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2025 DIGILAW 1709 (GAU)

Arshad Khan S/o Late Farid Khan v. State of Assam

2025-10-17

RAJESH MAZUMDAR

body2025
JUDGMENT AND ORDER : RAJESH MAZUMDAR, J. 1. Heard Mr. Atal Tiwari, learned counsel appearing for the petitioners. Also heard Mr. Jayanta Chutiya, learned Standing Counsel for the Karbi Anglong Autonomous Council. The State of Assam has been represented by Mr N Das, learned Government Advocate. 2. These 5 (five) writ petitions have been preferred by the petitioners, apprehending eviction proceedings at the hands of the respondent authorities in the Karbi Anglong Autonomous Council from the land which they claim to have possessed for a long period of time, in some cases, even from the times of their grandfathers. The crux of the assertions made in each of the writ petition is given below: a. WP(C) 1920/2022 It is the case of the petitioner that his father, Farid Khan was in possession of two parcels of land - a plot of land measuring 3 Bighas & 16 Lessas covered by Dag no. 31 & Patta no. 3 and another plot of land measuring 1 Bigha & 6 Lessas covered by Dag no. 38 & Patta no. 3, both within Block no. 3, Lahorijan. In support of his claim, the petitioner has annexed a Kaccha Patta issued in favour of the petitioner’s father, Late Farid Khan by the Assistant Settlement Officer on 06.10.2009. The respondent authorities had been undertaking eviction drives in and around the localities under Block no. 3, Lahorijan, Mouza – Borjan, Revenue Circle - Diphu without serving any prior notice under Rule 18 of the Assam Land and Revenue Regulation, 1886. In the process, a number of similarly situated persons were evicted. The petitioner, apprehending a similar prejudicial eviction without being afforded an opportunity of being heard, had filed the writ petition. b. WP(C) 432/2022 The petitioner stated that he is in occupation of 3 Bighas of land covered by Dag No.35, Patta No. 4 of Village-Lahorijan, Block No. 3, Mouza-Borjan under Diphu Revenue Circle of Karbi Anglong Autonomous District that was given to him as a gift by its owner Rahimshah Khan. However, the respondents in the KAAC are now contemplating to evict him from his said patta land. In this regard, the petitioner has placed before the Court the copy of the notice issued by the Revenue Officer, KAAC in Misc. However, the respondents in the KAAC are now contemplating to evict him from his said patta land. In this regard, the petitioner has placed before the Court the copy of the notice issued by the Revenue Officer, KAAC in Misc. Case No.1570 dated 26.11.2021 under Rules 18 (2) and 18 (3) of the Assam Land and Revenue Regulation, 1886 directing him to vacate the said land the same being Government land which he is allegedly occupying by encroaching the same. c. WP(C) 457/2022 The petitioner who is the widow of Late Ibrahim Khan is in occupation of 3 Bighas of land covered by Dag No.30, Patta No.2 of Village-Lahorijan, Block No. 3, Mouza- Borjan under Diphu Revenue Circle, District-Karbi Anglong Autonomous District. Apprehending her eviction from the said patta land, the petitioner has preferred this writ petition as the respondents in KAAC have issued notices under Rules 18 (2) and 18 (3) of the Assam Land and Revenue Regulation, 1886 to her neighbours of said patta land. In this regard, the petitioner has placed before the Court the copy of the notice issued by the Revenue Officer, KAAC in Misc. Case No.1570 dated 26.11.2021 under the provisions of Rules 18 (2) and 18 (3) of the Assam Land and Revenue Regulation, 1886 directing her to vacate the said land the same being Government land which she is allegedly occupying by encroaching the same. d. WP(C) 492/2022 As per the claim of the Petitioner his father, namely, Gulshan Khan was the owner of the land measuring 3 Bighas 0 Katha 16 Lechas of Dag No.34, Patta No. 6 of Village- Lahorijan, Block No. 3, Mouza-Borjan under Diphu Revenue Circle of Karbi Anglong Autonomous District. After his death, the petitioner along with other legal heirs of said Gulshan Khan continued to be in occupation of said land. The petitioner is under an apprehension that he will be removed from the said patta land considering him to be an encroacher of Government land as respondents in the KAAC have already taken steps to evict other persons from alleged Government land in and around his said patta land. In this regard, the petitioner has placed before the Court copies of such notices issued by the Revenue Officer, KAAC in Misc. In this regard, the petitioner has placed before the Court copies of such notices issued by the Revenue Officer, KAAC in Misc. Case No.1570 dated 26.11.2021 under Rules 18 (2) and 18 (3) of the Assam Land and Revenue Regulation, 1886 directing some persons to vacate land under their occupation at said Village-Lahorijan, Block No. 3, Mouza- Borjan under Diphu Revenue Circle of District Karbi Anglong considering it to be Government