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2020 DIGILAW 527 (GAU)

Bubul Sarma v. State of Assam

2020-05-26

ACHINTYA MALLA BUJOR BARUA

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ORDER : Achintya Malla Bujor Barua, J. 1. Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Additional Senior Govt. Advocate appearing for the authorities in the PWD of the Govt. of Assam. 2. The respondent No. 6 being the Chairman of Kamakhya Debutter Board although arrayed as a respondent could not be served notice for the last 5 years. The Court finds it difficult to understand as to why the notice to that authority could not be served if there was any sincere effort on the part of all concerned. 3. Be that as it may, a notice dated 29.09.2015 of the Assistant Executive Engineer, PWD Guwahati State Road Sub-Division-ii has been assailed in this petition. By the said notice, the petitioner was asked to remove the shop premises under his occupation within a period of three days from the date of issuance of the notice, inasmuch as, there was a proposal for an improvement of work to reduce of the traffic congestion in the YIP parking of Maa Kamakhya temple by diverting the movement of outgoing traffic from Maa Bhubaneswari and Maa Bagala temples. It is stated that the shop of the petitioner had obstructed the movement of traffic through the proposed road. The petitioner states that he is operating the shop on the basis of a certificate of land holding issued by the Chairman of Kamakhya Debutter Board authorizing him to operate the shop as a tenant/Subadhabhogi of the endowment of Goddess Sri Sri Kamakhya. Although several grounds are taken in the writ petition, the ground urged upon at the hearing of this petition is that the land over which the petitioner is operating his shop is a land belonging to the Maa Kamakhya Debutter Board and therefore, the PWD authorities have no jurisdiction to require the petitioner to vacate the premises without following due procedure of law. 4. According to the petitioner, if the portion of the land where his shop is located is required for widening of the road concerned, the option available before the authorities would be either to acquire the land as the land in question is a private land of Maa Kamakhya Debutter Board or require the Maa Kamakhya Debutter board to pass necessary order asking the petitioner to vacate the plot of land. In the absence of either of the two procedures being followed according to the petitioner, no notice can be issued by the PWD directly to the petitioner requiring him to vacate the premises over which his shop is located. In principle we are in agreement with the learned counsel for the petitioner that there is no doubt that there may be a requirement of public interest to widen the road in question but the question would remain as to what is the status of the land in question, i.e., as to whether it is a private land either belonging to the petitioner or to the Maa Kamakhya Debutter Board or it is a public land. If it is a public land and the petitioner is encroaching upon it, the authorities would be required to follow the procedure of law applicable for removal of encroachers over public land. On the other hand, if the land in question is a private land either belonging to the petitioner or to the Maa Kamakhya Debutter Board, the appropriate procedure of law would be either to acquire the land or in the alternative if the private owner of the land gives permission to the PWD authorities on their own volition, the work of widening the road can also be carried out. 5. In the circumstance, we require the authorities PWD to follow appropriate procedure of law as indicated above after ascertaining whether the land in question is a private or public land. If it is a private land and it is established that the land belongs to Maa Kamakhya Debutter Board, the PWD authorities may approach the board for necessary permission from them for utilizing the land for the purpose of widening of the road. In the event, any such permission is granted by the board for utilizing the land for widening of the road, the petitioner may take up with the board for allotment of any alternative plot of land to him for operating his shop. In the event of the petitioner making any request to the board, the board shall deal with the matter and act in its own discretion. As urgency has been expressed by the PWD, the aforesaid requirement be done at the earliest and the public work be carried out as required. In the event of the petitioner making any request to the board, the board shall deal with the matter and act in its own discretion. As urgency has been expressed by the PWD, the aforesaid requirement be done at the earliest and the public work be carried out as required. The PWD shall undertake the necessary requirement of this order within a period of two months from the date of receipt of the certified copy of this order. 6. Writ petition is accordingly disposed of. 7. For the period of two months or till such decision is taken whichever is earlier, the petitioner be allowed to operate his shop premises in question but the interim order shall not continue any further under any condition beyond the period of two months from today. 8. Earlier interim order stands vacated and modified as indicated above.