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2017 DIGILAW 402 (GAU)

Mustab Ahmed v. State of Assam

2017-03-29

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. S.K. Roy, learned counsel for the petitioner. Also heard Mr. G.Z. Ahmed, learned counsel appearing for the respondent Nos. 7 to 15 as well as Mr. T.C. Chutia, learned senior Govt. Advocate appearing for the respondent Nos. 1 to 5. Although, an interlocutory application has been preferred by the respondent Nos. 7 to 15, for vacating the interim order granted in favour of the petitioner, but as the adjudication, as to whether the interim order is required to be maintained or not, would require this Court to go into the question of existence of any legal right of the petitioner and this Court deems it appropriate that the entire writ petition be taken for its final consideration. The petitioner was allotted a plot of land named as Bheti No. 48 in the Samorali Bazar, measuring 25 X 50 feet for doing his business and in respect of the said land a patta in the name of the petitioner was issued by the then Executive Officer/Ex-officio Secretary, Binnakandi Anchalik Panchayat, Daboka, Nagaon. It is also stated that the said patta was given to the petitioner by the order dated 04.02.1999 under the signature of the aforesaid authority of Binnakandi Anchalik Panchayat. It was also stated that by another order dated 21.07.2010 given under the signature of the Executive Officer and Ex-Officio Secretary of Anchalik Panchayat, the petitioner was allowed to construct a temporarily RCC structure in the Bheti No. 48 for doing his business. In this writ petition, the petitioner is aggrieved by the notice issued under Rule 18(2)/18(3) of the Land Settlement Rules under the Assam Land and Revenue Regulation issued by the Sub-Divisional Officer (C), Hojai Sankardev Nagar, by which, pursuant to Encroachment Case No. 15/2015, the petitioner had been directed forthwith to vacate the possession of the said land in question. It is stated in the said notice dated 01.12.2015 that as per the report of the Circle Sub-Deputy Collector, the petitioner has been possessing the aforesaid Government land without any authority and accordingly the petitioner was directed to vacate the land. 2. Learned counsel for the petitioner has strenuously argued that the petitioner has a bona fide claim over the land. 2. Learned counsel for the petitioner has strenuously argued that the petitioner has a bona fide claim over the land. It is contended by the petitioner that the bona fide claim of the petitioner flows from the aforesaid order dated 04.02.1999 of the Executive Officer/Ex-officio Secretary of Binnakandi Anchalik Panchayat and the subsequent order dated 21.07.2010 of the said Executive Officer, whereby the petitioner was allotted the plot of land and was allowed to construct certain temporary structure. On the basis of the aforesaid submission of the petitioner, the question for determination before this court, is as to whether an authority being the Executive Officer of a Anchalik Panchayat is the appropriate authority to grant patta in respect of Government land. 3. Learned counsel for the petitioner has relied upon the decision of this Court in the case of Bijoy Kumar Baruah v. Komai Baruah & Ors, 2016 (4) GLT 680, wherein, in paragraph-10 this court was pleased to hold that patta number is nothing but the serial number of the lease deed issued by the Government. Accordingly, learned counsel seeks to make a submission that the patta allotted to the petitioner by the Executive Officer of the Binnakandi Anchalik Panchayat is a serial number of the lease issued by the Government. 4. Learned counsel also relies upon a judgment of Division Bench of this Court in Shri Kamala Kanta Deka v. The State of Assam & Ors reported in 1983 (2) GLR 258, wherein, in paragraph 9, the Division Bench of this Court was of the view that Rule 18(2) is a lethal weapon or a summary remedy, which can be restored by the authority only when a person has entered possession of land that has been previously reserved for roads, roadside lands or grazing of village cattle or for other public purposes or has entered into possession of land from which he has been excluded by a general or special orders. 5. 5. By relying upon the said provision laid down by the Division Bench of this Court, learned counsel submits that in the instant case, the land in occupation of the petitioner is neither a land which was previously reserved for roads nor it was a road side land or land for grazing of village cattle or for other public purpose or that the petitioner has entered into the possession of land from which he has been excluded by general or special order, and therefore, the notice for eviction is not sustainable. 6. Learned counsel also relies upon the decision of Hon'ble Supreme Court in the case of Rajasthan v. Padmavati Devi, 1995 Supp(2) SCC 290, wherein, in Paragraphs, it had been held that Section 91 of the Rajasthan Land Revenue Act, 1956 is not the appropriate remedy for adjudication of complicated questions of title where the person sought to be evicted as an unauthorized occupant makes a bona fide claim, or makes a bona fide claim regarding his right to be in possession. 7. The leaned counsel for the petitioner also submits that before the impugned order of eviction, the petitioner had not been given any opportunity of hearing. 8. Before proceeding further, it is relevant to note that Rule 18(2) of the Rules under the Assam Land Revenue and Regulation has been amended by the Assam Land and Revenue Regulation (Amendment) Rules 1997. The amended Rule of 18 is as follows:- "(i) in sub-rule (2), after the words "possession of and before the words "Land that" the words "Government khas land, or waste land or estate over which no person has acquired the right of a proprietor, land holder or settlement holder of any shall be inserted." (ii) In Sub-Rule (5), for the words "two hundred rupees" appearing after the words "extend" to and before the words "and in case" the words "one thousand rupees" and for the words "fifty rupees" appearing after he words "extend to" and before the word "for each day" the words "two hundred" and "fifty rupees" shall be substituted." 