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2008 DIGILAW 228 (GAU)

Uday Kumar Das v. State of Assam

2008-03-18

T.NANDAKUMAR SINGH

body2008
JUDGMENT T. Nandakumar Singh, J. 1. Heard Mr. A.K. Bhattacharjee, learned senior Counsel assisted by Mr. R. Dey for the Petitioner as well as Mr. J. Handique, learned Counsel for the Respondents. 2. The only main thrust in the present writ petition for assailing the impugned order/letter dated 4.1.06 is that it was passed/issued by the Commissioner and Secretary to the Govt., of Assam, Environment and Forest arbitrarily and capriciously by violating the principles of natural justice. 3. A short fact, in a nutshell leading to the filing of the present writ petition is required to be noted. The Petitioner and 5 others had earlier approached this Court by filing a joint writ petition being W.P.(C) No. 4034/2002 assailing the orders of the State Respondents for evicting the Petitioner and others from their respective patta lands alleging that the patta lands of the Petitioners are within Hengrabari Reserve Forest as declared in 1992 without following the due process of law and also in that joint writ petition the Petitioners had claimed compensation for illegally evicting them from their patta lands. 4. The State Respondents also filed affidavit in opposition in the earlier writ petition i.e. W.P.(C) No. 4034/2002. Ultimately this Court after threadbare discussion of the case of the Petitioners as well as that of the State Respondents had finally passed judgment and order dated 10.5.2004, wherein this Court in a very clear term held that the Petitioners were in possession of Patta land and they had been evicted from their patta lands without following the due process of law and also further held that the said patta land of the present Petitioner is not within Hengrabari Reserved Forest as declared in 1992. In the said earlier judgment and order dated 10.5.04 passed in W.P.(C) No. 4034/2002, the learned Single Judge had made a clear finding that the Petitioner was in possession of his said patta land and had directed the Petitioners to approach the authorities concerned for payment of compensation. For easy reference, the relevant portions of the judgment and order dated 10.5.04 passed in W.P.(C) No. 4034/2002 are quoted hereunder: Para 3. The facts lying in a short compass are that the Petitioners claim to be the owners in possession of the land involved and as described in the schedule to the writ petition. For easy reference, the relevant portions of the judgment and order dated 10.5.04 passed in W.P.(C) No. 4034/2002 are quoted hereunder: Para 3. The facts lying in a short compass are that the Petitioners claim to be the owners in possession of the land involved and as described in the schedule to the writ petition. The particulars of the different plots of land relatable to the Petitioners are: Petitioner Nos. 1, 2 and 3. A plot of land measuring 3 bighas, 4 kathas and 2 lechas covered by K.P. Patta No. 11 (Old)/1(New) Dag Nos. 21 and 26 (old)/214 and 262 (New) of village Madgharia Nonke, under Mouza Beltola and is bounded by: North: Forest South: Rupam Mikir West: Chandra Shekhar Kakati East: Parashu Ram Kakati Petitioner No. 4 A plot of land measuring 2 bighas, 2 kathas, 5 lechas covered by A.P. No. 14 and Dag No. 27 of village Madgharia Nonke, under Mouza Beltola and its bounded by: North: Uday Mikir (now public cremation ground) South: Self (RupamMikir) West: Chandra Sekhar Kakati East: Balo Ram Deka Petitioner No. 5. A plot of land measuring 5 bighas, 2 kathas 14 lechas covered by Patta No. 14 and Dag No. 20 of village Madgharia Nonke, under Mouza Beltola and is bounded by: North: Petitioner Nos. 1 and 3 South: Sarkari land West: Jani Ram Mikir East: Uday Das Petitioner No. 6 (the present writ Petitioner) A plot of land measuring 3 kathas, 10 leachas covered by A.P. No. 9 and Dag No. 29 of village Madgharia Nonke, under Mouza Beltola and is bounded by: North: Rongman Mikir South: Road West: Chandra Shekhar Kakati East: Biju Mikir The Petitioner Nos. 1, 2 and 3 are the owners of a bigger plot of land measuring 6 B, 4 K and 12 Ls covered by K.P. Patta No. 11 (Old), 1 (New) Dag Nos. 21 and 26 (Old) 214 and 262 (new) of village Madgharia Nonke. The land originally belonged to the father of the Petitioner Nos. 1, 2 and 3 Late Kamal Mikir. Their names after his demise were recorded as the pattadars in respect of the said land. They had built their dwelling houses thereon and have been residing there for several years. Para 8. The land originally belonged to the father of the Petitioner Nos. 1, 2 and 3 Late Kamal Mikir. Their names after his demise were recorded as the pattadars in respect of the said land. They had built their dwelling houses thereon and have been residing there for several years. Para 8. Noticing the discrepancies in the stand of the two departments