Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 561 (GAU)

Nayan Uddin Sheik v. State of Assam

2020-06-09

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. SN Sarma, learned senior counsel assisted by Mr. MU Mandal, learned counsel for the petitioners. Also heard Ms. DD Barman, learned Government Advocate for respondents No. 1, 4, 5, 6 and 7 and Mr. BJ Talukdar, learned counsel for the Revenue and Disaster Management Department, Government of Assam. 2. 97 writ petitioners have filed this common writ petition with the following prayers which is extracted below: "In the premises aforesaid, it is most respectfully prayed that Your Lordships would be pleased to admit this petition, call for the records, issue a notice upon the respondents to show cause as to why a Writ of Certiorari should not be issued by setting aside and quashing the impugned orders dated 30.12.2019 and 18.02.2020 (19.02.2020) passed by the Circle Officer Gauripur Revenue Circle and Deputy Commissioner Dhubri respectively and or why a writ of Mandamus should not be issued directing the respondents to pass an order for settlement/allotment in favour of the petitioners in terms of the minutes dated 08.10.2018 as per land policy 1989, land policy 2015 and land policy 2019 and/or direct the respondent No. 3 to dispose of the appeal/representation dated 28.02.2020 pending before the respondent No. 3 and/or direct the respondents not to evict the petitioners from the land in question covered by Dag No. 33, 32/49 (old), Dag No. 307 to 458 of village Alomganj Part-IX Porgona Gole Alomganj dihi and Mouza Rangamati under Gauripur revenue circle district Dhubri, Assam and/or cause or causes being shown upon hearing the parties on perusal of the records be pleased to make the Rule absolute by providing complete and adequate relief to the petitioners and/or pass such order or orders as Your Lordships may deem fit and proper." 3. From a reading of the prayer, it is discernible that the order dated 30.12.2019 of the Circle Officer Gauripur Revenue Circle and the order dated 18.02.2020 of the Deputy Commissioner Dhubri are being assailed in this writ petition and further the petitioners are also seeking a direction to the respondent authorities that they be given settlement/allotment of certain land in terms of the minutes dated 08.10.2018 of the Sub-Divisional Land Advisory Committee Dhubri which according to the petitioners was as per the land policy of 1989, land policy of 2015 and the land policy of 2019. In the meantime, the petitioners had submitted another representation dated 28.02.2020 which is pending before the Commissioner and Secretary to the Government of Assam in the Revenue and Disaster Management Department and a prayer is made that the same be also given a consideration. The further relief sought for by the petitioners is that till such settlement/allotment is made in favour of the petitioners as indicated above and/or till the representation dated 28.02.2020 is not disposed of, they be not evicted from the land, in question, which according to the petitioners is covered by Dag No. 33, 32/49 (old) Dag No. 307 to 458 (New) of village Alamganj Part DC pargana Gole Alamganj dihi and Mouza Rangamati under Gauripur Revenue Circle District Dhubri, Assam. 4. In a nutshell, we are to understand that the prayer of the petitioners is that they are occupying certain land as reflected in the prayer of the writ petition and they claim certain rights over the said land under the minutes of the Sub-Divisional Land Advisory Committee Dhubri dated 08.10.2018 and the under land policy 1989, land policy 2015 and land policy of 2019. With regard to the claim of the petitioners for settlement/allotment of the land as per the minutes of 08.10.2018 we take note of that in Clause f of the minutes in respect of Gouripur Revenue Circle, the following had been provided: "f. Land measuring 212B-0K-0L covered by Dag No. 307, 308, 309, 310, 311, 313, 315, 316, 317, 318, 319, 321, 322, 323, 325, 327, 328, 330, 332, 334, 335, 333(Pt) 339, 338m 337, 340, 341, 342(Pt), 347, 352, 349, 388, 353, 343, 344, 345, 346, 348, 355, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 380(Pt), 381, 382, 383, 384, 385, 386, 378, 379, 387, 389, 390, 391, 392, 394, 395, 396, 397, 440, 441, 442, 413, 408, 409, 418, 419, 420, 421, 422, 423, 424, 426, 434, 435, 458 of village-Alomganj Pt. IX has been recommended for allotment in favour of BSF, 174 Bn. However the house discussed to rehabilitate the eligible landless person carefully after proper verification and as per existing Rules." 5. It is to be understood that the land over which the petitioners are occupying are included in the dag numbers stated in Clause f in respect of Gouripur Revenue Circle and, therefore, they be given the settlement/allotment of the land. However the house discussed to rehabilitate the eligible landless person carefully after proper verification and as per existing Rules." 