIFE OF PRADIP SINGHA,
R/O- HOUSE NO. 15, BARBARI, SANJIBANI PATH,
OPP. DOORDARSHAN COLONY,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
2: SAPNA SINGHA,
WIFE OF SRI RANJIT SINGHA,
R/O- HOUSE NO. 16, BARBARI, SANJIBANI PATH,
OPP. DOORDARSHAN COLONY,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
3: K. JOYKUMAR SINGHA,
SON OF K RAJMOHAN SINGHA,
R/O- HOUSE NO. 12, BARBARI, SANJIBANI PATH,
OPP. DOORDARSHAN COLONY,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
4: M. SURESH SINGHA,
SON OF LATE M. NARENDRA SINGHA,
R/O- HOUSE NO. 13, SANJIBANI PATH,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
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5: N. MANIHAR SINGH,
SON OF LATE N. SUNAMANI SINGH,
R/O- HOUSE NO. 5, SANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
6: PURNIMA DEVI,
WIFE OF SIJAM RANJIT SINGH,
R/O- HOUSE NO. 5A, SANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
7: K. BROJENDRA SINGHA,
SON OF LATE K. CHANDE SINGHA,
R/O- HOUSE NO. 48, SANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
8: CHANDRA KISHORE SINGHA,
SON OF CHANDRAMONI SINGHA,
R/O- HOUSE NO. 5, SANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
9: KH. SATYENDRA SINGHA,
SON OF LATE KH. CHANDRA SINGHA,
R/O- HOUSE NO. 17, SANJIBANI PATH ,BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
10: N. MANI KANTA SINGH,
SON OF LATE MANGANJAO SINGH,
R/O- HOUSE NO. 20, SANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
11: BHEIGYABATI DEVI
WIFE OF SALAM BISWANANDA SINGH
R/O- HOUSE NO. 8 SANJIBANI PATH BARBARI
P.O.- HENGRABARI DIST.- KAMRUP(M) ASSAM.
12: KANGABAM JOY SINGH,
SON OF KANGABAM M SINGH,
R/O- HOUSE NO. 10, SANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
13: KEISHAM SHITOLJIT SINGH,
SON OF K. IBOBI SINGH,
R/O- HOUSE NO. 9, S ANJIBANI PATH, BARBARI,
P.O.- HENGRABARI, DIST.- KAMRUP(M), ASSAM.
14: ABDUL LATIF MONDAL,
SON OF KADER MONDAL,
R/O- HOUSE NO. 7, SANJIBANI PATH,
Page No.# 6/13
BARBARI, P.O.- HENGRABARI,
DIST.- KAMRUP(M), ASSAM.
.....Appellants
-VERSUS-
1.THE STATE OF ASSAM,
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, DEPARTMENT OF REVENUE AND DISASTER MANAGEMENT,
DISPUR, GUWAHATI- 781006, ASSAM.
2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA),
REPRESENTED BY ITS CHAIRMAN,
3RD FLOOR, STATE-FED BUILDING, GMCH ROAD,
BHANGAGARH, GUWAHATI, ASSAM- 781005.
3:THE DEPUTY COMMISSIONER, KAMRUP(M),GUWAHATI- 781001.
4:THE CIRCLE OFFICER
DISPUR REVENUE CIRCLE, GUWAHATI.
.....Respondents
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
For the Appellant(s) : Mr. Anurag Tiwary, Advocate (through Video Conferencing) in
WA No.126/2023.
: Mr. U.S. Borgohain, Advocate in WA No.234/2023.
: Mr. S. Borthakur and Ms. P. Borah, Advocates in WA
No.316/2023 and WA No.317/2023.
For the Respondent(s) : Mr. N. Das, Government Advocate, Assam.
: Mr. R. Borpujari, Standing Counsel, Revenue and Disaster
Management Department.
: Mr. P. Nayak, Standing Counsel, GMC, GMDA and DOHUA.
Date of Hearing : 11.02.2025.
Date of judgment : 14.02.2025.
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JUDGMENT & ORDER (CAV)
(Vijay Bishnoi, CJ)
Heard Mr. Anurag Tiwary, learned counsel appearing for the appellant in
WA No.126/2023; Mr. U.S. Borgohain, learned counsel for the appellants in WA
No.234/2023 and Mr. S. Borthakur and Ms. P. Borah, learned counsel appearing
for the appellants in WA No.316/2023 and WA No.317/2023. Also heard Mr. N.
