Page No.# 1/15 vs The Union Of India And 6 Ors
2025 Latest Caselaw 4359 Gua

Gauhati High Court

Page No.# 1/15 vs The Union Of India And 6 Ors on 24 March, 2025

                                                            Page No.# 1/15

GAHC010003132025




                                                       2025:GAU-AS:3184

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

                           Case No. : WP(C)/195/2025

         BISHAL DEY AND 52 ORS
         S/O- BASUDEB DEY

         2: BIDHAN CH. PAUL
          S/O- LATE BINAD BIHARI PAUL

         3: SANKAR DAS
          S/O- LATE NAKUL DAS

         4: AJIT NANDI
          S/O- LATE NAKARI MOHON NANDI

         5: NIKUNJA DEBNATH
          S/O- LATE MONMAHAN DEBNATH

         6: NITAI CH. DEY
          S/O- LATE SANTOSH CH. DEY

         7: RAJU SEN
          S/O- BRAJENDRA SEN

         8: SANKAR DUTTA
          S/O- LATE SHUTAL DUTTA

         9: DILIP DEY
          S/O- LATE KANAI LAL DEY

         10: NEMAI MAZUMDAR
          S/O- LATE SATYENDRA MAZUMDAR

         11: SWAPAN MAJUMDAR
          S/O- NEMAI MAJUMDAR

         12: SIPOK DEY
                                Page No.# 2/15

S/O- LATE SATISH DEY

13: RINKU DEY
 S/O- LATE DHANANJAY DEY

14: PIJUSH CH. DEY
 S/O- LATE DHANANJAY DEY

15: ANUPAM DAS
 S/O- LATE AJIT DAS

16: LEDU CH. DEY
 S/O- LATE ANIL CH. DEY

17: MANOJ DEY
 S/O- LATE KALIPADA DEY

18: ALOK KESHRI
 S/O- RADHESWAM KESHRI

19: DEBASISH RATNA
 S/O- SABITARAJAN PAUL RATNA

20: BIKASH DEY
 S/O- LATE BHAJAN CH. DEY

21: SUSHANTA SARKAR
 S/O- LATE SANTOSH SARKAR

22: ASHIM RAY
 S/O- LATE PARESH RAY

23: BIDHAN DUTTA
 S/O- LATE MANORANJAN DUTTA

24: NARAYAN CH. DAS
 S/O- LATE ANATH CH. DAS

25: AJAY KR. DAS
 S/O- LATE HARE KRISHNA DAS

26: HORITOSH DEB
 S/O- LATE SHYAM SUNDAR DEB

27: SUDHIR CH. DEY
 S/O- LATE UMECH CH. DEY

28: PARIMAL SARKAR
                                    Page No.# 3/15

S/O- LATE SUKUMAR SARKAR

29: SANJAY DEY
 S/O- LATE NANI GOPAL DEY

30: NARAYAN DEY
 S/O- LATE HARI DAS DEY

31: KARTICK GOWALA
 S/O- LATE MOHADEV GOWALA.

32: SHANKAR PAUL
 S/O LATE KHIROD PAUL
C/O- AJIT SARKAR

33: NARAYAN DEY
 S/O- LATE UMECH CH. DEY

34: RATAN MAZUMDAR
 S/O- NEMAI MAZUMDAR

35: NAYAN DEVNATH
 S/O- SAMIR DEVNATH
 C/O- ANIL DAS

36: JAYANTA MAZUMDAR
 S/O- LATE KARTICK MAZUMDAR

37: KRISHNA DAS
 S/O- ARUN DAS

38: MALA DEY
W/O- LATE SANKAR DEY

39: PARTHA PRATIM MAZUMDAR
 S/O- LATE GANESH MAZUMDAR

40: PRANAB RAY
 S/O- LATE BIMAL ROY

41: SWAPAN KR. DEY
 S/O- LATE DIGENDRA KR. DEY

42: DIPANKAR MALAKAR
 S/O- LATE RANJAN MALAKAR

43: TRIDIP CHAKRABARTY
 S/O- LATE MIHIR KR. CHAKRABARTY
                                                      Page No.# 4/15


