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2017 DIGILAW 611 (GAU)

Haren Saikia v. State of Assam

2017-05-18

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Mr. S.P. Roy, learned counsel for the petitioner. Also heard Ms. A. Verma, learned counsel appearing for the respondent Nos. 2, 3 and 4 and Mr. D. Nath, learned Addl. Advocate General, appearing for the respondent No. 1. 2. The petitioner claims to be in absolute possession and occupation of a plot of land measuring 15 bighas 14 kathas 1 lecha of Dag No. 282 of village Chandrapur Bagicha under Panbari Mouza in the district of Kamrup. It is stated that the said land was occupied by the forefathers of the petitioner since long. It is also stated that the petitioner came into possession of the land about 29/30 years ago upon inheriting it from his forefathers. It is stated by the learned counsel for the petitioner that the said plot of land was notified to be a tribal belt area sometime in the year 1961. On the amendment of the Assam Land and Revenue Regulation Act, 1886, Chapter X thereto was brought in and thereafter the plot of land being a tribal belt area, is governed by the provision of Chapter X of Assam Land and Revenue Regulation Act, 1886, in short Act of 1886. 3. In the aforesaid circumstance, the petitioner had submitted an application dated 24.05.2002 requesting the authorities for allotment of the plot of land measuring 15 bighas 4 kathas 1 lecha for establishing and running a brick industry. The said application was forwarded by the Deputy Secretary to the Govt. of Assam, Revenue (Settlement) Department to the Deputy Commissioner, Kamrup for submission of a report as per the existing rules and procedure. Thereafter, the Deputy Commissioner, Kamrup by letter dated 03.06.2002 forwarded the said application to the Circle Officer, Chandrapur Revenue Circle. The Circle Officer, Chandrapur Revenue Circle submitted an enquiry report dated 17.10.2002 to the Deputy Commissioner, Kamrup, wherein, it was stated that the petitioner has been enjoying the possession of the land of Dag No. 282 since the last 20 years and out of the 15 bighas 4 kathas 1 lecha, the petitioner is utilizing about 7 kathas 4 bighas 10½ for operating a brick kiln. It was also stated that the proposed land is within the tribal belt and the petitioner is a resident of tribal belt and has been paying the touzi revenue regularly. 4. It was also stated that the proposed land is within the tribal belt and the petitioner is a resident of tribal belt and has been paying the touzi revenue regularly. 4. On the basis of the said report of the Circle Officer, the Deputy Commissioner had written a letter dated 17.07.2003 to the Commissioner and Secretary, Revenue (Settlement) Branch stating that, amongst others, although the land is within the tribal belt, the petitioner has been in occupation of the land since long. The petitioner was earlier issued with an undated notice under Section 18(2) of the Rules under the Act of 1886. The said notice was assailed by the writ petitioner in a writ petition being WP(C) No. 3012/2011. 5. The said writ petition was disposed of by this Court by the judgment and order dated 04.10.2012, wherein, the state respondents were directed to re-consider the status of the land of the petitioner by arriving at a conclusion as to whether it is a tribal belt land or otherwise and then take appropriate steps on the matter. It was also provided that the State is at liberty to either consider partial allotment, if the petitioner is found eligible or to initiate steps for eviction of the non-tribal occupier under Chapter-X of the Act 1886. It was further provided that if there is any right of occupier in favour of the petitioner, by virtue of the long possession since the time of his forefathers, the same should also be taken into account while considering the pending application of land settlement. It was further clarified that the decision be taken by the State Government on the merit as per the applicable norms and the order of the Court should not be construed to be a justification for allotment. 6. It was further provided that in spite of the eviction case initiated against the petitioner, the State respondents are at liberty to proceed afresh against them under Chapter X of the Act of 1886 or any other applicable legal provision. In the aforesaid circumstance, the order dated 13.06.2014 was passed by the Deputy Commissioner, Kamrup (M). 6. It was further provided that in spite of the eviction case initiated against the petitioner, the State respondents are at liberty to proceed afresh against them under Chapter X of the Act of 1886 or any other applicable legal provision. In the aforesaid circumstance, the order dated 13.06.2014 was passed by the Deputy Commissioner, Kamrup (M). In the said order, which was apparently passed pursuant to the order of this Court dated 04.10.2012 in WP(C) No. 3012/2011, the Deputy Commissioner arrived at a conclusion that the petitioner had been unauthorizedly occupying and running the brick kiln in the name of the M/s BRB industry over Government land, measuring 12 bighas 1 katha 0 lecha of land covered by Dag No. 282 of village Chandrapur Panbari under Chandrapur Revnue Circle. Accordingly, it was concluded that after considering all aspects, especially in the light of the fact that no intimation had been received regarding the proposal for allotment of government land in