Das, learned Government Advocate, Assam; Mr. R. Borpujari, learned Standing
Counsel, Revenue and Disaster Management Department and Mr. P. Nayak,
learned Standing Counsel, Guwahati Municipal Corporation (GMC), Guwahati
Metropolitan Development Authority (GMDA) and Department of Housing and
Urban Affairs (DoHUA).
2. These writ appeals are preferred by the appellants being aggrieved with
the impugned judgment dated 03.03.2023 and order dated 31.07.2023 passed
by the learned Single Judge in a bunch of writ petitions. Two of the writ
appeals, being WA No.126/2023 and WA No.234/2023, are filed against the
impugned judgment and order dated 03.03.2023, whereas other two writ
appeals, being WA No.316/2023 and WA No.317/2023, are preferred against the
order dated 31.07.2023.
3. The writ appellants approached the Writ Court being aggrieved with the
eviction drive carried out by the respondents in respect of the land covered
under the provisions of the Guwahati Waterbodies (Prevention and
Conservation) Act, 2008 (hereinafter referred to be as "Waterbodies Act, 2008").
Vide the Waterbodies Act, 2008, the Government declared the areas of
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the land specified in Schedule I, II, III and IV as waterbodies.
4. Some of the writ petitioners argued before the learned Single Judge that
their lands did not come under the land declared as waterbodies under the
Waterbodies Act, 2008. However, some of the writ petitioners claimed that
though their lands did fall in the areas declared as waterbodies under the
Waterbodies Act, 2008, however, the provisions of the said Act would not apply
in their cases as the Act was to be applied prospectively whereas these persons
were very much in occupation of the said land prior to coming into force of the
Waterbodies Act, 2008.
5. Certain other grounds were also taken by the writ petitioners such as
that humane element had been wholly ignored wherein even minimum time was
not given to the persons affected by the encroachment drives to vacate the
lands. They also took the ground of non-following the provisions of the
Settlement Rules framed under the Assam Land and Revenue Regulations, 1886
(hereinafter to be referred as "Regulations of 1886").
6. The State respondents resisted the claims of the writ petitioners and it
was argued on behalf of the State that the eviction drive was not restricted to
the action to be taken only under the Waterbodies Act, 2008 alone but the same
was also in the nature of general eviction drive under the Regulation of 1886.
7. It was emphasized on behalf of the respondent State that it is a
primary duty of the State to get the Government lands and the waterbodies
encroachment free and the State is obliged to discharge the said duty of
protecting the water bodies in the city and accordingly, the encroachment drive
was carried out.
8. The learned Single Judge, after taking into consideration the arguments
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advanced on behalf of the parities has concluded that since as per the
categorical assertion of the learned Advocate General that the eviction drive was
not only under the Waterbodies Act, 2008 but also a general eviction drive
against all Khas land, grazing land etc., the Court is not persuaded to interfere.
9. The learned Single Judge has also found force in the contention made
on behalf of the State that the eviction drive was for the larger public interest
and has observed that it is settled position of law that larger public interest
would override the private rights of an individual or a small section of
individuals. It is further observed that the Court cannot ignore the aspect of
artificial floods seen in the city of Guwahati after a major shower which has
almost become a routine affair though such phenomenon was not seen about
two decades back.
10. In the impugned judgment dated 03.03.2023, the learned Single Judge
has taken judicial notice of the fact regarding occurrence of artificial floods and
has observed as under:
"46. This Court may take judicial notice of the fact that artificial floods have
almost become a routine in this City of Guwahati where, after a heavy shower,
the entire city is inundated and reduction of Waterbodies in the Guwahati is one
of the main reasons for the same. As indicated above, the satellite pictures for
different periods placed before this Court would really indicate a shocking state
of affairs wherein a huge water body has been turned almost to a drain. The
said satellite pictures (3 in nos.) are made part of the records. While dismissing
these writ petitions, this Court is also of the view that as stated by the learned
Advocate General of the State, the present eviction drive may be set as an
example for initiating such drives to clear all Waterbodies, especially in and
around Guwahati, including the Deepor Beel. Illegal encroachment in the hills in
and around the Guwahati is also to be made encroachment free with stricter
steps against cutting of hills and de-forestation.
47. In view of the aforesaid facts and circumstances, this Court is of the
considered opinion that the present may not be fit cases for interference, as a
much greater goal involving public interest is being sought to be achieved
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wherein this Court has not noticed any apparent aberration of law. In view of
the same, the writ petitions are dismissed."