9. From the aforesaid amendment, it can be noticed that there is a substantial difference between the provision of the unamended Rule 18(2) and amended Rule 18 (2), as it stands after the amendment. From the aforesaid amendment, it can be noticed that there is a substantial difference between the provision of the unamended Rule 18(2) and amended Rule 18 (2), as it stands after the amendment. Prior to the amendment, the requirement was that a person can be evicted from occupation of a Government land only in the event, when the said land has been previously reserved for road side land or for grazing of village cattle or for other public purpose or has entered into possession of land from which, he has been excluded by the general or special order. But the after the amendment, any such person who entered into possession of Government land or an estate over which no person has acquired right of proprietor or land holder or settlement holder, may be ejected to vacate the land forthwith. 10. The aforesaid reading of Section 18 (2) after the amendment makes it clear that in the event a person is in occupation of a government khas land or waste land or estate over which the person has not acquired the right or a proprietor, land holder or settlement holder or any shall be liable to be evicted forthwith. 11. In view of such amendment to Rule 18(2) of the Rules under the Land and Revenue Regulation, the earlier decision of Division Bench of this Court in Shri Kamala Kanta Deka (supra) has no application in the instant case. Further as held by this Court in Bijoy Kumar Baruah (supra), a patta number is nothing but the serial number of the lease deed issued by the Government. The aforesaid lease deed issued by the Government is to be understood to be the lease or settlement made by the appropriate authority in the Government, who is duly authorized to make such settlement. 12. It being the position, the patta given to the petitioner by the Executive Officer/Ex-officio Secretary of the Binnakandi Anchalik Panchayat cannot be construed to be either a lease deed or any other authoritative document issued by the Government granting patta to the petitioner. Further the provision of the Hon'ble Supreme court in case of State of Rajasthan (supra) which provides that Section 91 of the Act, cannot be the appropriate provision to evict an authorized occupant who makes a bona fide claim is also not applicable in the present case. Further the provision of the Hon'ble Supreme court in case of State of Rajasthan (supra) which provides that Section 91 of the Act, cannot be the appropriate provision to evict an authorized occupant who makes a bona fide claim is also not applicable in the present case. In the present case, the claim made by the petitioner is on the basis of a patta given to the petitioner by the Executive Officer/Ex-officio Secretary of Binnakandi Anchalik Panchayat. It has already held that the said document does not give the petitioner either a right of proprietor, or land holder or settlement holder of any kind. 13. Learned counsel also refers to Section 49(9)(a) and 55(3) of the Assam Panchayat Act, which, inter alia, provides for the general function of Anchalik Panchayats. Section 499(a) provides for implementation of housing scheme and distribution of house sites in villages. The said provision of Section 499(a) does not give any inherent right to the panchayat authorities to give the settlement of land in the absence of any such housing scheme. 14. Section 55(3) provides that the State Government may allocate to an Anchalik Panchayat any public property situated within its jurisdiction, and thereupon such property shall vest and come under the control of the Anchalik Panchayat. Section 55(3) also does not bestow the Anchalik Panchayat the authorities to give any settlement of land and the public property vested in the Anchalik Panchayat under Section 55(3) has to be understood to mean that the property is vested for its own use and not for giving any settlement of land. 15. In the aforesaid premises, this court is of the view that the petitioner could not make out a case of establishing a legal right over the land in question. In fact, on the other hand, from the materials on the record, it appears to this Court that the land in question is khas Government land and the petitioner has no legal right over it, inasmuch as the petitioner could not produce any order of settlement or a lease deed by the appropriate authority in respect of the land in question. 16. The petitioner has also raised the question that before the eviction notice was issued, the petitioner was not given any opportunity of hearing. 16. The petitioner has also raised the question that before the eviction notice was issued, the petitioner was not given any opportunity of hearing. The aforesaid question had already been examined by this court as reported in Kundor Gaon Committee v. State of Assam 2006 Suppl GLT in paragraph 11, wherein, it had been held that such ejectment has to be made forthwith and the said Rule of 18 of the settlement rules does not provide for issuance of any notice before eviction. In view of the above, the writ petitioner has failed to make out any bona fide claim as regards his right over the land in question from which the petitioner is sought to be evicted by the Government notice of eviction dated 01.12.2015, inasmuch as the petitioner does not have a legal right over the land nor he is a proprietor or a land holder or settlement holder of the land in question. Nothing could be produced by the petitioner to substantiate that the petitioner has any subsisting right to occupy the land and in such view of the matter, no infirmity can be found in the notice dated 01.12.2015. The writ petition is devoid of any merit and is accordingly dismissed. Interim order passed earlier stands vacated.