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1997 DIGILAW 140 (GAU)

Mahanta Raghav Das v. State of Meghalaya

1997-08-04

A.K.PATNAIK

body1997
In this application under Article 226 of the Constitution, the petitioner has prayed for a writ/direction on the respondents not to dispossess or evict Narsingh Akhara (Thakurbari) and its Mahanta, office bearers and other attendants of the Akhara and the tenants and other occupants residing in the houses constructed by the Akhara from the land measuring 77629 1/4 sq.feet under its occupation. 2. The case of the petitioner is that the aforesaid land was allotted to the Narsingh Akhara by the Siem of Mylliem with the sanction of the Chief Commissioner in the year 1876 for holding religious congregation and worship. For more than 100 years, the petitioner has been in possession of the said land and has constructed a temple with the idols of Jagannathji, Radha Krishna. Ram, Lakshman, Sita, Hanuman and a Shivalinga and Salagram and the people in general come to the temple for worship. The further case of the petitioner is that in a portion of the land, constructions have been made and let out to different shop keepers who pay rent to the petitioner and out of the said rent, the temple and its idols are maintained The further case of the petitioner is that the petitioner has been paying rent to the Siem of Mylliem and on 26.4.58, a patta was issued by the said Siem of Mylliem conferring right of occupancy over the said land on the petitioner. A copy of the patta issued by the then Siem of Mylliem Durbar is annexed to the writ petition as Annexure C. The petitioner has further averred in the writ petition that after the Shillong Municipal Board was constituted, the petitioner has been paying house tax, latrine tax, water tax and lighting tax to the Shillong Municipal Board for the houses constructed on the said land. The receipts granted by the Municipality of Shillong have been annexed as Annexure D series. Despite the fact that the petitioner has been in lawful possession of the said land since 1876, a notice dated 28.8.92 was issued by the General Secretary, Durbar, Shnong Qualapatty, Shillong, asking the Head Pandit of Narsingh Akhara to appear at the local Durbar Hall before Executive Committee on 31.8.92 and produce the relevant papers relating to the said temple. Despite the fact that the petitioner has been in lawful possession of the said land since 1876, a notice dated 28.8.92 was issued by the General Secretary, Durbar, Shnong Qualapatty, Shillong, asking the Head Pandit of Narsingh Akhara to appear at the local Durbar Hall before Executive Committee on 31.8.92 and produce the relevant papers relating to the said temple. Due to various difficulties, the Head Pandit incharge of the said temple could not appear before the Durbar on 31.8.92 and thereafter another notice dated 5.9.92 was issued by the General Secretary, Durbar, Shnong Qualapatty, asking the Head Pandit to appear again on a certain date and if he failed to comply with the notice, the Durbar would take necessary action. 3. Ms. K. Yadav. learned counsel for the petitioner contended that the entire-purpose of issuing notices to the representative of the petitioner to appear before the Durbar is to evict the petitioner from the land and this would be evident from the news item in the Shillong Times on 9.9.92. a copy of which has been annexed to the writ petition as Annexure M. She further contended that the petitioner has been in lawful possession of the land in question for more than 100 years and cannot be said to be an encroacher on the said land and thus, the petitioner can not be evicted from the said land by the respondents. 4. It appears from the order sheet that on 17.9.92, this Court issued Rule and the notice of the Rule was made returnable within six weeks. By the said order passed by this Court on 17.9.92, the 3rd, 4th and 5th respondents, namely, Shillong Municipal Board, General Secretary- Durbar, Shnong Qualapatty and the Chief Executive Officer, Shillong Municipal Board were restrained from demolishing the temple, buildings house and any other structures standing on the land measuring 77629 1/4.feet covered by the patta (Annexure C to the petition) and the respondents were further directed not to interfere with the possession and enjoyment of the property within the aforesaid land. Thereafter, notices were issued to respondents and Service Report on respondent Nos. 1 to 5 were received back with the report that the notices were duly served. Despite the said notices, the respondent Nos. 3 to 5 have not appeared. Mr. A. Sarma and Ms. B. Dutta learned counsel, however, appeared on behalf of the respondent Nos. Thereafter, notices were issued to respondents and Service Report on respondent Nos. 1 to 5 were received back with the report that the notices were duly served. Despite the said notices, the respondent Nos. 3 to 5 have not appeared. Mr. A. Sarma and Ms. B. Dutta learned counsel, however, appeared on behalf of the respondent Nos. 1 and 2. 5. On a perusal of the Annexures filed along with the writ petition, I find that the petitioner has been in lawful possession of the land is question and in fact a patta has been issued in favour of the petitioner in respect of the said plot of land measuring 77629 % situated in Garikhanna, Shillong and the petitioner has been paying taxes to the Shillong Municipal Board in respect of the constructions standing thereon. It is therefore, patently clear that the petitioner is not an encroacher in the said land and that the petitioner cannot be evicted from the said land treating the petitioner to be encroacher. In the aforesaid circumstances the impugned ndtices dated 28.8.92 and 5.9.92 issued by the General Secretary, Durbar, Shnong Qualapatty and the notice dated 5,9.92 issued by the Chief Administrative Officer, Shillong Municipal Board, are liable to be quashed. 6. Ms K. Yadav, learned counsel for the petitioner states that the averments made in the writ petition would show that the respondents are taking violent steps to evict the petitioner and they even attempted to use force for the aforesaid purpose. In view of my finding that the petitioner is not an encroacher and that the impugned notices are liable to be quashed, obviously, the respondent Nos.3 to 5 will have to be restrained from evicting the petitioner forcefully from the aforesaid land. 7. In the result. I dispose of this writ petition by quashing the impugned notices dated 28.8.92 and 5.9.92 issued by the General Secretary, Durbar, Shnong Qualapatty and the impugned notice dated 5.9.92 issued by the Chief Executive Officer, Shillong Municipal Board and by directing that the respondent Nos. 3 to 5 will not evict the petitioner by use of force from the land measuring 77629 1/4 sq.feet situated at Garikhanna, Shillong. However, considering the facts and circumstances of the case, the parties shall bear their own costs.