Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 713 (GAU)

Indian Institute of Art History v. State of Assam

2011-08-25

B.P.KATAKEY

body2011
The petitioner No.1, which is a Society registered under the provisions of Societies Registration Act and the petitioner No.2, who is the General Secretary of the petitioner No.1, by the present petition have challenged the communications dated 1st October, 2003 and 18th October, 2003 issued by the Forest Beat Office, Sila Forest Beat and Divisional Forest Officer, North Kamrup Division, Rangia, respectively, to one Sri Kisorilal Singh, the contractor engaged by the petitioners and to the Treasurer of the petitioner No.1 Society, requesting them not to carry out any non forestry activity inside the boundary of Silapathar reserved forest without the prior approval from the concerned authority, as they were found clearing the portion of the reserved forest land and cutting earth to set up a historical garden. The facts relevant for the purpose of disposal of the present writ petition may be noticed as under:- The Government of Assam in Revenue (Settlement) Department decided to allot 50 Bighas of ceiling surplus land covered by Dag No.17 of Village- Agiathuri under Sila Sundari Ghopa Mouza of North Guwahati Revenue Circle in favour of the petitioner No.1 for construction of the National Institute of Art History on condition that the land would be reverted to the Government to the Revenue Department if it is not utilized within 3 (three) years for the purpose for which such allotment is made. The said decision of the Government was communicated to the Deputy Commissioner, Kamrup vide communication dated 8th December, 1999. The possession of the land was handed over to the petitioner No.1 Society on 5th April, 2000 by the Circle Officer, North Guwahati Revenue Circle. The Government of India, Ministry of Tourism and Culture, Department of Culture also sanctioned the grant of Rs.15,00,000/- (Rupees Fifteen Lakhs) to the petitioner No.1 Society for construction of the building over the land allotted by the Government of Assam and the first installment of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousands) was directed to be released vide communication dated 10th January, 2002. According to the petitioners, on receipt of the said amount, when they engaged the Contractor, namely Sri Kisorilal Singh, for clearing of the jungle and to make the said land suitable for construction, the Forest Beat Officer, Sila issued the impugned communication dated 1st October, 2003 requiring him not to clear any jungle claiming that the part of the land falls within the boundary of reserved forest. The Divisional Forest Officer, North Kamrup Division thereafter, issued another communication dated 18th October, 2003, which is also impugned in the present writ proceeding, to the Treasurer of the petitioner No.1 Society requesting him not to undertake any non forestry activity within the Silapathar reserved forest basically contending that the portion where such non forestry activities being carried out falls within the Silapathar reserved forest. It is also the case of the petitioners that though they approached the Deputy Commissioner, Kamrup for demarcation of the boundary after making necessary survey, nothing has been done by the Deputy Commissioner, which necessitated filing of the present writ proceeding. [2] I have heard Mrs. K. Deka, learned counsel for the petitioners and Mr. J. Handique, learned State Counsel appearing for the respondents. [3] It has been submitted by the learned counsel appearing for the petitioners that since the aforesaid land measuring 50 Bighas has been allotted by the Government of Assam for establishment of National Institute of Art History and the Government of India has also sanctioned fund for construction of the building, the Revenue authority has to demarcate the land, there being an allegation of encroachment of the reserved forest land levelled by the Divisional Forest Officer, so that the land can be utilized by the petitioners for the purpose for which it has been allotted so also the fund made available by the Government of India. The learned counsel submits that because of the inaction on the part of the revenue authority, the petitioners are not being able to utilize the land for which it has been allotted and also the fund allotted by the Government of India for that purpose. [4] Though the petitioners have challenged the aforesaid communications dated 1st October, 2003 and 18th October, 2003, Mrs. [4] Though the petitioners have challenged the aforesaid communications dated 1st October, 2003 and 18th October, 2003, Mrs. Deka, learned counsel submits that direction may be issued to the district revenue authority, namely, the Deputy Commissioner, to cause survey of the land allotted to the petitioners by the Government vide communication dated 8th December, 1999 and to demarcate the same at an early date, so that the land can be utilized for the purpose for which it has been allotted. [5] Mr. Handique, learned State Counsel appearing for the respondents placing reliance on the affidavits-in-opposition filed by the respondent Nos.4 and 7, namely the Deputy Commissioner, Kamrup (M), Guwahati and the Divisional Forest Officer, North Kamrup Division, respectively, has submitted that it is a fact that 50 Bighas of land covered by Dag No.17 of village- Agiathuri, Mouza- Sila Sundari Ghopa Mouza under North Guwahati Circle has been allotted to the petitioners and though the possession of the said land was handed over on 5th April, 2000, a dispute arose relating to the portion of the land as the Forest Department claims that the petitioners are occupying the part of the reserved forest land, for which a survey was conducted by the Joint Direct of Survey and the area was demarcated. According to the learned State Counsel, since such an exercise has already been carried out, no further exercise relating to the survey of the land needs to be carried out. [6] This Court in view of such stand taken by the Deputy Commissioner in the affidavit-in-opposition filed, vide order dated 23rd August, 2011 directed the learned State Counsel to produce the relevant records of survey conducted by the Joint Director of Survey, which, however, could not be produced by the learned State Counsel today. The Deputy Commissioner also though in the affidavit-in-opposition has stated that such a survey has already been conducted and the land has been demarcated, the report of the said survey has neither been annexed to the affidavit-in-opposition filed nor produced before this Court. The petitioners have also disputed carrying out such survey in their presence. The Deputy Commissioner also though in the affidavit-in-opposition has stated that such a survey has already been conducted and the land has been demarcated, the report of the said survey has neither been annexed to the affidavit-in-opposition filed nor produced before this Court. The petitioners have also disputed carrying out such survey in their presence. [7] Since the Forest Department has raised a dispute contending that part of the land allotted to the petitioner No.1 falls within the boundary of Silapathar reserved forest, the same needs to be verified by making necessary survey by the revenue authority, without, which it is not possible to record any finding as to whether the part of the land allotted to the petitioners falls within the reserved forest. It also appears that it is not the case of the Forest Department that the entire land of 50 Bighas falls within the forest reserved but part of it only, which, however, according to the petitioners, is outside the reserved forest land. [8] That being the position, the present petition is disposed of directing the Deputy Commissioner, Kamrup (Rural), within whose jurisdiction the land now falls, to cause survey of the land allotted to the petitioners measuring 50 Bighas covered by Dag No.17 of Agiathuri village under Sila Sundari Ghopa Mouza in North Guwahati Revenue Circle and to demarcate the same. Such survey shall be conducted in presence of the Forest Department as well as the representative of the petitioner No.1. In the event in such survey, it is found that if whole or any portion of the land allotted to the petitioners falls within the boundary of the forest reserved, necessary order prohibiting any non forestry activity over such portion of the land shall be passed and in that case, the authority may consider allotment of the equivalent portion of adjacent land, if available, in favour of the petitioner No.1. However, in the event, the entire land is found to be outside the boundary of forest reserve, the petitioners shall be permitted to carry out the construction work subject to obtaining necessary permission, if required. It is also open to the petitioners to carry out the construction work subject to the permission, if required, over the portion of the allotted land in respect of which there is no dispute. It is also open to the petitioners to carry out the construction work subject to the permission, if required, over the portion of the allotted land in respect of which there is no dispute. The said exercise of survey and demarcation shall be carried out within 2 (two) months from today with due notice to the petitioner No.1 and the Divisional Forest Officer, North Kamrup Division, Rangia. [9] The writ petition is accordingly disposed of. No costs. [10] A copy of this judgment and order be furnished to Mr. Handique, learned State Counsel.