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2009 DIGILAW 102 (GAU)

Champa Basfor v. State of Assam

2009-02-12

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The Petitioners who are admittedly in occupation of Govt. land have filed this writ petition with a prayer for allotment of the particular land and/or provide them alternative plot of land extending protection as the members of the Scheduled Caste community. Further prayer made in the writ petition is for payment of compensation to the time of Rs. 2,30,000/- for the alleged forcible eviction from the land in question. 2. Shortly stated, the facts leading to filing of the instant writ petition are that the Petitioners who belong to Scheduled Caste community were in occupation of 1 Katha 10 Lechas of Govt. land covered by Touzi No. 43, Dag No. 1097 in Ward No. 4 of Kharupetia Town. According to them they came in occupation of the land after clearing jungles etc. and developing the land. Further claim is that they had been living in the land with 17 family members. On 11.06.07 at about 9:00 P.M., the Respondents No. 8, 9, 10 and 11 came to the land with an eviction party and evicted the Petitioners from their house and also demolished their house. Further claim of the Petitioners is that some other constructions and plantations were also destroyed. At no point of time the Petitioners were given any notice of such eviction. The Petitioners lodged an FIR dated 15.06.07. It is the claim of the Petitioners that their civil right has been violated giving a complete goodbye to the principles of natural justice. 3. According to the Petitioners, the aforesaid act on the part of the Respondents has violated the provisions of Scheduled Caste and Scheduled Tribes (Prevention and Atrocities) Act, 1989 and Rules framed thereunder. Referring to the Land Policy, 1989 adopted by the Govt. of Assam, the Petitioners have claimed allotment of the land in favour of them. 4. The Respondents have filed their counter affidavits denying the contentions raised in this writ petition. According to them, the Petitioners have been lawfully evicted from the Govt. land and that the Petitioners and others were allowed time to remove their belongings. It has been denied that their has been any violation of the land policy of the Govt. 4. The Respondents have filed their counter affidavits denying the contentions raised in this writ petition. According to them, the Petitioners have been lawfully evicted from the Govt. land and that the Petitioners and others were allowed time to remove their belongings. It has been denied that their has been any violation of the land policy of the Govt. In the counter affidavit filed by the Respondent No. 3, it has been stated that the particular plot of land was allotted to Kharupetia Town Committee way back in 1970 which is prior to the last settlement operation. In the Chitha, the particular land has been mentioned as reserved Govt. land. The land was de-reserved and allotted to Kharupetia Town Committee vide Govt. letter No. RSG 30/ 62/38 dated 19.01.1970. 5. Further statement made in the said affidavit is that the Petitioners applied to the ASEB authority for electricity connection only on 15th March, 2007 after eviction orders against them had been issued on 26.12.06 and 05.02.07. In the affidavit it has been denied that due procedure towards eviction of the Petitioners was not followed. All the allegations regarding the alleged atrocities perpetrated to the Petitioners have been denied. As regard the police case filed by the Petitioners, it has been stated that the case is under investigation. In paragraph-15 of the counter affidavit eviction case No. 20/2006- 07 has been mentioned and it has been stated that eviction notice was duly served on 08.06.07 and as a token of acceptance of the same, the Petitioner No. 2 put his left thumb impression on the office copy of the notice. It has further been stated that the Petitioner is a Govt. employee of the Health Department and presently residing in Govt. quarter. 6. The Petitioners in their reply affidavit reiterated the contentions raised in the writ petition. However, in the counter affidavit filed by the Respondent Nos. 6 to 10, the contentions raised in the writ petition have been denied. In the said affidavit the details relating to the land have been stated. It has been stated that the land was allotted to the Kharupetia Town Committee and due notice of eviction was served on the Petitioner and that eviction process was carried out in accordance with Rule 18 (2) of the settlement Rules under Assam Land and Revenue Regulation, 1886. 7. I have heard Mr. B.B. Narzari, learned Sr. It has been stated that the land was allotted to the Kharupetia Town Committee and due notice of eviction was served on the Petitioner and that eviction process was carried out in accordance with Rule 18 (2) of the settlement Rules under Assam Land and Revenue Regulation, 1886. 7. I have heard Mr. B.B. Narzari, learned Sr. Counsel assisted by Mr. S. Chauhan, learned Counsel for the Petitioners as well as Mr. A.B. Choudhury, learned Sr. Counsel assisted by Ms. R. Chokraborty, learned State Counsel representing all the Respondents. I have also gone through the materials on record and have given my anxious consideration to the same. It is an admitted position that the Petitioners were in occupation of the Govt. land and thus they did not have any indefeasible right to occupy the same indefinitely. It is also an admitted position that the land in question was allotted to Kharupetia Town Committee way back in 1970. According to the Petitioners they having occupied the land, they are entitled to get allotment of the same as per Clause 16 of the Land Policy of 1989 adopted by the Govt. of Assam. Clause 16 speaks of specific provision for Scheduled Caste and Scheduled Tribe family. Clause 16.3 speaks of settlement of Govt. land under occupation of Scheduled Castes and Scheduled Tribes landless eligible persons occupying the Govt. land on the condition that the land is not otherwise reserved for any specific purpose. In the instant case, the land was allotted to Kharupetia Town Committee and thus it was not a free Govt. land. The land having been allotted to the said Committee, the Petitioners were mere encroachers to the same. Clause 15 of the land policy makes provision for eviction of encroachers from Govt. land including the reserved land, who are not eligible to get settlement of the land as per land policy. 8. In the instant case, due notice was given to the Petitioners towards eviction and the duly received the same. It was only thereafter they were evicted from the Govt. land following due procedure in presence of Magistrate and police personnel. The details of eviction procedure followed by the Respondents as reflected in the counter affidavits have not been denied by the Petitioners. The Petitioners are Govt. employees and as per the counter affidavit they are in occupation of the Govt. quarters. land following due procedure in presence of Magistrate and police personnel. The details of eviction procedure followed by the Respondents as reflected in the counter affidavits have not been denied by the Petitioners. The Petitioners are Govt. employees and as per the counter affidavit they are in occupation of the Govt. quarters. Thus, they cannot be said to be in the category of the persons for whom the particular land policy was adopted. They being the Govt. employees belong to the privileged class unlike the Scheduled Caste and Scheduled Tribes landless people for whom the specific provisions have been made under the land policy of 1989. 9. As regards the atrocities perpetrated to the Petitioners, they lodged an FIR and as per the stand of the Respondents the matter is under investigation. During the course of hearing nothing could be said by either parties as to the stage of said investigation. The Writ Court exercising its jurisdiction under Article 226 of the Constitution of India cannot go into the disputed questions of facts as has been raised in the writ petition regarding the purported atrocities meted out to the Petitioners. That aspect of the matter shall be gone into by the investigating agency. As regards the prayer of the Petitioners for allotment of the land or any alternative plot of land, no mandamus can be issued to the Respondents to act in a particular manner. There is no question of issuing any direction to the Respondents to allot the land in question in favour of the Petitioners as the same was already allotted way back in 1970 to Kharupetia Town Committee. As to the entitlement of the Petitioners to get settlement of another plot of land, that will be entirely to the sound discretion of the authority and no opinion is expressed in this regard. 10. For all the aforesaid reasons, while not granting the relief to the Petitioners, it hereby provided that the authority will carry out and complete the investigation which they have already initiated in respect of the FIR lodged by the Petitioners as expeditiously as possible. 11. Subject to the aforesaid observations, the writ petition is dismissed. There shall be no order as to costs. Petition dismissed