Harekrishna Talukdar vs The State Of Assam And 3 Ors
2025 Latest Caselaw 2401 Gua

Gauhati High Court

Harekrishna Talukdar vs The State Of Assam And 3 Ors on 28 January, 2025

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GAHC010279032018




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

                             Case No. : WP(C)/8760/2018

         HAREKRISHNA TALUKDAR
         S/O. HARISH TALUKDAR, R/O. TINTUKURA, PANIKHAITI RAIL GATE, P.S.
         PRAGJYOTISHPUR, P.O. PANIKHAITI, GUWAHATI-781026, DIST. KAMRUP
         (M), ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, REVENUE
         DEPTT. AND DISASTER MANAGEMENT DEPTT., DISPUR, GUWAHATI-
         781006.

         2:THE PRINCIPAL SECRETARY
         TO THE GOVT. OF ASSAM
          REVENUE DEPTT. AND DISASTER MANAGEMENT DEPTT.
          DISPUR
          GUWAHATI-781006.

         3:THE DY. COMMISSIONER

          KAMRUP (M)
          ASSAM
          GUWAHATI-781001.

         4:THE CIRCLE OFFICER

          CHANDRAPUR REVENUE CIRCLE
          PANIKHAITI
          GUWAHATI-781026
          DIST. KAMRUP (M)
          ASSAM
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Advocate for the Petitioner   : MR G JALAN, MR. N DAS

Advocate for the Respondent : GA, ASSAM, FOR CAVEATOR,MR. S BANIK,SC, REVENUE




             Linked Case : WP(C)/430/2019

            UTPAL KALITA
            S/O SHRI PABAN KALITA
            R/O VILL- PANIKHAITI
            P.O. PANIKHAITI
            P.S. PRAGJYOTISHPUR
            DIST. KAMRUP (MEROPOLITAN)
            ASSAM
            PIN - 781026.


             VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM

             REVENUE DEPARTMENT AND DISASTER MANAGEMENT DEPARTMENT
             DISPUR
             GUWAHATI - 781006.

            2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM

            REVENUE DEPARTMENT AND DISASTER MANAGEMENT DEPARTMENT

             DISPUR
             GUWAHATI - 781006.

             3:THE DEPUTY COMMISSIONER

            KAMRUP (METROPOLITAN)
            ASSAM
            GUWAHATI - 781001.

             4:THE CIRCLE OFFICER

            CHANDRAPUR REVENUE CIRCLE
            PANIKHAITI
            GUWAHATI- 781026
                                                      Page No.# 3/9

DIST. KAMRUP (METROPOLITAN)
ASSAM.
------------
Advocate for : MR G JALAN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 3 ORS.



Linked Case : WP(C)/433/2019

NAYAN CH. SARMA
S/O LATE PADMA SARMA
R/O VILL- PANIKHAITI
P.O. PANIKHAITI
P.S. PRAGJYOTISHPUR
DIST.KAMRUP (METROPOLITAN)
ASSAM
PIN - 781026.


VERSUS

THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT.OF ASSAM

REVENUE DEPARTMENT AND DISASTER MANAGEMENT DEPARTMENT
DISPUR
GUWAHATI- 781006.

2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM

REVENUE DEPARTMENT AND DISASTER MANAGEMENT DEPARTMENT

DISPUR
GUWAHATI - 781006.

3:THE DEPUTY COMMISSIONER

KAMRUP (METROPOLITAN)
ASSAM
GUWAHATI - 781001.

4:THE CIRCLE OFFICER

CHANDRAPUR REVENUE CIRCLE
PANIKHAITI
GUWAHATI- 781026
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           DIST. KAMRUP (METROPOLITAN)
           ASSAM.
           ------------
           Advocate for : MR G JALAN
           Advocate for : GA
           ASSAM appearing for THE STATE OF ASSAM AND 3 ORS.



