Gauhati High Court
Page No.# 1/14 vs The State Of Assam And 7 Ors on 16 October, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/14
GAHC010062582021
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2391/2021
TRINAYAN NAGAR UNNAYAN SAMITEE AND 4 ORS
A REGD. ASSOCIATION HAVING ITS REGD. OFFICE AT MAIDAMGAON,
BELTOLA, P.O. BEOTLA, P.S. BASISTHA, GUWAHATI-29, DIST. KAMRUP (M),
ASSAM REP. BY ITS PRESIDENT- SRI DIPANKAR MEDHI.
2: DIPANKAR MEDHI
S/O. LT. LAKKHI NARAYAN MEDHI
R/O. MAIDAMGAON
BELTOLA
P.S. BASISTHA
GUWAHATI-29
DIST. KAMRUP (M)
ASSAM.
3: SUNIL KUMAR BORO
S/O. LT. NABIN CHANDRA BORO
R/O. MAIDAMGAON
BELTOLA
P.S. BASISTHA
GUWAHATI-29
DIST. KAMRUP (M)
ASSAM.
4: SARAT KUMAR DAS
S/O. LT. KANCHIRAM DAS
R/O. MAIDAMGAON
BELTOLA
P.S. BASISTHA
GUWAHATI-29
DIST. KAMRUP (M)
ASSAM.
5: JATIN RAJBONGSHI
S/O. LT. LAKHIKANTA RAJBONGSHI
Page No.# 2/14
R/O. MAIDAMGAON
BELTOLA
P.S. BASISTHA
GUWAHATI-29
DIST. KAMRUP (M)
ASSAM
VERSUS
THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HOME DEPTT.,
DISPUR, GUWAHATI-06, DIST. KAMRUP (M), ASSAM.
2:THE DY. COMMISSIONER
KAMRUP (M)
M.G. ROAD
GUWAHATI-781001.
3:THE SUPDT. OF POLICE
CHIEF MINISTER/S SPECIAL VIGILANCE CELL
SRIMANTAPUR
CHILARAI NAGAR
P.O. BHANGAGARH
GUWAHATI-07
DIST. KAMRUP (M)
ASSAM.
4:LAKKHYAJIT DAS
CIRCLE OFFICER
DISPUR REVENUE CIRCLE
P.O. BASISTHA
GUWAHATI-781029
DIST. KAMRUP (M)
ASSAM.
5:TANMAY BORA
ASSTT. CIRCLE OFFICER
DISPUR REVENUE CIRCLA
P.O. BASISTHA
GUWAHATI-781029
DIST. KAMRUP (M)
ASSAM.
6:PUNAM PEGU
ASSTT. COMMISSIONER OF POLICE
OFFICE OF THE BUREAU OF INVESTIGATION
ECONOMIC OFFENCES
Page No.# 3/14
SRIMANTAPUR
CHILARAI NAGAR
GUWAHATI-781007
DIST. KAMRUP (M)
ASSAM.
7:PARTHAPROTIM GOGOI
OFFICER IN CHARGE
BASISTHA POLICE STATION
P.O. BASISTHA
GUWAHATI-781029
DIST. KAMRUP (M)
ASSAM.
8:M/S YEAST INFRASTRUCTURE PVT. LTD.
A REGD. COMPANY HAVING ITS REGD. OFFICE AT 303
AMAZED SHOPPING MALL
A.T. ROAD
GUWAHATI-781001
DIST. KAMRUP (M)
ASSAM
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioners : Shri S. Kataki, Advocate
Advocates for the respondents : Shri N. Das, State Counsel,
Ms. S. Nath [R- No. 4],
Shri H. Buragohain [R- No. 8]
Date of hearing : 16.10.2025
Date of judgment : 16.10.2025
Page No.# 4/14
JUDGMENT & ORDER
The petitioner no. 1 which is an Association along with 4 of its members
has approached this Court under Article 226 of the Constitution of India
challenging, inter alia, the action of the respondent nos. 4 to 7 taken on
02.02.2021 dispossessing / evicting the members of the petitioner no. 1 from
land measuring 2 Bighas 1 katha of Dag No. 586 of K.P. Patta No. 75 and
handing over possession of the same to the respondent no. 8. It is the
contention of the petitioners that such action is wholly without any jurisdiction
and not backed by the mandate of law.