5. It is to be understood that the land over which the petitioners are occupying are included in the dag numbers stated in Clause f in respect of Gouripur Revenue Circle and, therefore, they be given the settlement/allotment of the land. But on a careful reading of Clause f in respect of Gouripur Revenue Circle in the minutes dated 08.10.2018 of the Sub Divisional Land Advisory Committee Dhubri, it is taken note of that the land under the dag numbers mentioned in the said Clause f is stated to have been recommended for allotment to the BSF 174th Battalion. Therefore, the minutes of the said Advisory Committee does not indicate any legal right in favour of the petitioners for a settlement/allotment of the land pertaining to the dag numbers mentioned therein. But clause f further provides that however, the landless persons are eligible to be rehabilitated carefully after proper verification as per existing Rules. It is not clear whether the petitioners have any legal right under the said provisions of rehabilitation after undertaking the careful verification as provided in the minutes. The further claim of the petitioners that they be given a settlement/allotment as per the land policy of 1989, land policy of 2015 and land policy of 2019 also appears to be a vague claim without any specific contentions being made as to under which provision and or which policy they are claiming the rights for settlement/allotment of any plot of land in their favour. On a query being made to the learned counsel for the petitioner, Mr. SN Sarma learned senior counsel points out to the Notification dated 12.03.2015 of the Revenue of Disaster Management Department of the Government of Assam which is annexed as Annexure-4, page 7 to the writ petition. In other words, a contention has been raised that the specific claim of the petitioners is that they are entitled to a rehabilitation being homeless and landless people and they are covered by the scheme provided in the Notification dated 12.03.2015 i.e. "Chief Minister's Special Scheme for Rehabilitation of Erosion Affected Families in Assam". In the above background, the petitioners are also aggrieved by the order dated 30.12.2019 of the Circle Officer Gouripur Revenue Circle and the order dated 18.02.2020 of the Deputy Commissioner, Dhubri. 6. In the above background, the petitioners are also aggrieved by the order dated 30.12.2019 of the Circle Officer Gouripur Revenue Circle and the order dated 18.02.2020 of the Deputy Commissioner, Dhubri. 6. By the order dated 30.12.2019 of the Circle Officer Gouripur Revenue Circle, it is provided that as per the verbal instruction of the Deputy Commissioner Dhubri an eviction programme was re-fixed to be carried on 04.01.2020 for clearing out encroachment on Government Khas Land at village Alamganj Pt IX (Paribari area) under Gauripur Revenue Circle and for the purpose of eviction to be carried out, the Circle Officer would be assisted by the Circle Officer (A) Dhubri Revenue Circle and other LR Staff of the Office. By the order dated 18.02.2020 of the Deputy Commissioner, Dhubri, a consideration was given to the various claims made by the writ petitioners and one of the conclusion arrived at was that the writ petitioners were asked to furnish any documentary evidence regarding occurrence of erosion, but none of them could produce any document that they are persons who were affected by any erosion. A further stand is taken that none of the inhabitants could produce documents pertaining to the land where they earlier resided prior to the erosion and which had been eroded in the meantime. The order recorded that the petitioners had produced bedokholi jorimona which was a fine realized from the petitioners up to 2008-2009 for having illegally occupied a government land and that the fine/jorimona which was imposed cannot be construed to be land revenue. A further stand was arrived that the land which were being occupied by the petitioner as per the Government record is a government khas land and had been allotted to the Assam Police Battalion as per letter dated 16.03.1998 of the Assistant Settlement Officer, Dhubri which again was made as per the order of the Deputy Commissioner dated 14.03.1998 and Settlement Officer Dhubri at Kokrajhar dated 12.03.1998. It was further concluded that although the petitioners were in possession of the land, no annual patta was issued to them nor any allotment was made by the said Advisory Committee. Accordingly, the claim of the petitioners stood rejected by the Deputy Commissioner by providing that they must vacate the encroached land within a period of 7(seven) days. It was further concluded that although the petitioners were in possession of the land, no annual patta was issued to them nor any allotment was made by the said Advisory Committee. Accordingly, the claim of the petitioners stood rejected by the Deputy Commissioner by providing that they must vacate the encroached land within a period of 7(seven) days. We have perused the orders dated 18.02.2020 and 30.12.2019 of the Deputy Commissioner Dhubri and Circle Officer Gouripur Revenue Circle respectively. The order of the Circle Officer does not contain anything beyond that as per verbal instruction of the Deputy Commissioner the encroachers of the land would be evicted. The order of the Deputy Commissioner dated 18.02.2020 primarily deals with the question that the petitioners do not have any right over the land which they are presently occupying and that the land has already been allotted in the year 1998 to the Assam Police Battalion. 