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2017 DIGILAW 1509 (GAU)

Dhunseri Petrochem and Tea Ltd. v. State of Assam

2017-12-05

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. D.K. Mishra, learned Senior Counsel representing the appellants/writ petitioners assisted by Mr. S.K. Deka, Advocate as well as Mr. D. Mozumder, learned Additional Advocate General, Assam for all the respondents, assisted by Mr. R.K.D. Choudhury, learned Senior Government Advocate, Assam. Writ Appeal 16/2011 is directed against the judgment and order dated 05.01.2011 of the learned Single Judge, dismissing the WP (C) 5920/2010, where challenge was made to the Notices dtd. 27.09.2010 and 30.10.10 of the Circle Officer, Naharkatia Revenue Circle, by which the appellants were directed to vacate the Government land measuring 33 Bighas 4 Kathas 13 Lechas. The tagged matter i.e. WP(C) 2709/2015 primarily questions the constitutional validity of Rule 18 of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886, primarily sub-rule(2) thereof, to the extent that it is violative of Article 14 of the Constitution as it stands to confer arbitrary and unbridled power on the Deputy Commissioner to declare an occupant of the land as an encroacher, if in his opinion such person has not acquired the right of a proprietor, land holder or a settlement holder and order him to vacate the land forthwith. The absence of any provision in sub-rule (2) of Rule 18 providing for issuance of a show-cause notice to the alleged encroacher and the absence of any opportunity made available to the alleged encroacher to address on a bonafide claim to the property, is stated to be antithetical to the rule of law, so jealously guarded by Article 14 of the Constitution of India. However, in the course of hearing of the present cases, the challenge to the vires of Rule 18 was not taken forward for the moment, leaving adjudication only in respect of WA16/2011. We proceed accordingly. 2. Facts stated are the appellant No. 1 is a Company registered under the Companies Act, 1956 and is the owner of Dilli Tea Estate, located at Parbatpur, District Dibrugarh. Besides other tea garden land, it has retained possession over a plot of land measuring 33 Bighas 4 Kathas 13 Lechas, covered by Dag Nos. 125, 163, 164, 194 of Village Dilli Tea Estate, Mouza Jeypore. Besides other tea garden land, it has retained possession over a plot of land measuring 33 Bighas 4 Kathas 13 Lechas, covered by Dag Nos. 125, 163, 164, 194 of Village Dilli Tea Estate, Mouza Jeypore. According to the appellants, said land has been under its occupation since last 100 years, originally cultivated by one Naga Hill Tea Company Ltd. and which Company stood merged with appellant No. 1 in the year 1980. In the year 2007, the appellants were served with notice by the concerned respondent authorities in respect of an ejectment case and were directed to vacate the said parcel of land. It is stated that the appellants had made proposal to make over land of equal area from the other land belonging to the appellant No. 1, by way of exchange, in the event it was found that the appellants did not have any right over the said plot of land. Further case is that the matter with regard to exchange of land had received due consideration of the respondent authorities and in that regard a Report dated 28.10.2009 was submitted by the Circle Officer, Naharkatia Revenue Circle to the Additional Deputy Commissioner, Revenue, Dibrugarh. At the stage when the matter with regard to exchange of land was pending, the appellant was served with the first impugned notice dated 27.09.2010, issued under the hand of the Circle Officer, Naharkatia Revenue Circle, directing the appellant Company to vacate the aforesaid land, which is roadside reserved land, illegally occupied by the appellant Company. The said notice indicated that in the event the house/shop/crop/tea plants etc. are not removed from the land in question, the appellants will be evicted by using force and will also be fined. This was followed by the second impugned notice dated 30.10.2010 by the same authority informing the appellants that the appellants will be evicted from the said roadside encroached land on 04.11.2010. Challenging the aforesaid two notices, the appellants instituted WP (C) 5920/2010 on 02.11.2010. The said writ petition, however, stood dismissed vide judgment and order dated 05.01.2011, prompting filing of the present appeal. 3. The basic grounds of challenge are that the appellants have been cultivating over the said plot of land for more than 100 years and have acquired valuable right over it, alternatively, by right of adverse possession. The said writ petition, however, stood dismissed vide judgment and order dated 05.01.2011, prompting filing of the present appeal. 