44: NITISH KUMAR
 S/O- DEVANAND SINGH

45: RAJESH KR. SINGH
 S/O- LATE BADRINARAYAN SINGH

46: GOBINDA CH. DUTTA
 S/O- LATE KALIPADA DUTTA

47: UMESH CHANDRA ROY
 S/O- LATE CHANDRA ROY

48: KARTICK DUTTA
 S/O- LATE AKSHAY DUTTA

49: CHITTA DEY
 S/O- LATE MONORANJAN DEY

50: LAXMI MAZUMDER
W/O- MANIK MAZUMDER

51: DILIP DEY
 S/O- LATE SURENDRA CHANDRA DEY

52: BABY ROY
W/O- AJAY KUMAR ROY

53: PINKY DEY
W/O- JHULAN DEY

ALL ARE RESIDENTS OF WARD NO.4
BOKAJAN
KARBI-ANGLONG
ASSAM
PIN 782480

VERSUS

THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE GENERAL MANAGER, NORTH FRONTIER
RAILWAY, MALIGAON, GUWAHATI, PIN-781011

2:THE DIVISIONAL RAILWAY MANAGER
 N.F. RAILWAY
 LUMDING
ASSAM
 PIN-782447.
                                                                            Page No.# 5/15


           3:THE ESTATE OFFICER
            N.F. RAILWAY
            LUMDING
           ASSAM
            PIN-782447

           4:THE STATE OF ASSAM
            REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
            DISPUR
            GUWAHATI-6

           5:THE KARBI ANGLONG DISTRICT AUTONOMOUS COUNCIL
            REPRESENTED BY THE SECRETARY
            EXECUTIVE COMMITTEE
            KARBI ANGLONG
            DISTRICT COUNCIL
           ASSAM
            PIN-782460

           6:THE ADDL. DISTRICT COMMISSIONER
            I/C BOKAJAN SUB-DIVISION
            BOKAJAN.

           7:THE DISTRICT MAGISTRATE
            KARBI- ANGLONG
            DIPHU

Advocate for the Petitioner : MR K K MAHANTA (Sr. Advocate), MR S GAUTAM,MS N
BEGUM,MR. K M MAHANTA

Advocate for the Respondent : DY.S.G.I., MR. K GOGOI (C.G.C),GA, ASSAM,SC, K A A C




                                  BEFORE
                 HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR

                                        ORDER

Date : 24.03.2025

Heard Mr. S. B. Prasad, learned counsel for the petitioners. Also heard Mr. K. Gogoi, learned CGC, for the respondent Nos. 1, 2 & 3; Mr. G. Bakalial, learned Government Advocate, for the respondent Nos. 4, 6 & 7 and Mr. R. Ronghang, Page No.# 6/15

learned Standing Counsel, for the respondent No. 5.

2. 53 petitioners have joined together to file the instant writ petition challenging the eviction proceedings so initiated against them by the respondent Nos.6 & 7 at the behest of the respondent Nos.1, 2 & 3.

3. The petitioners herein claim that since 1970 onwards, they have been in occupation of respective plots of land in Ward No.4, Bokajan thereby running their livelihood of their families through stationery, clothes, tailoring, grocery, medicine, tea stall, hardware, photo studio, shoe shop, etc. by constructing wooden and pucca shops with CI sheets having valid trade licenses from the Karbi Anglong Autonomous District Council as well as from the local Authority, i.e. Bokajan Town Committee under the Karbi Anglong Autonomous Council. In the year 2011-12, notices were issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short, "the Act of 1971") asking the petitioners to show cause as to why they should not vacate the lands in their possession as the same fell within the ambit of public premises as defined in Section 2 (e) of the Act of 1971. The materials on record so placed by Mr. K. Gogoi, learned CGC, appearing on behalf of the respondent Nos.1, 2 & 3 does not show that the petitioners as well as the other persons to whom notices were issued had submitted any reply. It further transpires that pursuant thereto, certain orders were passed under Section 5 of the Act of 1971 by the respondent No.3 thereby directing the petitioners along with others to vacate their possession from the land under their possession. The petitioners herein along with various others formed an Association in the name and style of "Bokajan Sarbajanin Kalibari Samiti" which was a Society registered under the provisions of the Societies Registration Act, 1860. The said Society filed a writ petition before this Court which was registered and numbered as WP(C) Page No.# 7/15

No.4143/2012. The said writ petition was disposed of on 31.08.2012 thereby granting liberty to the Society to avail the Appellate Forum, i.e. an Appeal under Section 9 of the Act of 1971 on or before 07.09.2012. It further appears from the records placed by Mr. K. Gogoi, learned CGC, that the said Society through its Secretary filed an appeal which was registered and numbered as Misc.(Civil) Appeal No.5/2012. In addition to the said Appeal being Misc.(Civil) Appeal No.5/2012, another Appeal was filed which was registered and numbered as Misc.(Civil) Appeal No.1/2015.