7. Of course, the Deputy Commissioner in the order dated 18.02.2020 had taken note of that the petitioners on being asked to produce the documentary evidence regarding the occurrence of erosion, could not produce anything to substantiate their claim. Further the documents pertaining to bedokholi jorimona were also taken note of, but the same were construed to be not a document which indicate any legal right of the petitioners. It is not clear whether the bedokholi jorimona documents produced by the petitioners pertained to the land and that they are presently occupying and from which they are sought to be evicted or it pertained to any other land which had according to the petitioners in the meantime been eroded. Even the location of the land which may be depicted in the bedokholi jorimona is not available so as to enable an examination of the said question. From the said point of view we do not find any legal right that the petitioners may have to continue to occupy the Government khas land which they are presently occupying and which had already been allotted to the Assam Police Battalion in the year 1998. 8. But at the same time, a claim had also been made by the petitioners that they are entitled to rehabilitation under the "Chief Minister's Special Scheme for Rehabilitation of Erosion Affected Families in Assam" as notified in the Notification dated 12.03.2015 as regards the criteria for selection of the beneficiaries under the said scheme. 8. But at the same time, a claim had also been made by the petitioners that they are entitled to rehabilitation under the "Chief Minister's Special Scheme for Rehabilitation of Erosion Affected Families in Assam" as notified in the Notification dated 12.03.2015 as regards the criteria for selection of the beneficiaries under the said scheme. 9. Mr. BJ Talukdar, learned counsel for the Revenue and Disaster Management Department, Government of Assam has also referred to the norms for the beneficiaries of the "Chief Minister's Special Scheme for Rehabilitation of Erosion Affected Families in Assam" as per the revised Notification No. RGR785/2014/Pt.II/27-A dated 28.1.2016. The revised norms provides that the criteria for selection of beneficiaries would be applicable only in respect of a claim of a patta holder and cases of families affected by erosion w.e.f. 2014-2015 and only such claims shall be considered. If the erosion effected families had received any allotment of Government land earlier under any scheme they shall not be entitled to any financial assistance. The claim of only the original family that lost land shall be considered. 10. In the instant case, we have taken note of that the present petitioners were erosion effected prior to 2014-2015 and, therefore, apparently they would not be covered by the "Chief Minister's Special Scheme for Rehabilitation of Erosion Affected Families in Assam" as notified by the Notification dated 12.03.2015 and clarified by the Notification dated 28.01.2016. 11. The petitioners have also made a claim that in the alternative they be considered under the land policy 2019. The land policy 2019 of the Government of Assam provides that due to growth of population and increase in the industrial and other developmental activities in the State, the agricultural land for rural landless peasantry and land for residential and industrial/commercial purposes both in rural and urban areas have become scarce and limited. It further refers that the problem became all the more acute due to, amongst others, occurrence of flood in almost every year rendering land unfit due to siltation and erosion resulting in loss of alarming quantum of homestead and agricultural land across the State. 12. Considering the factors indicated above, amongst others, the Government had adopted the land policy 2019. Some of the relevant portions of the land policy 2019 for the purpose of this writ petition are extracted below: "1.1. 12. Considering the factors indicated above, amongst others, the Government had adopted the land policy 2019. Some of the relevant portions of the land policy 2019 for the purpose of this writ petition are extracted below: "1.1. Land at the disposal of the Government for ordinary cultivation may initially be given by way of allotment to indigenous landless cultivators. After 3 years of continuous physical possession by cultivating the same, the land may be settled with the allottees, provided the land is found to have been used for the purpose for which it was allotted. "1.2. Land already allotted may be settled with the indigenous allottee on periodic lease provided the allottee is in continuous possession for a period of 3 years or more by cultivating the same or has used it for the purpose for which it was allotted on realization of premium at rate as may be notified by the Government from time to time." "1.3. The maximum limit of land for allotment to an individual is fixed at 3(three) Bighas for agricultural and (1/2) half a bigha for homestead purpose." "1.4. It is made clear, however, that provision for allotment of land to the indigenous landless persons to the tune of 3 (three) and 14 (half) a Bigha does not give them any entitlement to get the land. It is for the government to decide how much land can