2. As per the facts projected, the petitioner no. 1 is a registered Association
and the other 4 petitioners are its members. The area in question is a part of a
land measuring 50 Bighas which was requisitioned in the year 1976 under the
Assam Land (Requisition & Acquisition Act), 1964 for construction of a Helipad
at Beltola, Guwahati. However, due to certain change in the policy decision, the
land was de-requisitioned by an order passed by the Deputy Commissioner,
Kamrup on 20.12.1999 and accordingly, the land had vested back on the earlier
owner. It is the admitted case of the petitioners that they are in possession of
the land having residential houses since a long period of time. In the year 2009,
an action was initiated under the Assam Public Premises (Eviction of
Unauthorized Occupation) Act, 1971 for eviction of the petitioners and notices
were issued on 15.09.2009. The said action was however the subject matter of
challenge in a writ petition which was instituted before this Court and registered
as WP(C)/4275/2009. This Court, after hearing the parties had passed an order
dated 02.09.2014 interfering with the aforesaid action and had set aside the
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proceeding. The primary consideration of this Court was that the area in
question was not within the definition of "Public Premises" under the Act of
1971. An area of land of 35 Bighas out of the aforesaid plot was ultimately
purchased by the respondent no. 8 vide a registered Sale Deed on 02.08.2011.
It is the contention of the petitioners that such purchase was done by the
respondent no. 8 being fully aware of the encumbrances on the land and those
were in fact the conditions of the purchase. Nonetheless, symbolic possession
was handed over. On 02.02.2021, the petitioners alleged that a large numbers
of persons including police personnel led by the respondent nos. 4 to 7 had
entered into the land and had handed over 2 Bighas of land to the respondent
no. 8 and accordingly, the present petition was filed. This Court vide order dated
05.04.2021 while issuing notice had directed maintenance of status quo.
3. I have heard Shri S. Kataki, learned counsel for the petitioners. I have also
heard Shri N. Das, learned State Counsel, Ms. S. Nath, learned counsel for the
respondent no. 4 and Shri H. Buragohain, learned counsel for the respondent
no. 8. Both the respondent nos. 4 and 8 have filed the affidavit-in-opposition
followed by rejoinder affidavits by the petitioners.
4. Shri Kataki, the learned counsel has candidly admitted that the petitioners
are only the possessors of the land in question which is a private plot of land
and without following the due process of law, they cannot be evicted. He has
submitted that though a move to requisition the land was made in the year
1976, the same was de-requisitioned in the year 1999 and accordingly, the land
had vested back to the earlier owner and the status of the land was reverted to
be private land owned by the earlier owner. He has also drawn the attention of
this Court to the Sale Deed dated 02.08.2011 which contains specific conditions
that the purchase was made with encumbrance and only symbolic possession
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was handed over. He has submitted that the impugned action taken by the
respondent nos. 4 to 7 on 02.02.2021 is absolutely illegal and not backed by
any law. He has submitted that there cannot be any forceful eviction without
following the due process of law. He has reiterated that there were no orders by
any lawful authority not to talk about any Court permitting for such eviction.
5. By drawing the attention of this Court to the relief prayed for in this
petition, the learned counsel has submitted that apart from the petitioner nos. 2
to 5, there are in total 216 members of the petitioner no.1 and there is a
genuine apprehension of further eviction and accordingly the writ petition was
instituted.
6. Relying upon the case of the Constitution Bench of the Hon'ble Supreme
court in the case of State of Madhya Pradesh vs. Bhailal Bhai reported in
AIR 1964
SC 1006, the learned counsel has submitted that it has been settled that a writ
petition can be moved even on a bona fide apprehension. He has submitted that
the overt act of the respondent nos. 4 to 7 done on 02.02.2021 would amount
to a bona fide apprehension and therefore, this writ petition was filed in which
notice was issued and an order of status quo was passed. It is submitted that
the petitioners are still in occupation of the land.
7. Shri Kataki, the learned counsel has also informed this Court that in the
meantime, the respondent no. 8 has instituted Title Suit No. 479/2023 in the
learned Court of the Civil Judge (Sr. Division) No. 1 Kamrup (M) for, amongst
others, declaration of right, title and interest and recovery of khas possession
including eviction and the present petitioners are contesting the suit. He has
submitted that unless the inter se rights of the respective parties are
determined by the appropriate Civil Court, the petitioners cannot be forcefully
Page No.# 7/14
evicted from the land in question.