4. During the course of hearing, Mr. K. Gogoi, learned CGC, appearing on behalf of the respondent Nos.1, 2 & 3 placed before this Court the judgment and order passed by the learned Court of the District Judge Karbi Anglong in both Misc. (Civil) Appeal No.5/2012 and Misc.(Civil) Appeal No.1/2015. The Appeal so filed being Misc.(Civil) Appeal No.5/2012 was dismissed primarily on the ground that the Memo of Appeal was totally silent as to who were the members of the Appellant Society who were served with the eviction notices issued by respondent No.3 herein. It was also opined that there was no documents on record showing that any member of the Appellant Society was served any notice under Section 4 of the Act of 1971 or any eviction order passed under Section 5 of the Act of 1971. In Misc.(Civil) Appeal No.1/2015, the Court of the learned District Judge, Karbi Anglong vide the judgment and order dated 06.11.2017 dismissed the Appeal opining that the impugned orders so passed were not passed by the Estate Officer. It was further opined that an appeal lies before the said Court under Section 9 of the Act of 1971 only when an order is passed by the Estate Officer in respect of a public premises. It was also opined in paragraph No.18 of the said judgment that there was no document on record showing that any notice under Section 4 of the Act of 1971 Page No.# 8/15

was served upon any member of the Appellant Society, and as such, the Appeal was premature.

5. Being aggrieved by both the judgments passed by the learned District Judge, Karbi Anglong in Misc.(Civil) Appeal No.5/2012 and Misc.(Civil) Appeal No.1/2015, two writ petitions were filed which were registered and numbered as WP(C) No.7411/2017 and WP(C) 7421/2017. WP(C) No.7421/2017 was dismissed vide an order dated 02.04.2024 holding inter-aila that the petitioner in the said writ petition which was the Society was not a person aggrieved, and as such, did not have the locus-standi to maintain the writ petition. In WP(C) No.7411/2017 vide another order dated 11.03.2024, the Coordinate Bench of this Court opined that the individual members of the petitioners Society who were given eviction notices had not approached the Court of the District Judge with their grievances, and as such, there was no infirmity with the decision of the learned District Judge in dismissing the Misc.(Civil) Appeal No.5/2012. It was also opined that the Society where the petitioners herein were the members cannot be an affected or necessary party in the proceedings before the Court of the learned District Judge as the eviction order was not issued to the writ petitioner but to the individual persons who have not made a challenge to the same in terms with Section 9 of the Act of 1971. It is under such circumstances, the writ petition was dismissed. Pursuant to the dismissal of the said writ petition, the respondent authorities, more particularly, the respondent Nos.1, 2 & 3 sought the assistance of the respondent Nos.5, 6 & 7 for the purpose of carrying out the eviction. It is under such circumstances, the petitioners have approached this Court.

6. It is relevant to take note of that vide an order dated 20.12.2024, while this Court permitted the respondents to obtain instructions, directions were Page No.# 9/15

issued that no steps for eviction of the petitioners from the concerned land be taken on the basis of the order dated 17.12.2024 passed by the District Magistrate, Karbi Anglong, Diphu. The interim order thereupon has been extended vide an order dated 03.01.2025 and the matter was taken up for consideration by this Court on 07.01.2025. The matter was duly heard and taking into account the corresponding claims and rights, this Court is of the opinion that the matter requires disposal at the motion stage. Accordingly, with the consent of both the parties, the writ petition is taken up for disposal.

7. Mr. S. B. Prasad, leaned counsel for the petitioners submitted that there has been no adjudication on merits either by the Appellate Authority or by this Court where proceedings were filed. He further submitted that the petitioners herein did not get any opportunity for submitting their replies to the notices issued under Section 4 of the Act of 1971 in as much as only some of the persons who are residing over the lands have received notices. The learned counsel for the petitioners submitted that even the perusal of the orders so passed under Section 5 of the Act of 1971 clearly shows that there has been complete non-application of mind in as much as the respondent No.3 did not assign any reasons for passing such orders.