and on a clarification being sought, an additional affidavit was filed by the Deputy Commissioner, Kamrup which indicates that a joint survey of the disputed land, and that of the Hengrabari Reserve Forest had been conducted by the Revenue Department and the Forest Department on various dates which revealed that the land in dispute as per the revenue settlement operation in the year 1964 was covered by Annual Patta in the name of Kamal Mikir and after his death the records were updated by granting mutation in favour of the Petitioner Nos. 1, 2 and 3 and that the land covered by Dag Nos. 20, 26, 27 and 29 of village Madgharia was located out side the boundaries of the Hengrabari Reserve Forest. The statements made in the additional affidavit were supported by contemporaneous official documents. Para 9. The Respondent Nos. 6 to 12 in a separate affidavit duly supported the claim of the Petitioner No. 6 that he had purchased a plot of land measuring 3 K. 10 Ls under Dag No. 29 of Annual Patta No. 9 from their predecessor in interest. Para 14. In this factual premises, the inescapable conclusion is that the action of the Forest Department in evicting the Petitioners from their land is illegal, arbitrary and without any authority of law. No attempt has been made by the Forest Department and rightly so to contest or dispute the stand taken by the Revenue Department on the basis of joint survey. The stand of the Forest Department that the eviction was effected under Section 72(c) of Assam Forest Regulation 1891, in view of above, falls, to the ground. The eviction of the Petitioners by shows of force displays a reckless and irresponsible executive action resulting in untold harassment to the Petitioners and colossal loss to them. There is no denial of the fact that no notice whatsoever had been served on the Petitioners before carrying out the eviction. The eviction of the Petitioners by shows of force displays a reckless and irresponsible executive action resulting in untold harassment to the Petitioners and colossal loss to them. There is no denial of the fact that no notice whatsoever had been served on the Petitioners before carrying out the eviction. The impugned action is thus in violation of the constitutional guarantee preserved under Article 21 of the Constitution of India and has to be adjudged illegal and unconstitutional. Para 15. In view of the clear and categorical stand of the Revenue Department in its affidavit, the contention of Mr. Bora that there still remains a dispute with regard to the identity of the land cannot be upheld. The Petitioners have again rehabilitated themselves on the land. As it stands today, having regard to the pleadings available on records, the land in possession of the Petitioners are their patta land beyond the Hengrabari Reserve Forest as declared in 1992. In that view of the matter the Petitioners possession of the land involved in the present proceeding cannot be disturbed in a summary manner without following the procedure prescribed by law. Para 16. The Petitioners though have prayed for compensation for the loss suffered by them, in absence of adequate materials on record, I am not inclined to adjudicate the said claim. The Petitioners may approach the authorities concerned for providing them appropriate compensation for the loss. Needless to say if the Petitioners register such claim and place adequate materials in support thereof, the concerned authorities would consider the same in accordance with law and take an appropriate decision thereon. 5. The earlier judgment and order of this Court dated 10.5.04 is also available at Annexure-A to the present writ petition. This Court also had given anxious consideration to the earlier judgment and order of this Court dated 10.5.04. After such consideration, this Court is of the considered view that there is a clear finding of this Court that the Petitioner is the pattadar of the said land from where he had been evicted by the State Respondents without following the due process of law on the alleged ground that the said land of the Petitioner was within the Hengrabari Reserved Forest and also that the Petitioner had been directed to approach the concerned authorities for payment of compensation. In compliance with the direction of this Court in the earlier judgment and order dated 10.5.04 passed in W.P.(C) No. 4034/2002, the Petitioner and others had approached the Secretary to the Government of Assam, Environment and Forest Department by filing representation supported by the documents for compensation. A copy of the said representation has been annexed as Annexure-B to the present writ petition. 