JUDGMENT Heard Mr. N .K, Baruah, learned counsel appearing on behalf of the petitioner. Also heard Mr. B.B. Gogoi, learned Addl, Public Prosecutor, appearing for respondent No. 1 (State of Assam) and Mr. T. J. Mahanta, learned counsel appearing for respondent No.2. 2. By filing this application under Section 482 Cr.P.C. 1973, the petitioner challenges the judgment and order dated 29.7.2009 passed by the learned Sessions Judge, Dhemaji, in Criminal Revision No. 2(1) of 2009. 3. The matter relates to a dispute over possession of a plot of land measuring about 6-1/2 bighas which the petitioner claims to have been cultivating since the year 2000. The said plot of land is admittedly a Government Khas land belonging to the Forest Department of Assam and as such, no patta was issued in favour of any party and there is no objection from the Forest Authorities to the occupation/possession and cultivation and cultivation over the said plot of land in question. The petitioner claims that the said plot of land was purchased for consideration of a sum of Rs.17,000 from the husband of the private respondent No.2. The land in question is bounded by: (i) in the North: land of petitioner and Sri Khirendra Baruah (ii) in the South: land of Sri Mangal Poddar (iii) in the East: Panchayat Road and land of Ajyudha Pegu, and (iv) in the West: land of Ajyudha Pegu. Adjacent to the said plot of land, the petitioner has another plot of land on which he has been residing with his family and cultivating thereon and the said land situates at the northern boundary of the land in question. It is also stated that the petitioner and his family are river erosion affected people and they were allowed by the State Government to settle thereon. In the month of June, 2007, when the petitioner was doing the cultivation on 5 bighas of the said land, a dispute arose between the petitioner and private respondent No. 2 regarding possession and cultivation over the said land. The respondent No.2 lodged a complaint with the Dhemaji police station and on the basis of the said complaint, an enquiry was conducted by the police and accordingly, a report was submitted regarding apprehension of breach of public peace and tranquility due to the dispute over the said land between the petitioner and the private respondent No.2.
The respondent No.2 lodged a complaint with the Dhemaji police station and on the basis of the said complaint, an enquiry was conducted by the police and accordingly, a report was submitted regarding apprehension of breach of public peace and tranquility due to the dispute over the said land between the petitioner and the private respondent No.2. Based on the police report, a proceeding under Section 145 Cr.PC was initiated by the learned Addl. District Magistrate, Dhemaji, and the petitioner and private respondent No.2 were directed to appear before the said Magistrate in connection with Misc. Case No.12M/2007. 4. Both the parties (petitioner and private respondent No.2) contested the case by examining themselves and some witnesses. The learned Addl. District Magistrate, Dhamaji, on coming to a finding that the disputed land entirely belongs to the Forest Department and the same is Government khas land and the private respondent. No.2 is not in continuous possession over the said land, the learned Magistrate being satisfied, vide an order dated 12.1.2009 declared the possession of the disputed land in favour of the present petitioner. However, since the disputed land is a Government khas land belonging to the Forest Department, the learned Addl. District Magistrate, Dhemaji, further directed the Dhemaji Forest Division to take over the disputed land with further direction that till the disputed land is taken over by the Forest Department, it shall remain attached. 5. Against the aforesaid order dated 12.1.2009, the private respondent No. 2 filed a revision petition being Revision Petition No. 2(1)72009 before the court of learned Sessions Judge, Dhemaji. Upon hearing the parties concerned, the learned Sessions Judge, Dhemaji, set aside the order dated 12.1.2008 and allowed the revision petition and also declared the possession of the land in dispute in favour of respondent No. 2 (Smt. Ajyudha Pegu). 6. Against the said order dated 29.7.2009 passed by the learned Sessions Judge, Dhemaji the present petitioner has filled this instant criminal petition. 7. There is no dispute that the land in question is a Government khas land and it belongs to the Forest Department. Mr. Baruah, learned counsel for the petitioner, fairly submits that the petitioner is ready and willing to vacate the portion of land under his possession is ready and willing to vacate the portion of land under his possession whenever the Forest Department evicts him by due process of law.
