Page No.# 1/7 vs The Revenue Circle Officer And 4 Ors
2025 Latest Caselaw 5103 Gua

Gauhati High Court

Page No.# 1/7 vs The Revenue Circle Officer And 4 Ors on 29 May, 2025

                                                                  Page No.# 1/7

GAHC010164712021




                                                            2025:GAU-AS:6920

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

                           Case No. : WP(C)/5352/2021

         BHUBAN GAM
         S/O SRI NANDEWAR GAM
         RESIDENT OF HOUSE NO. 16, AMRITPUR PATH, GANESHGURI CHARAILI,
         PS DISPUR, GUWAHATI 781006, DIST KAMRUP (M) ASSAM



         VERSUS

         THE REVENUE CIRCLE OFFICER AND 4 ORS
         GOGAMUKH CIRCLE, GOGAMUKH, 787026, DIST DHEMAJI, ASSAM

         2:THE DEPUTY COMMISSIONER

          DHEMAJI
          ASSAM 787057

         3:THE UNION OF INDIA
          REPRESENTED BY THE SECRETARY
          MINISTRY OF ROAD TRANSPORT AND HIGHWAYS
         TRANSPORT BHAWAN 1
          PARLIAMENT STREET
          NEW DELHI 110001

         4:THE NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI)
          MINISTRY OF ROAD TRANSPORT AND HIGHWAY
          B 5 AND6
          SECTOR 10
          DWARKA
          NEW DELHI 110075

         5:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSSIONER AND SECRETARY
          PUBLIC WORKS BUILDING AND NH DEPARTMENT
                                                                              Page No.# 2/7

            BLOCK B
            GROUND FLOOR
            ASSAM SECRETARIAT
            DISPUR
            GUWAHATI 781006

            6:THE STATE OF ASSAM
             REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
            OF ASSAM
             REVENUE AND DISASTER MANEGEMENT DEPARTMENT
             CM BLOCK
            ASSAM SECRETARIAT
            DISPUR GUWAHATI 78100

Advocate for the Petitioner   : MR A DASGUPTA, MR P KALITA

Advocate for the Respondent : GA, ASSAM, SC, PWD,SC, NHAI,ASSTT.S.G.I.,SC, REVENUE




                                          BEFORE
                  HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY


                                          ORDER

29-05-2025

1. Heard Mr. A. Dasgupta, learned counsel for the petitioner. Also heard Mr. B. J.

Talukdar, learned Additional Senior Government Advocate, Assam for the respondent Nos. 1, 2 & 6.

2. The grievance of the petitioner is against the demolition of his staircase by the District Administration, Dhemaji.

3. An affidavit has been filed by the respondent No.2 wherein, it is admitted that the building is constructed over the patta land of the petitioner, however, it is the allegation of the District Administration that the staircase encroached Government roadside land and therefore, eviction drive was carried out.

4. While going through the affidavit and the materials available on record including the Page No.# 3/7

report of the Circle Officer, Gogamukh Revenue Circle dated 28.01.2022, it is seen that there is no mention of issuance of any notice, thereby giving any opportunity to the petitioner to respond as to whether the aforesaid land, which is alleged to be a roadside land, is actually a roadside land or not.

5. On the other hand, the petitioner has filed an affidavit specifically taking a stand that he has constructed the staircase over his patta land and therefore, an enquiry ought to have been carried out by the authority by giving an opportunity of hearing to the petitioner.

6. After going through the materials available on record, the core issue that would arise for adjudication in this writ petition is whether the power of the authorities to evict an encroacher from the Government land without serving any notice would also include the power to demolish the construction made therein without serving any prior notice, inasmuch as a Division Bench in WP(C) 1057/2022 ( Md. Salak Uddin Vs. State of Assam and 2 Ors.), even held that in any case of eviction, when allegation of encroachment of government land is there, a notice is mandatorily required.

7. In referring to this Court's earlier order dated 19.05.2025, Mr. B. J. Talukdar, learned Additional Senior Government Advocate, Assam has obtained the report/instruction from the Additional District Commissioner (Rev), Dhemaji, which reflects that on 20.09.2021, an eviction drive was conducted at Gogamukh Revenue Circle to remove encroachment of government land and during such eviction drive, approach steps of the staircase of the building of the petitioner was demolished. It is also reflected in the aforesaid report that on 28.05.2025, the Circle Officer, Gogamukh Revenue Circle, Gogamukh, conducted a joint verification with the officials of Silapathar National Highway Sub-Division.

8. It is the contention raised in the aforesaid report that in terms of Rule 18 (2) of the settlement rules under the Assam Land and Revenue Regulation, 1886, the authorities are empowered to evict the encroachers of government khas land, road Page No.# 4/7

side land etc. forthwith and to remove such encroachment and therefore, no eviction notice was issued. However, a local announcement was made to inform to the affected parties and to ensure awareness of the impeding action.

9. A Division Bench of this Court in Md. Salak Uddin (supra) while dealing with a reference as to whether a notice is required to be issued under Rule 18(2) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886, has made certain conclusions. 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     the     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/ 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 Page No.# 5/7

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 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 the same will facilitate a just, fair and transparent procedure, which are facets of Articles 14, 19 and 21 of the Constitution of India.

10. In the aforesaid backdrop, it is now mandatory to issue notice in all the cases to the affected persons as recorded hereinabove, though determinative factor of any decision thereon shall depend upon fact of the individual case.

11. Mr. Talukdar, learned Additional Senior Government Advocate, Assam is correct in arguing that at that relevant point of time, the ratio laid down in Md. Salak Uddin (supra) was not there. However, in the considered opinion of this Court, even if it is assumed that such ratio was not there at the relevant point of time, however, principle of natural justice, demands that notice ought to have been issued inasmuch as in different judgments of this Court, which are recorded by the Division Benche in Md. Salak Uddin that even if, no notice is required under Rule Page No.# 6/7

18(2) of the Regulation, 1886, principle of natural justice demands that such a notice be issued.

12. That being the position, this Court is of the unhesitant opinion that the demolition of the staircase of the petitioner was made without due process of law resulting in violation of the right of the petitioner under Articles 21 and 300A of the Constitution of India.

13. It is stated by the learned counsel for the petitioner that the petitioner had already constructed an alternative staircase and huge amount was invested in constructing the staircase.

14. Be that as it may, this Court cannot determine what is the actual cost of such staircase. However, in exercise of its power of judicial review, this Court can very well impose cost upon the respondent authorities for not adhering the principle of law, which resulted in violation of the fundamental right of the petitioner.

15. Accordingly, this writ petition stands disposed of directing the District Commissioner, Dhemaji, to pay an amount of Rs. 1,00,000/- (Rupees One Lakh only) as compensation and cost to the petitioner for illegal action of the State authority.

16. It is needless to say that this order shall not be a bar to the authorities to act against the petitioner as provided in Md. Salak Uddin (supra), in the event, the petitioner is encroaching any government land. This order shall also not mean that the petitioner is permitted to reconstruct the staircase already demolished without due permission from the competent authority.

17. A copy of the instruction provided by the learned Additional Senior Government Advocate, Assam be kept on record.

JUDGE Page No.# 7/7

Comparing Assistant