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2007 DIGILAW 488 (GAU)

Bijoyananda Chowdhury v. State of Assam

2007-07-27

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2007
JUDGMENT B.P. Katakey, J. 1. The petitioner claiming to be a public spirited person filed the writ petition, which has been registered as PIL No. 8/2001, for directing the respondent authorities to provide the daily basic amenities to the inmates of different jails in the State of Assam, which includes food, medicines etc. and also challenging the action of the State respondents in settling part of the land kept reserved for the Guwahati Jail, with the private respondents. 2. The writ Petition (C) No. 4551/2006 has been filed by the Purbattor Udyog Handicraft Co-operative Societies Limited, respondent No. 12 in PIL No. 8/2001 and one of the settlement holders of the part of the land which was previously kept reserved for Guwahati Jail, challenging the order dated 30.8.2006 passed by the Addl. Chief Secretary to the Govt. of Assam, Revenue Department, canceling the order of settlement made in their favour on 13.9.2005, basically on the ground of violation of the principles of natural justice. Since the question of settlement of land, originally kept reserved for Guwahati Jail, is the issue in the PIL No. 8/2001 and WP(C) No. 4551/2006, both the petitions are taken up together for hearing and disposal. 3. Heard Mr. B. Chakravorty, learned Counsel appearing for the petitioner in PIL No. 8/2001, Mr. N. Dutta, learned Senior counsel appearing on behalf of the petitioner in WP(C) No. 4551/2006, who is also the respondent No. 12 in the PIL and Mrs. B. Goyal, learned State counsel appearing for the State respondents. 4. The petitioner in PIL, though has stated that, the basic amenities were not made available to the inmates of different jails in the State of Assam, apart from challenging the action of the State respondents in settling the land originally kept reserved for Guwahati jail with other private parties, during the course of arguments, the learned Counsel for the petitioner in PIL has advanced his arguments basically challenging the settlement of land to the respondents. However, we have also considered the allegations of the petitioner made in PIL relating to non availability of the basic amenities to the inmates of different jails in the State of Assam. However, we have also considered the allegations of the petitioner made in PIL relating to non availability of the basic amenities to the inmates of different jails in the State of Assam. The allegation in the PIL is that almost all the jails in Assam are over crowded as the number of inmates is more than its capacity and that the minimum basic requirements are not made available to the inmates of the jails, to which they are entitled under the Assam Jail Manual. According to the petitioner, there was no proper sanitation and the food to which the inmates are entitled, have not been supplied. 5. The case of the petitioner in WP(C) No. 4551/2006 is that, it being a registered cooperative society, filed an application before the competent authority for settlement of land on the basis of which, an order of settlement was passed by the Govt. on 13.9.2005, settling the plot of land measuring 3 bighas, covered by Dag No. 1968, Sahar Guwahati Pt-II under Guwahati Mouza subject to payment of 30% of land value fixed by the authority, as premium. According to the petitioner, the premium was paid and its name has been duly recorded in the revenue records as a settlement holder in respect of the said land. It is the further case of the petitioner that on 30.8.2006 the Addl. Chief Secretary to the Govt. of Assam, Revenue Department without issuing any notice and without affording any opportunity of being heard, cancelled the order of settlement dated 13.9.2005 purportedly on the ground that such order of settlement was issued after the interim order dated 28.2.2001 was passed by this Court in PIL No. 8/2001 prohibiting further settlement of land originally allotted to the Guwahati Jail. It is the case of the petitioner that the portion of the land measuring 10 bighas, originally kept reserved for Guwahati Jail was resumed by the Govt. and thereafter allotted in favour of a college, namely, KC Das Commerce College, but subsequently the said order of allotment in favour of the said college was cancelled and part of the said land, being 3 bighas, was settled with the petitioner. Therefore, according to the petitioner, after resumption of the land by the Govt. and thereafter allotted in favour of a college, namely, KC Das Commerce College, but subsequently the said order of allotment in favour of the said college was cancelled and part of the said land, being 3 bighas, was settled with the petitioner. Therefore, according to the petitioner, after resumption of the land by the Govt. on 29.12.87 from the District Jail, Guwahati, the land