be given to a person or whether it can be given at all depending on the local circumstances and other pressing needs for the land." "1.7. As far as practicable, preference shall be given in the matter of allotment of Government land for ordinary cultivation in the rural areas as follows: (a). Those indigenous land owner cultivators who have been rendered landless due to flood, erosion, earthquake and other natural calamities. (b). Indigenous landless cultivators. Preference will be given to the landless indigenous cultivators belonging to Scheduled Tribes, Scheduled Castes and OBC/MOBC communities. (c). Indigenous Widow having no earning sons or daughters (excluding married daughter) provided such widow intends to take up cultivation as the source of livelihood. (d). Indigenous Single woman, disabled person and ex-serviceman desirous and capable of taking up agriculture as a means of livelihood." 13. (c). Indigenous Widow having no earning sons or daughters (excluding married daughter) provided such widow intends to take up cultivation as the source of livelihood. (d). Indigenous Single woman, disabled person and ex-serviceman desirous and capable of taking up agriculture as a means of livelihood." 13. Further Clause 3 and 4 of the land policy 2019 provides for the manner for which the allotment and settlement of land are to be made which are extracted as follows: "3. Allotment/Settlement of Land for Homestead Purpose in Rural Areas: 3.1. An indigenous family of the State who does not have homestead land in the name of any member of their families anywhere in the entire State may be allotted with suitable homestead land not exceeding half a bigha (1/2) per family. The land so allotted shall be settled on periodic basis with the allottee provided the land is utilized for the purpose for which it is allotted within 3 years of allotment. Land thus settled shall be non-transferable for 15 years from the date of settlement. Further, the Deputy Commissioners shall ensure that landless indigenous person with whom land is settled does not become landless again by transferring any part of his settled land. 3.2. The land previously allotted under Rural House Site Scheme (MNP Scheme), may be expeditiously settled with the allottees or their legal heirs as the case may be, provided the land so allotted has been properly utilized as homestead. 3.3. Deputy Commissioners shall expedite the process of settlement of land of Tea and Ex-Tea Labourers as per the policy of the Government. 3.4. For allotment/settlement of land to landless indigenous persons under this policy, detail method and manner of submission of applications and other aspects, will be issued separately." "4. Allotment of Land for Allied Agricultural Purposes in Rural Areas: Land in rural areas may be allotted for Pisciculture, Dairy, Poultry, Piggery, Sericulture, Plantation of Herbs & Medicinal Plants etc., on the basis of schemes or projects duly approved by the departments concerned, to indigenous landless families who have taken Pisciculture or Dairy or Poultry or Piggery or Sericulture or Plantation of Herbs & Medicinal Plants etc., as means of livelihood subject to a maximum limit of 2(two) bighas per family, and 30(thirty) bighas for registered Cooperative Society/Farm/group of pisciculturists which is registered under the appropriate law/Government Department. Such allotment will stand cancelled if the land is not utilized for the specific purposes within 3 years of allotment." 14. A reading of the land policy of 2019 would go to show that one of the factors leading to adoption of the policy is the occurrence of flood almost every year rendering land unfit due to siltation and erosion resulting in loss of alarming quantum of homestead and agricultural land. 15. Clause 1.7 of the land policy 2019 makes it explicit that as far as practicable, preference shall be given in the matter of allotment of Government land for ordinary cultivation in the rural areas to the indigenous land owner cultivators who have been rendered landless due to flood, erosion, earthquake and other natural calamities and amongst the indigenous landless cultivators, preference will be given to the landless indigenous cultivators belonging to Scheduled Tribes, Scheduled Castes and OBC/MOBC communities. 16. Be that as it may, the condition precedent of being entitled to the allotment of land under the land policy 2019 would be that the claimants would have to be an indigenous land owner. The land owner is understood to be a person who earlier held land either as a land holder or as a settlement holder and further such person would also have to be also an indigenous person of the State. The second condition precedent would be that such indigenous land owner had been rendered landless due to flood, erosion, earthquake and other natural calamities. Hence a reading of the land policy 2019 would go to show that in order to claim a plot of land under the said policy, the claimant must, first place on record the materials and documents that the person is an indigenous person and that earlier the person was a land holder or a settlement holder of any land within the State of Assam; and secondly that land which was earlier held by the claimant had been lost either due to flood, erosion, earthquake and other natural calamities. Upon the two conditions precedent being satisfied, the claimant would be entitled for an allotment of the land under the land policy 2019. 