6. On perusal of the said representation (Annexure-B) to the writ petition, it appears that the representation itself is very exhaustive and well documented. After consideration of the said representation filed by the Petitioner and also after due verification, the State Respondents had come to a finding that a sum of Rs. 11,29,600/- (Rupees eleven lakhs twenty nine thousand six hundred) is payable as compensation to the Petitioner for illegally evicting him from the said land. After such finding, the Under Secretary to the Government of Assam, Environment and Forest Department wrote a number of letters viz letter dated 26.4.05 and 12.5.05 to the Principal Chief Conservator of Forests to submit a proposal for the amount of Rs. 11,29,600/- (Rupees eleven lakhs twenty nine thousand and six hundred) only for payment of compensation to the Petitioner. The Principal Chief Conservator of Forest under his letter dated 18.5.05 submitted a proposal for the said amount of Rs. 11,29,600/- (Rupees eleven lakhs twenty nine thousand and six hundred) for payment of compensation to the Petitioner and the Government of Assam under the letter of the Under Secretary to the Government of Assam, Environment and Forest Department dated 8.7.05 conveyed the sanction of the Government for the said amount of compensation. Ultimately the Government of Assam under the letter of the Secretary to the Government of Assam, Environment and Forest Department dated 10.11.05 directed the Principal Chief Conservator of Forests to disburse the said amount of Rs. 11,29,600/- (Rupees eleven lakhs twenty nine thousand and six hundred) to the Petitioner and accordingly the treasury had been informed. 7. It is the further case of the Petitioner that after all the formalities for payment of the said amount of Rs. 11,29,600/- (Rupees eleven lakhs twenty nine thousand and six hundred) as compensation to the Petitioner had been completed, the Commissioner and Secretary to the Government of Assam, Environment and Forest Department issued the impugned order/letter dated 4.1.06 for keeping the order for payment of compensation to the Petitioner in abeyance. 11,29,600/- (Rupees eleven lakhs twenty nine thousand and six hundred) as compensation to the Petitioner had been completed, the Commissioner and Secretary to the Government of Assam, Environment and Forest Department issued the impugned order/letter dated 4.1.06 for keeping the order for payment of compensation to the Petitioner in abeyance. In Para 40 of the writ petition, the writ Petitioner had specifically pleaded that the impugned order/letter dated 4.1.06 was issued without giving opportunity of being heard to the Petitioner and also it was issued in violation of the principles of natural justice. For easy reference, Para 40 of the writ petition is quoted hereunder: Para 40. That, the Petitioner begs to state and submit that no opportunity of hearing was accorded to the Petitioner prior to issuance of the impugned order dated 4.1.06 more so when the ground of review is not sustainable in the eye of law. The Respondent No. 1 while issuing the impugned order apart from denying a reasonable opportunity of hearing to the Petitioner also failed to take into account that the relevant documents in support of his claim was duly submitted to the appropriate authority by the Petitioner and the Government after satisfying itself as to the authenticity of the documents so submitted, sanctioned the compensation to the Petitioner. The said action on the part of the Respondent No. 1 apart from being arbitrary, illegal, unreasonable is violative of the Principles of Natural Justice, Equity, Good Conscience and Administrative Fair Play and as such, the action of the Respondent authorities concerned is liable to be interfered by the Hon'ble Court. 8. The Respondents filed their joint affidavit. Surprisingly, the Respondents in their joint affidavit had not even denied the assertions of the Petitioner in Para 40 of the writ petition which has been quoted above. In other words, the respondents are not denying the fact that the impugned order/letter dated 4.1.06 was issued in clear violation of the principles of natural justice. 9. In the above background, the unavoidable conclusion would be that the impugned order/letter dated 4.1.06 was issued in clear violation of the principles of natural justice and also arbitrary and unreasonable. 10. For the reasons discussed above, this Court is of the considered view that an interference to the impugned order/letter dated 4.1.06 is called for. Accordingly, the impugned order/letter dated 4.1.06 is set aside and the writ petition is allowed. 10. For the reasons discussed above, this Court is of the considered view that an interference to the impugned order/letter dated 4.1.06 is called for. Accordingly, the impugned order/letter dated 4.1.06 is set aside and the writ petition is allowed. 11. The corollary of this order is that the necessary steps should be taken up by the State Respondents for payment of compensation within a period of 3 months from the date of receipt of the certified copy of this judgment and order.