land alleging them that they have illegally encroached the same. e. WP(C)/496/2022 The petitioner claims to be the patta holder of land measuring 1 Bigha 1 Katha of Dag No.611 (24 old) as well as 1 Bigha 3 Kathas 12 Lechas of Dag No.612 (42 old), both of Patta No.511 (10 old) and land measuring 3 Bighas of Dag No.17, Patta No.3 all at Village-Lahorijan, Block No. 3, Mouza-Borjan under Diphu Revenue Circle of District Karbi Anglong. The petitioner is apprehending that he will be removed from the said patta land considering him to be an encroacher of Government land as respondents in the KAAC have already taken steps to evict such encroachers of Government land in and around his said patta land. In this regard, the petitioner has placed before the Court copies of such notices issued by the Revenue Officer, KAAC in Misc. Case No.1570 dated 26.11.2021 under Rules 18 (2) and 18 (3) of the Assam Land and Revenue Regulation, 1886 directing some persons to vacate land under their occupation at said Village-Lahorijan, Block No. 3, Mouza-Borjan under Diphu Revenue Circle of District Karbi Anglong considering it to be Government land alleging them that they have illegally encroached the same. Alleging violation of the directions passed for maintaining status quo, the petitioners instituted Cont. case (C) no 78/2022. Submissions on behalf of the petitioners: 3. Mr. A. Tiwari, learned counsel for the petitioners has submitted that since all the writ petitions have been filed on the basis of apprehension of forceful and unlawful eviction to be suffered at the hands of the respondent authorities and since, admittedly, the petitioners in all the writ petitions are similarly placed, a reference to the pleadings in WP(C)/432/2022 would suffice. Mr. Mr. Tiwari, learned counsel has referred to the copies of the Katcha Patta and copy of the relevant portion of the jamabandi for surveyed villages issued for the Barjan Mouza under Diphu Circle to support his assertion that the names of forefathers of the petitioners/predecessors in interest of the petitioners are recognised in the revenue records. He has thereafter referred to the notice dated 25-2- 2010 to submit that a process for acquiring certain land, including land standing in the name of the petitioners, had been initiated by the concerned authorities and objections were also submitted by the landowners. He has stated that the acquisition proceedings thereafter did not materialize. The learned counsel has submitted that more than 10 years later, the authorities in the Karbi Anglong Autonomous Council issued notices purportedly under the provisions of Regulation 18(2) and 18(3) of the ASSAM LAND AND REVENUE REGULATIONS directing the notice receivers to vacate the land under their occupation on the allegation that the land under occupation was Government land and that the said land was being possessed without permission. Mr. Tiwari, learned counsel has submitted, on the basis of the annexures made available in the writ petition, that several persons had received such notices and the common thread running amongst all the notices was that they were issued in reference to Miscellaneous Case no 1570 of 26.11.2021. It has been submitted that such notices were assailed before this Court in writ petitions, one such petition being WP(C) 6758/2021, wherein in the order dated 16-12-2021, this Court had recorded the stand of the respondent Karbi Anglong Autonomous Council that the notices dated 26.11.2021 had been withdrawn through order no KAAC/Rev-1411 Pt/2020/1168 dated 14.12.2021. On the said basis the writ petitions were disposed of as infructuous. 4. Mr. Tiwari, learned counsel appearing for the petitioners has submitted that when matters stood thus, the respondents, acting on considerations which cannot be termed to be bonafide, issued an order dated 18.12.2021 under the provisions of Section 144 , Cr. P.C, promulgating prohibitions and restrictions in the area under issue in the writ petitions. The order was purportedly issued, submits Mr. Tiwari, since it was made to appear before the concerned Magistrate that there was a possibility of trouble prior or during the eviction operation sought to be undertaken by the authorities. P.C, promulgating prohibitions and restrictions in the area under issue in the writ petitions. The order was purportedly issued, submits Mr. Tiwari, since it was made to appear before the concerned Magistrate that there was a possibility of trouble prior or during the eviction operation sought to be undertaken by the authorities. By referring to two other notices of even date, Mr Tiwari has submitted that the Additional District Commissioner had informed the General Manager of the Assam Power Distribution Corporation Limited of Bokan sub division to take necessary steps as a precautionary measure to prevent any untoward incident like electrical fault or electrical incident during the eviction drive. The second notice had requested