ceased to be allotted to the District Jail, Guwahati and hence the interim order dated 28.2.2001 passed in PIL No. 8/2001 prohibiting further allotment/settlement of the jail land to anyone would have no effect on the order of settlement made in favour of the petitioner and therefore, the purported ground taken in canceling the order of settlement is nonest. The further case of the petitioner is that it is being an admitted position of fact, as reflected in the order dated 30.8.2006, that the same has been passed without issuing any notice and without affording any opportunity of being heard, such order of cancellation cannot stand in the eye of law being in violation of the principles of natural justice, as the right accrued in favour of the petitioner is sought to be taken away without notice and without hearing. 6. This Court while issuing notice in PIL No. 8/2001 vide order dated 28.2.2001 had passed an interim order directing the State respondents not to further allot any jail land located in different districts, towns and cities of Assam including Guwahati to any person, with a further direction not to allow the settlement holders to make any constructions over the land already settled in their favour. The Inspector General of Prisons on receipt of the notice filed an affidavit on 8.5.2001, in the PIL, while denying the allegation in the PIL that the basic amenities were not made available to the inmates of the jail, however, has admitted that most of the jails in Assam are overcrowded as the number of convicts or under-trials in the jails are more than their capacity. The Inspector General of prisons in the said affidavit has also stated that parts of some land kept reserved for certain jails were in fact allotted to some outside agencies/persons by the Govt. of Assam. The Inspector General of prisons in the said affidavit has also stated that parts of some land kept reserved for certain jails were in fact allotted to some outside agencies/persons by the Govt. of Assam. It has further been specifically stated in the said affidavit that some of the recommendations made by the Assam Jail Reforms Commission (1979-80) relating to the appointments of whole time doctors and pharmacists; improvement of prisoner's diet; clothing and bedding; simplification and liberation of leave and emergency release system of the prisoners; rationalization of remission system of convicted prisoners; and appointment of prison welfare officers have been implemented and the basic amenities like sanitation, water supply and electricity were improved under the Eighth Finance Commission Award. The said affidavit further discloses that all efforts are made by the authorities for proper maintenance of the jails in the State of Assam and to provide the basic amenities, medical assistance etc. in spite of there being financial constraints. The petitioner in the PIL has not controverted the statements made by the Inspector General of Prisons in the said affidavit by filing any rejoinder. 7. The Govt. of Assam from time to time issued various instructions relating to clothing and bedding as well as the quantity and quality of the food required to the made available to the inmates of jails in Assam. The petitioner in the PIL has not been able to demonstrate as to how and in what manner such instructions have been violated by the authorities in different jails. There is no factual basis pleaded in the PIL to arrive at a conclusion that the instructions issued by the Govt. of Assam relating to the diet, clothing and bedding, required to be made available to the inmates of the jails in Assam, have been violated. However, since various instructions have been issued by the State of Assam relating to the clothing, bedding and diet to be made available to the inmates of the jail, those naturally have to be followed in letter and spirit, as the inmates of jails cannot be deprived of their right to live with human dignity. 8. Another allegation in the PIL is that during monsoon season there is water logging in the inner wards of the Guwahati Jail. 8. Another allegation in the PIL is that during monsoon season there is water logging in the inner wards of the Guwahati Jail. Such allegation of the petitioner in the PIL has been admitted by the Inspector General of Prisons in his affidavit dated 8.5.2005, stating that because of the development of the surrounding areas of the jail, the entire jail area has become low lying and there is water logging in the inner wards during monsoon and the Govt. considering all relevant aspects of the matter has decided to shift the Guwahati District jail to Bonda where 150 bighas of land has been allotted for the purpose. Admittedly, pursuant to such decision, the jail has not been shifted. 