8. Per contra, Mr. K. Gogoi, learned CGC, appearing on behalf of the Railways, submitted that the Railways have initiated proceedings under the Act of 1971 for eviction of the various persons including the petitioners taking into account that these petitioners along with others were in illegal and unauthorized occupation of railway land which are public premises within the meaning of Section 2(e) of the Act of 1971. Mr. K. Gogoi, learned CGC, appearing on behalf of the Railways further submitted that due notices were issued under Section 4 of the Act of 1971, and thereupon, the petitioners chose not to reply and it is Page No.# 10/15

under such circumstances, the orders of evictions were passed under Section 5 of the Act of 1971. He further submitted the petitioners on their own had formed the Society and thereupon had filed the writ petition before this Court and this writ petition was not entertained by this Court giving them the liberty to avail to file Appeal under Section 9 of the Act of 1971. The learned CGC appearing on behalf of the Railways submitted that the petitioners ought to have individually file appeals, rather they filed their appeals through the Secretary of the Society and the Society itself, and as such, the petitioners are to be blamed for their conduct. The orders so passed under Section 5 of the Act of 1971 having attained finality, the question of interference at this stage ought not to be made by this Court. Mr. K. Gogoi, learned CGC, appearing on behalf of the Railways further submitted that on account of the illegal and unauthorized occupation of the petitioners over the land belonging to the Railways various infrastructural projects have been stopped.

9. This Court has duly heard the learned counsels appearing on behalf of the parties and has given an anxious consideration to the materials on record as well as their submissions. First and foremost, it is pertinent to observe that the writ petition was neither been drafted properly nor the relevant materials were placed. This Court finds it apt at this stage to commend with appreciation the submissions of Mr. K. Gogoi, learned CGC, who in his usual fairness have placed the various relevant materials during the course of hearing so that this Court could arrive at a just decision. The details of the relevant materials have been discussed supra.

10. From the above materials on record, it transpires that the petitioners herein have approached this Court alleging violation of their fundamental rights enshrined under Article 21 of the Constitution in as much as it is the case of the Page No.# 11/15

petitioners that the respondent authorities have initiated the process of eviction without following the due process or in other words, the case of the petitioners is that they are sought to be evicted without following the due process as statutorily mandated under the Act of 1971. It is also the case of the petitioners that the petitioners have been in occupation of the lands and carrying on their livelihood. The Respondent Authorities being a State are bound to act fairly and reasonably else their very right to livelihood which is a facet of right life would be seriously impaired.

11. This Court finds it very relevant to observe that when a litigant approaches this Court invoking its high prerogative writ jurisdiction with a petition under Article 226 of the Constitution alleging that the State actions are in breach of the fundamental rights and claims that the breach be bridged by issuing an appropriate writ, direction and order as distinguished from a claim for enforcement of a statutory right, it partakes the character of a duty cast upon this Court to enforce the right breached as the guardians of the Constitution. The breach so alleged in the instant writ petition as stated above is violation of the rights conferred under Article 21 of the Constitution on the ground that the Respondent Authorities have resorted to action to evict the petitioners in violation of the principles of natural justice which as per the judgment of the Constitution Bench of the Supreme Court in the case of Maneka Gandhi vs. Union of India, reported in the AIR 1978 SC 597 was held to be a part of Article 21 of the Constitution.

12. This Court further takes note of the facts which would show that though the Coordinate Bench of this Court permitted the Society formed by the petitioners along with others to approach the Appellate Forum, but the Appeals and writ petitions filed were all dismissed without consideration of their cases on Page No.# 12/15

merits. Right to access justice is a fundamental principle of the Rule of law which is also basic feature of our Constitutional Law.

13. In the backdrop of the above, let this Court analyze the factual matrix. The materials on record show that the petitioners herein were duly issued notice under Section 4 of the Act of 1971. There are allegations and counter allegations to the effect that some of the petitioners did not receive the notice and some have. The fact that the petitioners did not submit any reply to the said notices is not in question. Be that as it may, orders were passed under Section 5 of the Act of 1971. This Court, during the course of the hearing, had the occasion of going through the orders passed under Section 5 of the Act of 1971. The said orders, however, are bereft of any reasons. Assigning reasons to an order by a quasi judicial authority befalling civil consequences not only be in tune with the principles of natural justice but also necessary for the purpose of clarity, fairness, understanding, objectivity as well as assigning reasons helps the Appellate Forum to consider the reasons for the decision.