Mr. Baruah, learned counsel for the petitioner, fairly submits that the petitioner is ready and willing to vacate the portion of land under his possession is ready and willing to vacate the portion of land under his possession whenever the Forest Department evicts him by due process of law. The learned counsel, however, submits that private respondent No.2 should not be allowed to possess the same and she also be asked to vacate the portion of land falling under the Forest Department if she is in possession of the same. According to learned counsel law provides that attachment order may be withdrawn at any time if the Magistrate is satisfied that there is no more apprehension or likelihood of breach of public peace and tranquility in regard to the subject of dispute and the view taken by the learned Sessions Judge, "Dhemaji, that the attachment of the disputed land cannot continue in order to deliver it to the Government and thereby, setting aside the order of attachment dated 12.1.2009 and putting the respondent No.2 in possession of the disputed land, has created an apprehension of further breach of peace between the parties over the disputed land and therefore, the impugned judgment and order dated 29.7.2009 has caused miscarriage of justice and also an abuse of process of the court and as much, the learned counsel submits that the same is liable to be set aside and quashed. 8. Mr. Mahanta, learned counsel, submits that private respondent No.2 is not in occupation of the land over which the petitioner is claiming possession. The learned counsel tries to pursue that private respondent No. 2 is in occupation of a different plot of land which is adjacent to the disputed plot of land. The respondent No.2 has been in continuous and undisturbed possession over the plot of land adjacent to the disputed plot of land and the present petitioner is under a wrong impression that private respondent No. 2 is occupying and cultivating the land over which the petitioner is staking claim. 9. On a careful consideration of the rival submissions of the parties it emerges that the present petitioner and private respondent No.2 are occupying two different plots of land adjacent to each other and they are in physical occupation of the respective plots of land.
9. On a careful consideration of the rival submissions of the parties it emerges that the present petitioner and private respondent No.2 are occupying two different plots of land adjacent to each other and they are in physical occupation of the respective plots of land. The plot of land under the possession of the petitioner is admittedly Government khas land under the Forest Department and the learned Addl. District Magistrate, Dhemaji, rightly directed the Dhemaji Forest Division to take over the possession of the said land and also directed to keep it under attachment. However, the finding of the learned Sessions Judge, Dhemaji, as regards the status of the land in question, is not differing from the finding of the learned Addl. District Magistrate;, Dhemaji, Both the courts below concurrently found that the land in dispute is a Government khas land under the Forest Department. In view of the above position, either of the par-, ties cannot claim settlement or possession over the same. This being the position, the learned Sessions Judge, Dhemaji, manifestly committed error in law in setting aside the order dated 12.1.2009 passed by the learned Additional District Magistrate, Dhemaji, and in declaring the possession of the disputed land in favour private respondent No.2. In my considered view, no order could be passed declaring the possession of the Government khas land in favour of any party. Both the learned Additional District Magistrate, Dhemaji, and learned Sessions Judge, Dhemaji, have committed serious error and illegality in declaring the possession of the disputed land, which is admittedly Government khas land, in favour of either of the party and such the impugned order dated 29.7.2009 passed by the learned Session Judge, Dhemaji, is liable to be set aside and quashed and it is accordingly set aside and quashed. The order dated 12.1.2009 passed by the learned Additional District Magistrate, Dhemaji, so far as it relates to declaring the possession in favour of the present petitioner (Sri Tankeswar Hazarika) is also set aside and quashed. However, the direction of the learned Addl. District Magistrate Dhemaji, to the Dhemaji Forest Division to take over the possession of the disputed land shall stand. 10.
However, the direction of the learned Addl. District Magistrate Dhemaji, to the Dhemaji Forest Division to take over the possession of the disputed land shall stand. 10. If the petitioner, as submitted above, is ready and willing to vacate the possession of the plot of land, in dispute, it is for the Forest Department to take over the possession of land in question forthwith if the direction as contained in the order dated 12.1.2009 passed by the learned Additional District Magistrate, Dhemaji, is not yet complied with. Again if the private respondent No.2's claim that she is in occupation and possession of a different plot of land adjacent to the plot in dispute is to be accepted and/or, if she reiterates the same and in case, the petitioner disturbs the possession of private respondent No.2, she may initiate legal action in a proper court of law for declaration of right, title, interest and possession over the said plot of land. 11. In the result, this criminal petition stands disposed of with a direction to the petitioner to vacate and handover the disputed plot of land to the Forest department immediately if the same is not yet handed over in compliance with the order dated 12.1.2009 passed by the learned Additional District Magistrate, Dhemaji. In case, the party concerned fails to vacate and handover the possession of the same to the Dhemaji Forest Division, the authorities concerned shall be at liberty to take necessary steps to evict the party concerned com the plot of land in question in accordance with law. Petition disposed of. ----------------------------------------