9. Persons lodged in jail, whether as convict or under-trial or otherwise, are not denuded of all the fundamental rights which they otherwise possess. They are not doubt deprived of their right to move freely throughout the territory of India, but their fundamental right guaranteed under Article 21 of the Constitution to live with human dignity, making the basic amenities available, cannot be curtailed. Their existence in the jail cannot be reduced to the animal existence. The authorities are bound to keep the jails in hygienic condition with proper sanitation and the inmates of the jails are to be provided with basic amenities. It is the duty of the authorities to keep the jails free from water logging during the monsoon. The authority cannot shirk its responsibility of doing so on the mere plea that the areas surrounding the jail have been developed, for which the jail land become low lying thereby causing problem of water logging during monsoon. The respondent authorities are, therefore, directed to take all necessary steps to keep the jails in Assam, including the Guwahati District Jail, free from water logging, if such steps have not already been taken. It is needless to say, that the authorities are bound to strictly follow the various instructions issued by them relating to the basic amenities, like food, clothing and bedding, appropriate medical facilities, etc., to the inmates of the jails in Assam. 10. The main contention of the learned Counsel for the petitioner in the PIL is relating to the settlement of land kept reserved for Guwahati jail to other persons or organization or agencies. 10. The main contention of the learned Counsel for the petitioner in the PIL is relating to the settlement of land kept reserved for Guwahati jail to other persons or organization or agencies. The affidavits filed by the Inspector General of Prisons as well as by the Deputy Secretary to the Govt. of Assam, Home (B) Department disclose that the Govt. took the decision to shift the jail from the existing place to a different place and some portion of the land originally kept reserved for Guwahati jail have been settled with some other persons/organizations. The Govt. is the appropriate authority to decide about the requirement of land for the jails. The Court cannot interfere with such decisions of the Govt. in settling the land with other persons which was originally kept reserved for Guwahati jail, unless such action is illegal, arbitrary and against public interest. The petitioner, however, has not been able to demonstrate how such action of the Govt. is illegal, arbitrary or against public interest. It also appears from the affidavit filed by the Deputy Secretary to the Govt. of Assam, Revenue (Settlement) Department in WP(C) No. 4551/2006 that though certain land was kept reserved for Guwahati jail, a portion of it was resumed by the Govt. in Revenue Department on 29.12.1987. That being the position, we are unable to interfere with the various orders settling the part of the land, in favour of private persons/organizations/agencies, which was originally kept reserved for Guwahati jail. 10. AS noticed above, the grievance of the petitioner in WP(C) 4551/2006 is that an order of settlement made in its favour settling 3 bighas of land on 13.9.2005 has been cancelled by the Addl. Chief Secretary vide order dated 30.8.2006 without issuing any notice and without giving any opportunity of being heard. 11. From the order impugned in the said writ petition, i.e. order dated 30.8.2006, it is evident that no such notice was issued to the petitioner before passing such order of cancellation of settlement though the Deputy Secretary in the affidavit dated 7.3.2007 has admitted that the order of settlement can be cancelled after providing an opportunity of hearing to the aggrieved persons. 12. 12. There is no dispute to the fact that the order of settlement was passed on 13.9.2005 in favour of the petitioner settling an area of 3 bighas of land and the petitioner pursuant to such order of settlement has paid the premium fixed by the authority. Even the revenue records have been corrected accordingly. A right has been accrued on the petitioner in WP(C) No. 4551/2006 by virtue of such order of allotment and on payment of the premium fixed by the Govt. and such right cannot be taken away without hearing the petitioner and without issuing any notice, as has been done in the instant case by the Addl. Chief Secretary, while cancelling the settlement made in favour of the petitioner. 13. That being the position, the order dated 30.8.2006 cannot stand the scrutiny of law, the same having been passed in violation of the principles of natural justice. Hence the order dated 30.8.2006 is set aside. 14. It is, however, open to the authority concerned to issue notice to the petitioner, in the event such authority proposes to cancel the order of settlement made in its favour and pass necessary order thereafter, in accordance with law. 15. The PIL No. 8/2001 and WP(C) No. 4551/2006 are accordingly disposed of with the aforesaid directions and observations. No costs.