                                 BEFORE
                     HONOURABLE MR. JUSTICE KARDAK ETE

                                     ORDER

Date : 28.01.2025.

Heard Mr. G. Jalan, learned counsel for the petitioners in these three writ petitions. Also heard Mr. N. Goswami, learned State Counsel appearing for the respondent authorities.

2. Since these three writ petitions involved similar background, facts and law, same are being disposed of by this common judgment and order.

3. Challenges made in these writ petitions are to the impugned notices dated 31.10.2018, issued by the Circle Officer, Chandrapur Revenue Circle, Panikhaiti, whereby the petitioners are directed to vacate the encroached land covered by Dag No.12 and 387 of village Panikhaiti under Mouza - Beltola in the district of Kamrup (M), Assam.

4. The case projected by the petitioners is that they have been under permissive possession of certain portion of land, covered by Dag No.12 and 387 of village Panikhaiti under Mouza - Beltola in Kamrup (M) District. It is contended that since the petitioners are under the permissive possession of the aforesaid land for more than 20 (twenty) years, a notice is required to be issued Page No.# 5/9

under Rule 18 of the Settlement Rules.

5. The Circle Officer, Chandrapur Revenue Circle issued the impugned notice dated 31.10.2018 against the petitioners directing to vacate the land on the ground that the lands are allotted to one Sri Prabir Biswas and 62 families, as per the order of the Hon'ble Gauhati High Court.

6. Mr. G. Jalan, learned counsel for the petitioners, submits that the lands are neither the Government land nor the patta land of Sri Prabir Biswas and 62 families. Even if it is stated to have been allotted to Sri Prabir Biswas and 62 families, the petitioners are totally in dark, as no notice whatsoever was issued before issuance of impugned notice and not in the writ proceedings. Therefore, no authority to evict the petitioners.

7. He submits that on perusal of the impugned notice dated 31.10.2018, issued to the petitioners, same bears a reference of Contempt Case (C) No.312/2018 and also the communication dated 25.10.2018, issued by the Deputy Commissioner, Kamrup (M) District. The petitioners have not been furnished with the copy of the Contempt Case nor the communication dated 25.10.2018. Therefore, the writ petitioners are completely in dark as to the reason for impugned notices to vacate the land.

8. Mr. G. Jalan, learned counsel, submits that minimum show cause notice is required to be issued before the impugned order to vacate the land, as mandated under Rule 18 of the Settlement Rules. The impugned order not only violates the provision of Rule 18 but also the cardinal principle of Natural Justice, as the same requires that minimum show cause notice is required to be issued by giving an opportunity of hearing. Having not been followed the Page No.# 6/9

requirement of the law, he submits that the impugned notices are liable to be set aside and quashed and a direction may be given to the respondent authorities to consider the case of the petitioner, by following the due process of law.

9. Mr. G. Jalan, learned counsel for the petitioners, has referred to the judgment of Division Bench, passed in WP(C) No.1057/2022 (Md. Salak Uddin vs. the State of Assam and others), reported in 2024 0 Supreme (Gau) 843, in support of his claim for issuance of notice to show cause.

10. On the other hand, Mr. N. Goswami, learned State Counsel while referring to the affidavit in opposition filed on behalf of the State, submits that the land covered by Dag Nos.12, 15, 268 and 387 of village Panikhaiti under Mouza

-Beltola in Kamrup (M) District is a Government land. The Government has allotted land measuring 30 Bigha 06 Katha 0 Lecha of Government land to Sri Prabir Biswas and 62 other families, vide order dated 06.09.2012. He submits that Sri Prabir Biswas and other 62 families have approached the Hon'ble Gauhati High Court being WP(C) No.7965/2016, whereby vide orders dated 12.08.2015 and 09.04.2018, the Court has directed to hand over the complete allotted land to Sri Prabir Biswas and 62 other families. Therefore, the petitioners are the encroachers as the land in question is not a patta land and as such the petitioners have no right to a show cause notice, as admittedly the petitioners are encroachers of the Government land.