favour of the petitioner, the occupation of the petitioner over the Government land measuring 12 bighas 1 kahta 0 lecha of the aforesaid dag No. 282 is unauthorized and is liable to be evicted. In the said order, another order dated 10.02.2014 of this Court in WP(C) No. 5665/2013 had also been recorded. It is noticed that the order dated 10.02.2014 in WP(C) No. 5665/2013 is with regard to operation of brick kiln over the Government land. 7. Ms. A. Verma, learned counsel for the respondent Nos. 2, 3 and 4, on the other hand submits that the petitioner is occupying a Government land and therefore, such occupation is unauthorized and is liable to be evicted. The learned counsel seeks to substantiate that the proceeding under the 18(2) of the Act of 1886 is justified and no interference is required in the order dated 13.06.2014. 8. On a consideration of the totality of the facts and circumstances of the case, the issue that arises is as to whether the petitioner has any right for settlement on the basis of the representation dated 24.05.2002. As already referred hereinabove, the said representation was processed to certain extent and some enquiries were also conducted by the Circle Officer, which has been forwarded to the appropriate authority for its decision. 9. As already referred hereinabove, the said representation was processed to certain extent and some enquiries were also conducted by the Circle Officer, which has been forwarded to the appropriate authority for its decision. 9. learned counsel for the petitioner contends that the petitioner having been in occupation of the land, which is apparently within the tribal belt and covered under Chapter X of the Act of 1886, since before the said land was declared to be a tribal belt land and also before Chapter X of the Regulation was brought into effect, a legal right had accrued in favour of the petitioner for being considered for settlement under the procedure of law. 10. It is contended by the learned counsel for the petitioner that the order dated 13.06.2014 is not an appropriate consideration of the legal right of the petitioner. In this respect, learned counsel also refers to the earlier order of this Court dated 04.10.2012 in WP(C) No. 3012/2011 wherein, this Court had provided that the authorities are required to reconsider the status of the land of the petitioner as to whether the land under his occupation is a tribal belt or otherwise and also to consider whether the petitioner is entitled to any allotment of such land. 11. The procedure for disposal of land notified as tribal belt area for the purpose of cultivation is provided under regulation 163 of the Act of 1886. Regulation 163 (1) provides that disposal of land for cultivation and ancillary purpose in areas to which the Chapter X of the Regulation is applicable, shall be in accordance with such policy and procedure as may be adopted and directed by the State Government. Section 163(2) provides that in adopting and directing such policy and procedure, the State Government shall take into consideration amongst others, as to whether the extent of cultivable land available for settlement in a belt or block is large enough and also the bona-fide needs of persons belonging to other classes of people who are residing in the belt or block. Regulation 163 is quoted herein below- 163.(1) The disposal of land in areas to which the provisions of this chapter apply for this purpose of ordinary cultivation or purposes ancillary thereto, shall be in accordance with such policy and procedure as may be adopted and directed by the State Government, [(2) In adopting and directing such policy or procedure, the State Government shall take into consideration: (a) First, the bona-fide needs of persons belonging to the classes notified under sub-section (2) of section 160 who are permanently residing in such area from before its constitution under section 161; (b) Secondly, the bona-fide needs of persons belonging to such classes who are temporarily residing in such area from before its constitution, but, who are settlement holders of land within the area, on the date of its constitution, and who are likely to undertake to become permanent residents therein within a reasonable time; and (c) Thirdly, if the extent of cultivable land available for settlement in belt or block be large enough, the bona-fide needs of, (I) The persons belonging to the other classes of people residing in the belt or block from before the constitution of the belt or block; (II) The persons belonging to the classes notified under sub-section (2) of section 160, who are living elsewhere in the State] The policy adopted and directed under sub-section (I) shall also provide that no settlement with the persons belonging to the classes of people mentioned in clause (c) of sub-section (2) shall be made except with the previous approval of the State Government. 12. Further in the event, any person without any authority of law is encroaching upon or occupying any tribal belt land, the eviction process thereto is provided under Regulation 165 of the Act of 1886. Regulation 165, amongst others also provides that any eviction process initiated under the said Regulation shall be preceded by a service of notice requiring the occupants to vacate the land and remove all buildings and other construction erected and crops raised within a period, not exceeding one month from the date of receipt of the notice. 