11. While dealing with the arguments of the writ appellants to the effect that
the Waterbodies Act, 2008 is prospective in nature, the learned Single Judge
has observed that the said submission may be substantial one from legal angle,
however, it was the basic burden upon the petitioners to establish that they had
been residing in the aforesaid lands since prior to coming into force of the said
Act, however, such factual determination would require adducing of evidence
but the same is not within the ambit of the Court while exercising its powers
under Article 226 of the Constitution of India.
12. Assailing the impugned judgment, Mr. Anurag Tiwary, learned counsel
appearing for the appellant in WA No.126/2023 has argued that once the
learned Single Judge has observed that the issue raised by the petitioners
regarding prospective applicability of the Water Bodies Act, 2008 is substantial
one, the said argument should have been dealt with by the learned Single Judge
on merits.
13. It is submitted that appellants involved in WA No.126/2023 and WA
No.234/20023 had been settled in the land prior to the year 2008 and therefore,
the provisions of Waterbodies Act, 2008 have no application in their cases and
they cannot be evicted resorting to the provisions of the said Act. It is submitted
that there is also a factual dispute whether Dag No.620 (Old) finds place in
Schedule III of the Act of 2008, or not, because in the Schedule, the land under
Dag No.602 (Original) is declared as waterbodies. Learned counsel has further
submitted that the learned Single Judge has not taken into consideration the
said aspect of the matter and therefore, the impugned judgment is liable to be
set aside.
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14. Mr. S. Borthakur, learned counsel appearing for the appellants in WA
No.316/2023 and WA No.317/2023 in addition to the above arguments has
submitted that the appellants are liable to be rehabilitated in accordance with
the Land Policy-2019 but the State Government is not considering their cases for
rehabilitation and settlement in accordance with law.
15. Learned counsel appearing for the State has opposed the writ appeals
and has submitted that the writ appellants are the encroachers over the
waterbodies and the Government land and they have rightly been served with
the eviction notices under the provisions of the Waterbodies Act, 2008 and the
Settlement Rules under the Regulations of 1886. It is contended that now the
eviction drive is over and the appellants have already been evicted from the
government land as well as from the lands declared as waterbodies and
therefore, no case for interference is made out at this stage.
16. It is submitted by the learned counsel for the State that since the writ
petitioners are encroachers over the land declared as waterbodies and
Government land, they cannot claim rehabilitation and settlement in lieu of their
eviction.
17. Heard the learned counsel appearing for the parties and also perused
the material available on record.
18. The learned Single Judge has taken into consideration the fact that the
State respondents have carried the eviction drive not only under the
Waterbodies Act, 2008 but also as general eviction drive against all khas land,
grazing land etc.
19. Learned Single Judge also has taken a judicial notice of the artificial
floods in the city of Guwahati and observed that huge waterbodies have been
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turned almost to drains on account of encroachment in the waterbodies.
20. In support of the argument that the provisions of the Waterbodies Act,
2008 have no applicability in the cases of the appellants because said the Act is
prospective in nature whereas the appellants had been in occupation of the land
in question since prior to coming into force of the said Act, Mr. Tiwary, learned
counsel for the appellant in WA No.126/2023 has placed reliance on a letter
written by the Office of the Circle Officer, Dispur Revenue Circle to the Sub-
Divisional Officer (SDO), Assam Power Distribution Company Limited (APDCL),
Kamrup Metro, wherein it is mentioned that some of the appellants are
permanently residing on the land covered by Dag No.602(O) for the last 12
years.
21. It is to be noticed that the said communication written by the Office of
the Circle Officer, Dispur Revenue Circle to the SDO/APDCL, nowhere states the
year from which the persons mentioned in the said communication are in
possession of the land covered by Dag No.602 (O) and, apart from that, it is
clearly mentioned in the said communication that the same is issued for
providing electricity connection to the persons indicated in the communication
on humanitarian ground.
This letter, in our opinion, cannot be termed as a strict proof to the fact
that the appellants had been in possession of the land in question since prior to
enforcement of the Waterbodies Act, 2008.
22. Analyzing the overall facts and circumstances of the cases and also
taking note of the fact that the appellants have already been evicted from the
land declared as waterbodies and also from the Government land pursuant to
the eviction drives carried out by the State, we do not find any case for
Page No.# 13/13
interference at this stage and hence, the writ appeals are dismissed.
However, we make it clear that if the appellants have any right for
rehabilitation, this order will not preclude them to approach the respondent
State for granting such a relief and it is expected that if any such approach is
made on behalf of the appellants, the State shall consider the same objectively
and strictly in accordance with law.
JUDGE CHIEF JUSTICE
Comparing Assistant