8. Shri N. Das, learned State Counsel has however raised a preliminary
objection on the maintainability of the writ petition by contending that the
petitioner no. 1 - Association is not a registered Association and therefore, there
is a legal bar for institution of the present case. He has also submitted that since
admittedly a suit has been filed which is pending, the present writ petition has
in fact become infructuous and is liable to be dismissed. He has however
candidly admitted that the State has not filed any affidavit-in-opposition.
9. Ms. S. Nath, learned counsel for the respondent no. 4 has submitted that
the affidavit-in-opposition has been filed by her client on 05.09.2025. She has
justified the action taken on 02.02.2021 as it was done by following the due
process of law upon an application for mutation by the respondent no. 8. She
has clarified that since presently the respondent no. 4 is under suspension,
there was no access to the official documents and therefore, the relevant
documents could not be annexed to the affidavit-in-opposition. She has however
justified the action taken on 02.02.2021 and has prayed for dismissal of the writ
petition.
10. Shri H. Buragohain, learned counsel for the respondent no. 8 has
endorsed the submissions made by the learned State Counsel and has objected
to the maintainability of the writ petition. He has specifically submitted that the
petitioner no. 1 - Association has 216 members and at the time of institution of
the present writ petition, the petitioner no.1 - Association was not having any
valid registration. As regards the rest of the petitioner nos. 2 to 5, it has been
contended that they have joined the petition on the strength of being members
of the Association and have not espoused their individual cause of action. He
has also contended that once de-requisition was done in the year 1999, the land
Page No.# 8/14
stands vested back upon the owner in its original status and in this regard he
has drawn the attention of this Court to Section 8 (1) of the Act, 1964. He has
also informed that this writ petition which was instituted on 24.03.2021 is in fact
a counter blast to the FIR lodged by the respondent no. 8 on 20.03.2021. It is
submitted that 3 (three) of the present petitioners were made accused in the
said FIR and based upon the same, Sessions (LG) Case No. 100/2021 has been
registered and is presently pending before the learned Court of the Addl.
Sessions Judge No. 1, Kamrup (M). He has also admitted of instituting the
aforesaid Title Suit No. 479/2023 in which the petitioners have entered
appearance and are contesting. The learned counsel has however raised a
serious apprehension that because of the order of status quo passed by this
Court, the present petitioners are taking advantage and changing the nature
and character of the suit and also creating 3 rd party rights. He has also informed
that though an Injunction application being Misc (J) case No. 786/2023 under
Order 39 Rule 1 and 2 of the CPC has been filed in the pending Title Suit for
restraining the defendants to change the nature and character of the suit, the
same has not been able to be considered in the proper perspective in view of
the continuation of the status quo order passed in the present proceeding. He
has submitted that the petitioners are taking advantage of their own wrong and
accordingly the writ petition is liable to be dismissed.
11. Shri Kataki, the learned counsel for the petitioner, in his rejoinder has
clarified that the objection regarding registration of the petitioner no.1 -
Association would not be a valid objection in view of the fact that the
Association was already registered and at that time of institution of the writ
petition, the application for renewal of the registration was pending and this
statement was candidly disclosed in the writ petition. By drawing the attention
Page No.# 9/14
of this Court to the affidavit-in-reply dated 13.10.2025, he has submitted that in
the meantime, the registration has been renewed and it clearly appears from
the said renewal that the petitioner no. 1 was enjoying the status of a registered
Association. He has otherwise submitted the aspect of registration would not be
an absolute bar for adjudication of an issue which involves violation of the
fundamental rights of the petitioners. In this regard, he has relied upon a
judgment of the Hon'ble Supreme Court in the case of Akhil Bharatiya Soshit
Karamchari Sangh (Railway) vs. Union of India reported in AIR 1981 SC
298 wherein it has been laid down that even an unrecognized Association can
approach a Writ Court.
12. The rival submissions have been duly considered and the materials placed
before this Court have been carefully examined.
13. The undisputed facts which emerge from the materials on record is that
the present writ petition pertains to an area of 2 Bighas which is a part of a
larger plot of 50 Bighas which was requisitioned in the year 1976 under the Act
of 1964. Though the purpose of such requisition was for construction of a
Helipad at Beltola, Guwahati, there was a change in the policy which led to de-
requisition of the land vide an order dated 20.12.1999 passed by the Deputy
Commissioner, Kamrup. On such derequisition, the land had vested back to the
earlier owner. As regards the submission made on behalf of the respondent no.