13. Regulation 165, amongst others also provides that any eviction process initiated under the said Regulation shall be preceded by a service of notice requiring the occupants to vacate the land and remove all buildings and other construction erected and crops raised within a period, not exceeding one month from the date of receipt of the notice. 13. In view of the aforesaid provision of Regulation of 163 and Regulation of 165 of the Act of 1886, the case of the petitioner, either for grant of a settlement pursuant to the procedure already initiated or for eviction if required, would be governed by the provisions of Regulation 163 and Regulation 165 of the Act of 1886. 14. In such view of the matter, the conclusion of the Deputy Commissioner, Kamrup (M) in the order dated 13.06.2014 that the petitioner is unauthorizedly occupying and running the brick kiln over the Government land measuring 12 bighas 1 katha 0 lecha of Dag No. 282 and is therefore, found to be contrary to the procedure provided in the Act of 1886 and accordingly liable to be set aside. Accordingly, from the aforesaid point of view, the said order dated 13.06.2014 is not sustainable. 15. Further it had already been provided by this Court in its earlier judgment order dated 04.10.2012 in WP(C) No. 3012/2011 that the respondent authorities are required to consider the status of the land of the petitioner and then to take appropriate steps on the matter and further that the State is at liberty to either consider partial allotment, if the petitioner is found eligible. Accordingly, the order dated 13.06.2014, which is purportedly being passed by the Deputy Commissioner, Kamrup (M) pursuant to the order dated 04.10.2012 in WP(C) No. 3012/2011 is found to be not sufficient in compliance of the direction of this Court. 16. On a reading of regulation of 163 of Act of 1886, it can be seen that land under the tribal belt covered by under Chapter X of the Act of 1886 can only be disposed of or settled by the authorities by adopting the procedure provided under regulation 163. 17. As is noticed, regulation 163(2)(c)(i) is the only provision under which such settlement can be given to persons belonging to classes, other than the backward classes, who are residing tribal belt area and that the said provision is clearly circumscribed. 17. As is noticed, regulation 163(2)(c)(i) is the only provision under which such settlement can be given to persons belonging to classes, other than the backward classes, who are residing tribal belt area and that the said provision is clearly circumscribed. In order to make a settlement under regulation 163(2)(c)(i), the settling authorities must first arrive at a conclusion as to what extent of cultivable land is available for settlement in the belt or block and whether it is large enough for the purpose. Further Regulation 163 provides for a procedure for disposal of land for the purpose of cultivation of the land. 18. Accordingly, the settling authority would also have to give a due consideration whether the settlement that is sought for, would be for the purpose of cultivation or for any other purpose. Upon arriving at such conclusion, the settling authorities are also required to arrive at a conclusion as to whether the person seeking settlement had been residing in the belt or block from before the constitution of the belt or block. 19. In view of the aforesaid provision of law, in order to arrive at an appropriate decision as to a whether a settlement is to made to the petitioner or not, the appropriate authority in the State respondents would have to arrive at a subjective satisfaction as to whether the aforesaid requirement of regulation 163(2)(c)(i) is fulfilled in the present case. In the event, the aforesaid conditions are fulfilled, the appropriate authority would pass appropriate orders thereon as to whether the petitioner is otherwise entitled to the settlement. In the event, the authorities arrives at a conclusion that the petitioner is entitled to such settlement, appropriate orders may be passed thereon. On the other hand, if the authorities by giving reason is of the view that the petitioner is not entitled to such settlement under regulation 163(2)(c)(i) appropriate orders would be passed thereto and the petitioner be intimated of the same. In the event, the said respondents authorities are of the view that the petitioner is not entitled for settlement and further it still considers that the petitioner is illegally encroaching upon the land under the tribal belt, the respondent authorities may initiate appropriate proceeding under Section 165 of the Regulation by following the procedure prescribed therein. In the event, the said respondents authorities are of the view that the petitioner is not entitled for settlement and further it still considers that the petitioner is illegally encroaching upon the land under the tribal belt, the respondent authorities may initiate appropriate proceeding under Section 165 of the Regulation by following the procedure prescribed therein. The aforesaid exercise shall be completed within a period of 6 months from the date of receipt of a certified copy of this order. In the proceeding, that is required to be undertaken by the state respondent authorities, the petitioner be provided with an opportunity of hearing to present his case and justify his claim of settlement of the land in question. Writ petition is accordingly disposed of.