Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 3 Ors on 27 May, 2025
Page No.# 1/5
GAHC010265882017
2025:GAU-AS:6772
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3081/2017
GAMBHIR CH. DEORI
S/O- LATE MINARAM DEORI, R/O- BANDERDEWA, P.O and P.S-
BANDERDEWA, DIST- LAKHIMPUR, ASSAM
VERSUS
THE STATE OF ASSAM and 3 ORS.
REP. BY THE COMMISSIONER and SECY. TO THE GOVT OF ASSAM,
REVENUE DEPTT., DISPUR, GUWAHATI- 06
2:THE DEPUTY COMMISSIONER
NORTH LAKHIMPUR
DIST- LAKHIMPUR
ASSAM
3:THE ADDITIONAL DEPUTY COMMISSIONER
NORTH LAKHIMPUR
DIST- LAKHIMPUR
ASSAM
4:THE CIRCLE OFFICER
NARAYANPUR REVENUE CIRCLE
DIST- LAKHIMPUR
ASSA
Advocate for the Petitioner : , MR. A NARZARI,MS. S T BOKTH
Advocate for the Respondent : GA, ASSAM, SC, REVENUE AND DISASTER MANAGEMENT
DEPT
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 27.05.2025
1. Heard Mr. A Narzari, learned counsel for the petitioner.
Also heard Mr. BJ Talukdar, learned Addl. Senior Government
Advocate.
2. It was in the year 2017, the petitioner had preferred the
present writ petition with a grievance that the respondent authorities
had sought to evict the petitioner from his periodic patta land by
demolishing the building constructed by him on the said land, for the
purpose of construction of a National Highway. By serving a notice
(Annexure-3), the respondent no. 4 had asked the general public to
vacate the lands at Village - Baderdewa reserved for National
Highway.
3. It is the case of the petitioner that he is a periodic patta
holder in respect of a land measuring 1 Bigha, covered by Dag no.
99 & 100 and Patta no. 5, situate in Village - Banderdewa, Mouza -
Kherajkhat, Narayanpur Revenue Circle. The petitioner has enclosed
a copy of the Jamabandi in support of such contention.
4. While issuing notice of motion to the respondents on
24.05.2017, it was provided that the possession of the petitioner in
respect of his land should not be disturbed except following the due
process of law.
5. It is the contention of the petitioner that no due process
of law has been followed before seeking to evict the petitioner. On
Page No.# 3/5
the contrary, an affidavit is filed and it is admitted that a general
notice was issued by the Circle Officer (Annexure-3 to the writ
petition), asking the encroachers to vacate their encroachment on
their own by 05.05.2017.
6. Perused the aforesaid notice, produced by Mr. Talukdar,
learned senior counsel. The aforesaid notice is not specific as to the
identity of the land, what area of land is encroached and whether
those lands are khas land, roadside land or government land.
7. A Division Bench of this court in WP(C) 1057/2022
(Md. Salak Uddin Vs. State of Assam and 2 Ors.), while dealing
with a reference as to whether a notice is required to be issued
under Section 18(2) of the Settlement Rules framed under the
Assam Land and Revenue Regulation, 1886 has made certain
conclusion. Since such conclusions are having importance and
determinative factor in adjudication of an eviction process, the same
are curved out in the following manner:
I. Rule 18(2) of the Settlement Rules clearly
shows that Deputy Commissioner or such authority duly
empowered under Rule 3 of the Settlement Rule has to
arrive at a subjective satisfaction that there is no bona-
fide claim of right.
II. Revenue authorities cannot be permitted to
unilaterally decide as to whether an occupier/ possessor
has a bona-fide claim of right involved inasmuch as it
would require adjudication of both law and facts and
without providing an opportunity to the occupier /
Page No.# 4/5
possessor, such decision would be in violation of the
principle of natural justice which in turn would violate
Article 14,19 and 21 of the Constitution.
III. Though Rule 18 (2) is silent on the question of
issuance of the notice, but use of the word 'forthwith'
does not necessarily and absolutely exclude the prior
application of audi alteram partem Rule inasmuch as
immediacy or urgency requiring swift action is a
situational fact, having a direct nexus with the likelihood
of adverse affect.
IV. Bona-fide claim, in case of Government khas
land or waste land, may involve a bona-fide claim of
right to claim settlement over the land on the basis of
settlement Rules and extant land policy of the
Government of Assam. In respect of other lands i.e.
lands previously reserved for roads or roadside lands, or
for grazing of village cattle or for other public purposes
or the occupant had entered into possession of land from
which he has been excluded by general or special order,
such lands are outside the purview of settlement, there
may be various situations, where the question of
disputes pertaining to the boundary or there may be
disputes pertaining to reservations or de-reservation for
grazing of village cattle or for that matter, there may be
a dispute that the persons who have been granted the
settlement in respect of a land even prior to being
Page No.# 5/5
previously reserved for the purpose, may arise.
V. Under such circumstances, issuance of a notice
shall be necessary to form a subjective satisfaction,
which is in consonance with the principles of natural
justice inasmuch as same will facilitate a just, fair and
transparent procedure, which are facets of Article 14,19
and 21 of the Constitution.
8. In the considered opinion of this court, the general
notice issued shall not suffice the prescription made in the aforesaid
judgment of the Division Bench and therefore, such notice cannot be
treated to be a notice under any provision of law, more particularly,
under Rule 18(2) of the Settlement Rules framed under the Assam
Land and Revenue Regulation, 1886.
9. That being the position, the proposed eviction, based on
the Annexure-3 notice, stands set aside and quashed and it is
provided that the petitioner shall not be evicted without following
the due process of law as envisaged and as prescribed by the
Division Bench in, Salak Uddin (supra).
JUDGE
Comparing Assistant
