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2019 DIGILAW 161 (GAU)

ABDUL AZIZ v. STATE OF ASSAM

2019-02-04

A.K.GOSWAMI, A.S.BOPANNA

body2019
JUDGMENT : A.S. Bopanna, J. 1. Heard Mr. S.C. Biswas, learned counsel for the appellants. Also heard Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for the respondents. Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam has taken notice for Respondents No.1 to 6. Registry to reflect his name. Since service is complete, we have taken up the appeal for consideration. 2. The appellants herein were petitioners in W.P. (C) No.7953/2018. The learned Single Judge while taking note of the prayer made in the writ petition, was of the view that, a petition of the present nature was not maintainable keeping in view the fact that petitioners had given up their contention in W.P. (C) No.5837/2018 and, in that light, the learned Single Judge finding the instant petition to be an abuse of the process has dismissed the petition with cost of Rs. 25,000/-. The petitioners, therefore, is before this Court in this appeal. 3. Learned counsel for the appellants, while assailing the order of the learned Single Judge, would contend that the learned Single Judge ought not to have dismissed the writ petition as the petitioners were seeking rehabilitation for having been evicted from government land and, in that regard, they were also entitled to seek compensation. In that light, it is contended that not only the learned Single Judge was not justified in dismissing the writ petition by declining the prayer made therein, the cost imposed is also not justified. The learned counsel for the appellants, however, seeks to sustain the order passed by the learned Single Judge in its entirety. 4. In the light of the rival contentions put forth, since the learned Single Judge has referred to the earlier proceedings in W.P.(C) No.5837/2018 to decline the relief to the petitioners, we have found it appropriate to refer to the order passed in the said writ petition. A perusal of the order dated 01-11-2018 passed in the said writ petition W.P.(C) No.5837/2018 would disclose that the appellants herein, who were also the writ petitioners in the said writ petition, had sought for allotment of alternate land since, according to them, they were illegally dispossessed from the land of which they were in occupation. A perusal of the order dated 01-11-2018 passed in the said writ petition W.P.(C) No.5837/2018 would disclose that the appellants herein, who were also the writ petitioners in the said writ petition, had sought for allotment of alternate land since, according to them, they were illegally dispossessed from the land of which they were in occupation. During the course of the proceedings in the said writ petition, the learned Single Judge had taken note of the issue and had put the matter in proper perspective for further consideration through the order dated 27-09-2018. In that circumstance, keeping in view that petitioners were in fact allowed to occupy the government land, appropriate action was also desired against the officer who has been identified in permitting the same. In that background, when the writ petition was listed before the Court on 1-11-2018, the petitioners had indicated that they had already been evicted from the property and, therefore, they sought not to press the prayer made in the writ petition. Having taken note of the same, the writ petition had been disposed of. 5. In that circumstance, when the instant petition was filed, the learned Single Judge was justified in his conclusion. Though the learned counsel for the appellants contends that the right to alternate land still subsists, we are unable to accept such position, since even during the course of the earlier writ petition, when it was the position that the appellants had been dispossessed, if any further relief was required to be sought, it was available in the said proceedings itself. However, the appellants had not chosen to put forth any contention and had indicated that since they have been evicted, no further right survives for consideration. Therefore, the earlier proceedings even otherwise would amount to constructive res-judicata for seeking any other relief in the present writ petition when no liberty was reserved in the earlier writ petition to seek any relief in accordance with law. In that circumstance, when the writ petition would not be entertainable, the learned Single Judge was justified in dismissing the same. When the matter relates to the occupation of government land, in that circumstance, the relief for allotment of alternate land and/or compensation being sought in respect of the land, when action legally to be taken, was taken against the petitioners would not be justified. When the matter relates to the occupation of government land, in that circumstance, the relief for allotment of alternate land and/or compensation being sought in respect of the land, when action legally to be taken, was taken against the petitioners would not be justified. The learned Single Judge, in normal circumstance, would also be justified in imposing the cost. 6. However, at this stage, the learned counsel for the appellants contends that the appellants are persons without means to pay the cost and the very fact that there were seeking allotment of government land for their occupation itself indicates that at this stage if they are burdened with the cost, the same would not be justified. 7. We are of the opinion that one opportunity is required to be granted to the appellants even though they had faulted in filing the present writ petition, since at this stage we assume that they were not guided in an appropriate manner. Therefore, in that circumstance, we deem it appropriate to waive the cost with the rider that the appellants are put to probation and if they indulge in filing any other proceedings in relation to the very subject matter, the appellants would not only make themselves liable for imposition of exemplary and punitive cost, but would also expose them to be proceeded against for contempt of court for abusing the process of the Court. 8. In view of the above discussion, the order passed by the learned Single Judge dated 19-11-2018 is affirmed insofar the dismissal of the writ petition is concerned, but the imposition of cost is waived subject to the above observation. The appeal stands disposed of.