8 regarding Section 8 of the Act of 1964, it is seen that such vesting of land has
to be in the a good condition as the land was. However, it transpires that the
respondent no. 8 came to the picture only by a purchase of the land in the year
2011 vide a deed registered on 02.08.2011. This Court has also noticed that
such transfer of land was on the condition that the purchase was made along
with encumbrance and only the symbolic possession was handed over. Be that
Page No.# 10/14
as it may, from the order dated 02.09.2014 passed by this Court in
WP(C)/4275/2009 whereby the proceeding under the Public Premises Act, 1971
was interfered and set aside, it would fortify the position that the nature of the
land is not public land but private land.
14. The cause of action espoused in this present petition is with a situation
which occurred on 02.02.2021. It is the allegation that the respondent nos. 4 to
7 had forcefully entered the land and handed over 2 Bighas to the respondent
no. 8.
15. The aforesaid action does not appear to be backed by any mandate of
law. There is nothing placed on record to show that such an action was either in
compliance of any order of the Court or any lawful authority to make such
eviction. Though the status of the petitioners appear to be mere possessors of
the land, any eviction from private land can be removed only by following the
due process of law. Admittedly, a Title Suit No. 479/2023 along with the
injunction petition is pending for consideration before the learned Civil Court.
Additionally, the being Sessions (LG) Case No. 100/2021 under the Assam Land
Grabbing Act is also pending before the appropriate Court.
16. On the issue of the objection raised by the learned counsel for the
respondents on the aspect of registration / non registration of the petitioner
no.1 Association, this Court is of the opinion that the powers exercised by a Writ
Court being plenary in nature whereby the ultimate objective is to ensure that
justice is done, such objection can be treated to be technical objection only. This
Court, however hastens to add that if the cause of action is directly connected
with such aspect of registration / non registration, the same can be an issue for
adjudication. However, in cases where the Association espouses the cause for its
members, such technical objection may not be a valid objection for adjudication
Page No.# 11/14
of the actual issue before this Court. This Court has also noted that apart from
the petitioner no. 1 - Association, there are 4 other petitioners who are
members of the petitioner no. 1 - Association and are also affected by the
impugned action of 02.02.2021. In the case of Akhil Bharatiya Soshit
Karamchari Sangh (supra), the following observations were made by the
Hon'ble Supreme Court.
"62. A technical point is taken in the counter-affidavit that Petitioner 1 is
an unrecognised association and that, therefore, the petitioner to that
extent, is not sustainable. It has to be overruled. Whether the petitioners
belong to a recognised union or not, the fact remains that a large body of
persons with a common grievance exists and they have approached this
Court under Article 32. Our current processual jurisprudence is not of
individualistic Anglo-Indian mould. It is broad-based and people-oriented,
and envisions access to justice through "class actions", "public interest
litigation" and "representative proceedings". Indeed, little Indians in large
numbers seeking remedies in courts through collective proceedings,
instead of being driven to an expensive plurality of litigations, is an
affirmation of participative justice in our democracy. We have no
hesitation in holding that the narrow concept of "cause of action" and
"person aggrieved" and individual litigation is becoming obsolescent in
some jurisdictions. It must fairly be stated that the learned Attorney-
General has taken no objection to a non-recognised association
maintaining the writ petitions."
17. This Court has also noted the settled position of law as explained by the
Constitution Bench of the Hon'ble Supreme Court in the case of Bhailal Bhai
(supra), that a writ petition can be moved even on an apprehension. For ready
reference, the relevant observations are extracted herein below:
"15. We see no reason to think that the High Courts have not got this
power. If a right has been infringed - whether a fundamental right or a
statutory right - and the aggrieved party comes to the Court for
enforcement of the right it will not be giving complete relief if the Court
merely declares the existence of such right or the fact that that existing
Page No.# 12/14
right has been infringed. Where there has been only a threat to infringe
the right, an order commanding the Government or other statutory
authority not to take the action contemplated would be sufficient. It has
been held by this Court that where there has been a threat only and the
right has not been actually infringed an application under Art. 226 would
lie and the courts would give necessary relief by making an order in the
nature of injunction. It will hardly be reasonable to say that while the
Court will grant relief by such command in the nature of an order of
injunction where the invasion of a right has been merely threatened the
court must still refuse, where the right has been actually invaded, to give
the consequential relief and content itself with merely a declaration that
the right exists and has been invaded or with merely quashing the illegal
order made."