11. I have considered the submissions of learned counsel for the parties and also perused the materials available on record including the orders passed by the coordinate Bench of this Court in earlier writ proceedings and contempt case.

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12. Admittedly, the land covered by Dag Nos.12, 15, 268 and 387 at village Panikhaiti under Mouza - Beltola in Kamrup (M) District have been allotted to Sri Prabir Biswas and 62 other families. The petitioners although claimed to be under the permissive possession over the land on which they are staying as on date, could not show any semblance of right over the land except for claiming their right under the permissive possession, since more than twenty (20) years. It is also submitted on behalf of the petitioners that they are in occupation of the land under some other persons, who are also not having any title or right over the land.

13. Having considered the entire facts and circumstances of the matter, this Court is of the view that the petitioners are the encroachers and thus, they would not have any right even to claim for settlement over the said land. Moreover, the lands in question have already been settled with Sri Prabir Biswas and 62 other families by now pursuant to the order passed in the earlier writ proceedings.

14. Rule 18 of the Rules under Assam Land and Revenue Regulation provides for ejectment, which are quoted hereinbelow:

"18. Ejectment. (1) Subject as hereinafter provided, the Deputy Commissioner may eject any person from land over which no person has acquired the rights of a proprietor, land-holder, or settlement-holder.

(2) When such person has entered into possession of [Government khas land, or Waste land or estate over which no person has acquired the rights of a proprietor, land-holder or Settlement-holder or any) land that has previously been reserved for roads or roadside lands or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when, further, there is no bonafide claim of right involved he may be ejected or ordered to vacate the land forthwith, and the Deputy Commissioner may Page No.# 8/9

sell, confiscate or destroy any crop raised, or any building or other construction erected, without authority on the land".

15. Bare perusal of the above provision shows that a person who has entered into possession of Government khas land, or Waste land or estate over which no person has acquired the rights of a proprietor, land-holder or Settlement-holder that has previously been reserved for roads or roadside lands or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when, there is no bonafide claim of right involved he may be ejected or ordered to vacate the land forthwith.

16. There is no qualms that the Principle of Natural Justice requires that minimum notice of show cause is to be issued and also as held by the Division Bench, in the reference case in WP(C) No.1057/2022 (Md. Salak Uddin vs. the State of Assam and others), reported in 2024 0 Supreme (Gau) 843, that prior to initiation of proceedings under Rule 18(2) of the Settlement Rules, the occupant/possessor of Government lands have to be issued notice. However, in the facts and circumstances of the present case, since the petitioners could not show even semblance of right over the said land, this Court is of the view that issuance of show cause notice prior to the impugned notices would be a mere formality and the theory of useless formality would be pressed into service. Thus, issuance of show cause notice is not required in the facts and circumstances of the present cases as no prejudice is shown by the petitioners and they being the encroachers of the Government land which has been allotted to 63 families pursuant to the order of this Court.

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17. On the admitted and indisputable facts of being encroachers on the Government lands which have been allotted to 63 families pursuant to the order of this Court in earlier proceedings, this Court is of the considered opinion that no notice of show cause would be required to be issued to the petitioners as mere infraction of principle of natural justice may not be sufficient ground for exercising writ jurisdiction and no inflexible rule of hearing can be insisted upon in every and all cases as each case depends upon its own backdrop.

18. In view of the discussions made herein above, I do not find any merit in these writ petitions as there is no ground to interfere with the impugned notice dated 31.10.2018, issued by the Circle Officer, Chandrapur Revenue Circle, Panikhaiti. Accordingly, the writ petitions are dismissed.

19. However, considering that the petitioners claim to be staying over the land since more than twenty (20) years, the authorities may provide reasonable time to vacate the land, preferably by providing thirty (30) days to the petitioners.

The parties are to bear their own costs.

JUDGE

Comparing Assistant