17. Having said so, in the instant writ petition, the petitioners claim that they are all landless people whose land had been lost due to erosion which had taken place from time to time. Upon the two conditions precedent being satisfied, the claimant would be entitled for an allotment of the land under the land policy 2019. 17. Having said so, in the instant writ petition, the petitioners claim that they are all landless people whose land had been lost due to erosion which had taken place from time to time. It being so, it cannot be a joint claim of 97 persons to make a claim that they are all erosion affected people who had lost their land earlier and they are entitled to be allotted a plot of land under the land policy 2019. We are of the view that ends of justice would be met if the petitioners are allowed to submit their individual separate applications before the Deputy Commissioner Dhubri making their respective claims for allotment of land under the land policy 2019. It is clarified that in doing so, the individual applications shall contain details of the fact that they are indigenous people of the State of Assam and secondly, they were earlier land holders or settlement holders of patta land which may be located in any part of the State and thirdly, from the revenue records it must be established that such land which were held by them have been lost either due to flood or due to erosion at a given point of time. 18. Upon such applications being made with detailed materials and particulars and documents, the Deputy Commissioner shall give an individual consideration of all such applications and pass reasoned orders thereon. If the Deputy Commissioner after following the required procedure as may be prescribed forms an opinion that the given individual applicant is entitled to any allotment of land under the land policy 2019 appropriate orders be passed and on the other hand if the Deputy Commissioner forms an opinion with reasons to be stated that a given individual applicant is not entitled to an allotment of land under the land policy 2019, a reasoned order accordingly be also passed and a copy thereof be provided to the individual applicant. 19. When we refer to the aspect that the Deputy Commissioner shall follow the required procedure, it shall include any such Land Advisory Committee or any other authority that may be a part of the prescribed procedure of the purpose. 19. When we refer to the aspect that the Deputy Commissioner shall follow the required procedure, it shall include any such Land Advisory Committee or any other authority that may be a part of the prescribed procedure of the purpose. We further make it clear that allotment/settlement of the land under the land policy 2019 shall not be construed that a person who is encroaching upon any Government land has to be settled with that plot of land itself and the allotment of the land will be as per Clauses 3 and 4 of the land policy 2019, meaning thereby, that a suitable land earmarked by the authorities for the purpose of allotment shall only be used for any such allotment. 20. It is further provided that having expressed our dissatisfaction with the order dated 19.02.2020 of the Deputy Commissioner, it is further provided that any such reasoned order to be passed by the Deputy Commissioner pursuant to the requirement of this order shall prevail over any other prior order that may have been passed with regard to the parties. 21. Any coercive measures to be taken against the petitioners shall be done only after a reasoned order as indicated above is passed. It is further provided that if the application as required is not made by the individual writ petitioner within a period of 1 (one) month from today, the interim protection shall no longer hold the field and it would be the liberty of the respondents to take the measures as contemplated in the order dated 19.02.2020. On the other hand, if such applications are submitted, the same be brought to its logical end within a period of 4(four) months from the date of submission of such application. Further consequential action shall be subjected to the reasoned order to be passed by the Deputy Commissioner and if the reasoned order goes in favour of the petitioners, the allotment/settlement of the respective land be made and if it goes against the petitioners they would be evicted as part the order dated 18.02.2020 of the Deputy Commissioner. Even if an allotment/settlement is made, the petitioners be provided with the allotted land, but they should be evicted from the encroached land as per the order of the Deputy Commissioner dated 18.02.2020, keeping in mind that the land had already been allotted for some other purpose. 22. Even if an allotment/settlement is made, the petitioners be provided with the allotted land, but they should be evicted from the encroached land as per the order of the Deputy Commissioner dated 18.02.2020, keeping in mind that the land had already been allotted for some other purpose. 22. In terms of the above, the writ petition stands disposed of.