14. It is also noticed that the petitioners along with others had formed an Association which was a Society registered under the provisions of the Societies Registration Act, 1860. The said Society filed the writ petition before this Court which was registered and numbered as WP(C) No.4143/2012. This Court vide an order dated 31.08.2012 permitted the said Society to approach the Appellate Forum, i.e. the forum as prescribed under Section 9 of the Act of 1971. Two appeals thereupon were preferred. As already stated, both the appeals were dismissed primarily on the ground that there was no notice issued to that Society, rather, the notices were issued to the members. However in doing so, nothing was considered that there was a direction passed by this Court in its order dated 31.08.2012 in WP(C) No.4143/2012 whereby the Society was given Page No.# 13/15

the liberty to prefer appeals. It is further noticed that challenging those orders passed in the Appeals filed by the Society, two petitions were filed being WP(C) No.7421/2017 and WP(C) No.7411/2017. Both these petitions were also dismissed without going into the merits of the case, rather, these petitions were dismissed on the ground of locus of the petitioner therein, i.e. the Society. In both these orders passed by the Coordinate Bench of this Court, the order passed by this Court dated 31.08.2012 in WP(C) No.4143/2012 was not taken into consideration.

15. From the above factual matrix that can be discerned during the course of the hearing, it therefore transpires that the adjudication of the rights of the petitioners were never gone into on merits. Rather on technical grounds, the rights of the petitioners were nipped at the bud.

16. This Court further takes note of that the petitioners herein are now aware that notices under Section 4 of the Act of 1971 were issued to them. Mr. S. B. Prasad, learned counsel for the petitioners also submitted that in view of the passage of time and the litigations, the notices under Section 4 of the Act of 1971 can be deemed to have been issued against the petitioners. He submits that the petitioners have rights to resist the summary eviction proceedings on the ground that the lands under their occupation are not public premises as well as raising bonafide dispute. The learned counsel for the petitioners therefore submitted that the petitioners be permitted to file individual representation.

17. From the above analysis, the following conclusions are arrived at:-

(i) The petitioners herein were not afforded proper and reasonable opportunity during the eviction proceedings initiated against them.

(ii) The petitioners who had challenged the eviction proceedings on Page No.# 14/15

merits, through the Society formed to safeguard and protect their interests; no decision was arrived at on merits deciding the rights of the petitioners vis-a-vis the eviction proceedings.

(iii) The eviction orders passed under Section 5 of the Act of 1971 are bereft of any reasons and as such the same are in violation of the principles of natural justice.

(iv) The interest of justice demands that the petitioners be given an opportunity to submit replies individually espousing their cause.

18. Accordingly, the instant writ petition stands disposed of with the following observations and directions:-

(i) The orders so passed under Section 5 of the Act of 1971 in so far as regards the petitioners are set aside and quashed.

(ii) The petitioners herein are given the liberty to submit individual representations to the respondent No.3 within 10 days from the date of the instant judgment. In the said representations, the petitioners would be able to raise amongst others issues to the effect that the land in question under their occupation are not public premises within the meaning of Section 2 (e) of the Act of 1971. In doing so the petitioners would have to substantiate the same on the basis of relevant documents.

(iii) Upon submission of the said individual representations by the petitioners, the respondent No.3 is directed to decide the said dispute by giving an opportunity of hearing to both the Railways and the petitioners either personal hearing or a hearing through their authorized representatives. The respondent No.3 shall also take note of the materials on the basis of which the Railways claim that the land under the Page No.# 15/15

occupation of the petitioners to be Railway land.

(iv) The respondent No.3 thereupon shall pass appropriate order(s) as deem fit in terms with the Act of 1971 by giving reasons.

19. Before parting with the record, this Court further observes that taking into account the urgency expressed by the respondent Nos.1, 2 & 3 in the matter, there shall be no extension of time to submit the representations by the petitioners beyond the time as mentioned herein above.

JUDGE

Comparing Assistant