18. The aforesaid view was reiterated by the Hon'ble Supreme court in the
case of SMD Kiran Pasha vs. State of Andhra Pradesh reported in (1990)
1 SCC 328 in which the following observations have been made
"14. ...The question is at what stage the right can be enforced? Does a
citizen have to wait till the right is infringed? Is there no way of
enforcement of the right before it is actually infringed? Can the obligation
or compulsion on the part of the State to observe the right be made
effective only after the right is violated or in other words can there be
enforcement of a right to life and personal liberty before it is actually
infringed? What remedy will be left to a person when his right to life is
violated? When a right is yet to be violated, but is threatened with
violation can the citizen move the court for protection of the right? The
protection of the right is to be distinguished from its restoration or
remedy after violation. When right to personal liberty is guaranteed and
the rest of the society, including the State, is compelled or obligated not
to violate that right, and if someone has threatened to violate it or its
violation is imminent, and the person whose right is so threatened or its
violation so imminent resorts to Article 226 of the Constitution, could not
the court protect observance of his right by restraining those who
threatened to violate it until the court examines the legality of the action?
Resort to Article 226 after the right to personal liberty is already violated
is different from the pre-violation protection. Post-violation resort to
Article 226 is for remedy against violation and for restoration of the right,
while pre-violation protection is by compelling observance of the
obligation or compulsion under law not to infringe the right by all those
who are so obligated or compelled. To surrender and apply for a writ of
Page No.# 13/14
habeas corpus is a post-violation remedy for restoration of the right which
is not the same as restraining potential violators in case of threatened
violation of the right. The question may arise what precisely may amount
to threat or imminence of violation. Law surely cannot take action for
internal thoughts but can act only after overt acts. If overt acts towards
violation have already been done and the same has come to the
knowledge of the person threatened with that violation and he
approaches the court under Article 226 giving sufficient particulars of
proximate actions as would imminently lead to violation of right, should
not the court call upon those alleged to have taken those steps to appear
and show cause why they should not be restrained from violating that
right? Instead of doing so would it be the proper course to be adopted to
tell the petitioner that the court cannot take any action towards
preventive justice until his right is actually violated whereafter alone he
could petition for a writ of habeas corpus? ...
19. Be that as it may, the settled position of law is that a proceeding for
removal of encroachment over private land can be done only by following the
due process of law. It clearly appears that the action taken on 02.02.2021 was
not preceded by any due process of law. The respondent no. 4 in his affidavit
filed on 05.09.2025 has made a submission that the law was followed. However,
no documents have been enclosed to the affidavit with the explanation that at
the time of filing the affidavit, the said respondent was under suspension and
was not having access to the documents. The State has not filed any affidavit
and no records have been produced even to suggest that the due process of law
was followed before adverting to the action taken on 02.02.2021.
20. When the law prescribes a process for a particular action to be taken, that
process cannot be bypassed. At this stage, it would be apt to refer and rely to
the observations of the Hon'ble Privy Council in the landmark case of Nazir
Ahmad Vs. the King Emperor reported in AIR 1936 PC 253 (II) wherein
the following observations were made-
"... The rule which applies is a different and not less well recognized rule,
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namely, that where a power is given to do a certain thing in a certain way
the thing must be done in that way or not at all. Other methods of
performance are necessarily forbidden. ..."
21. Under the aforesaid facts and circumstances, this Court has no other
option but to come to a conclusion that the action taken on 02.02.2021 was not
done by following the due process of law and is accordingly declared to be
illegal and set aside.
22. At the same time, the rights which have vested upon the respondent no. 8
by virtue of the unchallenged Sale Deed dated 02.08.2011 cannot be ignored or
overlooked. In fact the said respondent no. 8 has instituted a Title Suit as
well as a proceeding under the Land Grabbing Act which are going on.
23. While this Court has interfered with the action taken on 02.02.2021, it is
made clear that the aforesaid Title Suit and the proceeding under the Land
Grabbing Act be proceeded with expeditiously and in accordance with law and
following the consequence thereof, the logical steps may be taken. It is however
made clear that without there being any order passed by the authorities vested
with law, the eviction of the petitioners cannot be done.
24. It is also made clear that the present order has been passed qua the
impugned action dated 02.02.2021 and will not have any bearing on the inter
se merits of the respective parties contesting the Title Suit and the proceeding
under the Land Grabbing Act.
25. Writ petition is accordingly allowed in the manner indicated above. Interim
order stands merged with the final order.
JUDGE
Comparing Assistant