3. The basic grounds of challenge are that the appellants have been cultivating over the said plot of land for more than 100 years and have acquired valuable right over it, alternatively, by right of adverse possession. It is stated that eviction from the land in question is impermissible under the law and cannot be enforced without first adjudicating the bonafide claim and the rights of the appellants over the said land. It is stated that any action towards eviction must be preceded by an impartial adjudication of the rights of the appellants by following the principles of natural justice. According to the appellants, the land has been in occupation and under cultivation for more than 100 years, that is, from a date prior to any reservation of the land as roadside land. The appellants allege deprivation of its right to property as enshrined in Article 300A of the Constitution as well as violation of Article 14, on being sought to be summarily evicted from a plot of land, which has been under their occupation for appreciable number of years, without any proper notice and adjudication of their claim over the land in question. 4. Submission on behalf of the respondents is that the notices for eviction have been issued in accordance with law and in strict terms of sub-rule (2) of Rule 18 of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886, which confers power to the Deputy Commissioner to order an occupant to vacate land forthwith if the occupant has entered into possession of Government khas land that has previously been reserved as roads or roadside land and over which the occupant has not acquired the right of proprietor, land holder or settlement holder, as is the case of appellants herein. In view of the clear prescription of sub-rule (2) of Rule 18, it is contended that there is no requirement under the law for undertaking an exercise to make adjudication over any alleged right of the occupant prior to ejecting or ordering the occupant to vacate the land in question. 5. In view of the clear prescription of sub-rule (2) of Rule 18, it is contended that there is no requirement under the law for undertaking an exercise to make adjudication over any alleged right of the occupant prior to ejecting or ordering the occupant to vacate the land in question. 5. Whether the appellants are legitimately entitled to make a claim requiring an impartial adjudication prior to any recourse being taken by respondent authorities for eviction from the land, is the primary issue to be answered in the peculiar facts and circumstances of the present case. A pari materia provision of summary eviction under the Andhra Pradesh Land Encroachment Act, 1905 had received consideration of the Supreme Court in the case of Government of Andhra Pradesh v. Thummala Krishna Rao & Anr. reported in (1982) 2 SCC 134 . In the said case the Supreme Court observed that although what is relevant for deciding on the question of resorting to summary remedy is more on the nature of the property on which encroachment is alleged to have been committed, however, duration of occupation is also relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have acquired a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law. In the instant case, notwithstanding the nature of the property on which encroachment is alleged, the appellant has been in occupation for more than 100 years. It is for this reason alone and having regard to the decision in Thummala Krishna Rao (supra), the appellants can make a legitimate claim over the land in question requiring an impartial adjudication on the matter by following the due process of law. 6. Having taken the aforesaid view, we remand the matter to the Deputy Commissioner, Dibrugarh for fresh consideration and adjudication of claim of the appellants over the land in question by issuing fresh notice and affording opportunity of hearing to the appellants before taking a final decision on the matter. While reaching a decision, the Deputy Commissioner, Dibrugarh shall apprise himself of the facts and ratio laid down in the case of Thummala Krishna Rao (supra). While reaching a decision, the Deputy Commissioner, Dibrugarh shall apprise himself of the facts and ratio laid down in the case of Thummala Krishna Rao (supra). We again make it clear that the direction above for affording opportunity to the appellants in staking claim over the land in question is for the sole reason with regard to the duration of occupation on the land over an appreciable length of time spanning more than 100 years, which fact is not disputed by the respondent authorities. The exercise, as indicated above, shall be completed by the Deputy Commissioner as expeditiously as possible, preferably within an outer limit period of 3 (three) months from today. To the extent above, the WA16/2011 stands allowed and WP(C) 2709/2015 stands closed as the challenge to the vires of Rule 18 is not pressed for the moment. The eviction Notices dated 27.9.2010 and 30.10.10 as well as the Judgment and Order dated 5.1.2011 passed by the learned Single Judge in WP(C) 5920/2010 are accordingly set aside. No cost.