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2025 DIGILAW 1345 (GAU)

Nur Islam S/o- Late Hajrat Ali v. State of Assam

2025-08-12

SANJAY KUMAR MEDHI

body2025
JUDGMENT : SANJAY KUMAR MEDHI, J. The present writ petition under Article 226 of the Constitution of India has been filed with the following relief: “Under the above facts and circumstances it is therefore prayed that Your Lordships would be pleased to admit this petition, call for the records, issue a rule calling upon the Respondents to show cause as to why a Writ in the nature of mandamus shall not be issued to direct the Respondents to settle the 'B' schedule land with the petitioner and on perusal of record and reply to show cause if any and after hearing the parties would be pleased to make the rule absolute by directing the Respondents to settle the 'B' schedule land with the petitioner. And or pass any other order(s) as Your lordships may deem fit and proper for the interest of justice. Further it is prayed that pending disposal of this petition Respondents may be directed not to evict the petitioner from 'B' schedule land. Alternatively it is prayed that Respondent no. 2 may be directed to dispose the settlement application dated 18/5/2023(ANNEXURE NO. 4) within a specified time by a speaking order and copy the said speaking order may be supplied to the petitioner and till passing of the said speaking order the Respondents may be directed not to evict the petitioner from 'B' schedule land.” 2. As per the facts projected, there is a plot of land measuring 10 bigha, 1 katha, 15 lechas in village Kathalbari in the district of Kokrajhar and out of said plot, an area of 2 bighas was in the occupation of the grandfather of the petitioner, since a long period of time. It is projected that after the death of the grandfather, the father of the petitioner came in possession and after his death, the petitioner is in possession of the said plot of land. 3. The Circle Officer, Bagribari Revenue Circle had issued a notice dated 09.05.2023 to the petitioner, requiring him to appear before him or otherwise he would be evicted. It is contended that though the petitioner had appeared, no hearing had taken place and accordingly, the petitioner had submitted an application dated 18.05.2023 for settlement of the B- Schedule land. It is the case of the petitioner that the aforesaid application is pending and no order has been passed. 4. It is contended that though the petitioner had appeared, no hearing had taken place and accordingly, the petitioner had submitted an application dated 18.05.2023 for settlement of the B- Schedule land. It is the case of the petitioner that the aforesaid application is pending and no order has been passed. 4. I have heard Shri M.A. Sheikh, learned counsel for the petitioner. I have also heard Ms. R.B. Bora, learned Standing Counsel, BTC as well as Ms. M. Barman, learned State Counsel and Ms. G. Hazarika, learned Standing Counsel, Revenue Department. 5. Ms. Bora, learned Standing Counsel, BTC, has also submitted that the respondent no. 5 has filed an affidavit-in-opposition on 13.02.2025. 6. Shri Sheikh, learned counsel for the petitioner has submitted that it is the District Commissioner who is the competent authority to take a decision on the application for settlement which has not been done. He has emphasized that the possession of the land is with the petitioner since the days of his grandfather and therefore consideration is required to be made in accordance with law. He has also submitted that such consideration has to be fairly made and there cannot be any discrimination. 7. Ms. Bora, learned Standing Counsel, BTC has however submitted that the petitioner is an encroacher on Government khas land. By drawing the attention of this Court to the affidavit-in-opposition filed by the respondent on 13.02.2025, more particularly the averments made in paragraph 4 thereof, the learned Standing Counsel has submitted that the land in question is Government khas land bearing Dag No. 5 (new) / 4 (old) and is recorded as “Saloni” and is presently used as the Salbari Weekly Bazaar on a temporary basis. It has been clearly mentioned that the land is under illegal encroachment by several individuals including the petitioner and his brothers. It is also averred that land measuring 1 katha, 5 lecha which belongs to the Office of the Circle Officer, Bagribari is also under illegal encroachment of the petitioner by way of cultivation. It has also been stated that the petitioner and his brothers are not landless and rather they own Patta land, the description of which is also mentioned. She has submitted that under such circumstances, the scope of considering an application for settlement of the land in question is absolutely not there. 8. It has also been stated that the petitioner and his brothers are not landless and rather they own Patta land, the description of which is also mentioned. She has submitted that under such circumstances, the scope of considering an application for settlement of the land in question is absolutely not there. 8. In his rejoinder, the learned counsel for the petitioner has submitted that if the Salbari Weekly Bazaar is allowed to function from the plot of land, the petitioner has also got a right to be considered for settlement of the land in question as there cannot be any discrimination. 9. The rival submissions have been duly considered and the materials placed before this Court have been carefully perused. 10. The issue is with regard to the claim for settlement of plot of land for which the petitioner has made an application on 18.05.2023. The aforesaid application has been submitted after a notice dated 09.05.2023 issued by the Circle Officer. Though it appears that the notice could not be brought to a logical conclusion, the land in question is Government khas land which is not disputed. What is also of relevance is that there is a clear averments made in the affidavit- in-opposition that the petitioner is not landless. While in the rejoinder affidavit filed by the petitioner on 21.03.2025 the other averments have been sought to be refuted, the averment made by the respondent that the petitioner and his brothers are not landless is not disputed and rather the petitioner has tried to take resort to Article 111 of the Limitation Act, 1963. For ready reference, the relevant averments made in the affidavit-in-opposition and the affidavit-in-reply are extracted hereinbelow: In the affidavit-in-opposition: “… The petitioner and his brothers are not landless. They have own patta land measuring OB-4K-061L, covered by Dag No. 51 under Periodic Khirj Patta No. 163 in the same village, recorded in their names. For ready reference, the relevant averments made in the affidavit-in-opposition and the affidavit-in-reply are extracted hereinbelow: In the affidavit-in-opposition: “… The petitioner and his brothers are not landless. They have own patta land measuring OB-4K-061L, covered by Dag No. 51 under Periodic Khirj Patta No. 163 in the same village, recorded in their names. They also possess other patta land in the same village land measuring 5B-3K-07L covered by Dag No. 23, 49, 59, 231 and 233 under Patta No.119 and Dag No.61, Area: 1B-OK-09L under Patta No. 145 & Dag No.238, Area: 1B-2K-08L under Patta No.154 in village Khoraghat recorded in name of their father & others.” In the affidavit-in-reply: “… Though the Petitioner have some parcel of patta land but the authority is debarred to evict him from 'B' Schedule land by operation of law under Article 111 of Schedule of limitation Act, 1963 as the predecessor-in-interest of the petitioner and thereafter the Petitioner is in continuous possession of land-in-question since before independence.” 11. As regards the submission made that the subject involved is not one of the transferred subject, this Court is unable to accept the said submission as “Land” is one of the transferred subjects. In this regard, Ms. Barman, learned State Counsel has also placed on record a written instruction dated 07.05.2025 wherein it has been clearly stated that after creation of the BTC “Land Matter” is transferred to the BTC. 12. Be that as it may, the consideration of the application filed by the petitioner on 18.05.2023 has to be examined on the background facts and circumstances. As discussed above, there is a clear stand of the respondents that the petitioner is an encroacher of Government land and what is also more important is that the petitioner is not a landless person. 13. In view of the above, this Court is of a considered opinion that no relief is entitled to by the petitioner. The petition accordingly stands dismissed. 14. No order as to cost.