the Executive Magistrate of Bokajan for maintenance of law and order duty during the eviction drive. Mr. Tiwari therefore submits that the intent of the respondent authorities to carry out eviction drives without following the due process of law and only on the basis of inconsiderate and unreasonable use of power is evident. Mr. Tiwari submits that when other similar persons that filed writ petitions, this Court had directed the respondents not to proceed with the eviction process with regard to the Patta land of the petitioners without following the due procedure of law. Mr. Tiwari has submitted that such eviction drives are illegal and the respondents remain liable to be directed not to proceed with any such illegal eviction drives. Mr. Tiwari further submits that the threat of eviction in the circumstances of the case is not a mere apprehension but is fortified by the different notices and letters being issued by the authorities of the Karbi Anglong Autonomous Council to other authorities requiring them to take appropriate steps to prevent any untoward incident during the eviction drive. Stand of the respondents: 5. By referring to the affidavit in opposition filed on behalf of the respondent number 5, the learned standing counsel for the Karbi Anglong Autonomous Council submitted that the Autonomous council is constituted under paragraph 2 of the 6th schedule of the Constitution of India. In exercise of a powers conferred by the Constitution of India, the council had enacted the Karbi Anglong (Land and Revenue) Act 1953 and section 2 of the Act provides that the provisions of the Assam Land and Revenue Regulation 1886 would apply to the Karbi Anglong District together with the Rules framed thereunder. In exercise of a powers conferred by the Constitution of India, the council had enacted the Karbi Anglong (Land and Revenue) Act 1953 and section 2 of the Act provides that the provisions of the Assam Land and Revenue Regulation 1886 would apply to the Karbi Anglong District together with the Rules framed thereunder. By enacting the Karbi Anglong (Land and Revenue) 4th Amendment Act 1973, the proviso of Section 2 was substituted to the extent that all references to the State Government, the Commissioner and the Deputy Commissioner shall be read as referring to the Executive Committee of the District Council, the Executive Member in charge of revenue matters and the Revenue Officer respectively. The learned standing counsel has submitted that as per Section 3 of the Karbi Anglong District (Transfer of Land) Act 1959, no land under the district council shall be sold, mortgaged, lease, battered, gifted or otherwise transferred by a Tribal to a non-tribal except with the previous permission of the Executive Committee. 6. The learned standing counsel submitted that by order dated 17th of January, 2022 the Deputy Secretary, Department of Revenue, Karbi Anglong Autonomous Council had entrusted the land revenue staff to conduct a field verification and a survey of the land of Lahorijan Block number 3 under Bokajan Mouza in order to assess the extent of encroachment of government land. However, it has been stated in the affidavit in opposition that the revenue staff deputed by the authority were obstructed by a large group of people and were compelled to retreat from entering the land required to be verified. By referring to the affidavit in opposition filed by the respondent number 5 the learned Standing counsel for the autonomous council has taken a stand that the land over which the petitioners claim a right of possession were originally government khas land but the name of the individuals were inserted in the settlement record by tempering with the records. He has submitted that there is no order for from the competent authority for transfer or settlement of the land. He has further submitted that the Executive Member in charge of the Revenue Department of the KAAC is vested with the power to confirm settlement and to cancel any Patta issued in violation of the prescribed procedure. He has submitted that there is no order for from the competent authority for transfer or settlement of the land. He has further submitted that the Executive Member in charge of the Revenue Department of the KAAC is vested with the power to confirm settlement and to cancel any Patta issued in violation of the prescribed procedure. He has further submitted that even as per Rule 18 (2) of the Settlement Rules framed under the ASSAM LAND AND REVENUE REGULATIONS , the competent authority has been empowered to evict unauthorized occupant from the government Khas land. Summing up his arguments, the learned standing counsel has submitted that the prayers made by the petitioners do not deserve any consideration of this Court and rather deserve to be dismissed. Conclusion: 7. This Court has considered the submissions made by the learner counsel appearing for the contesting parties and has also perused the records. It is not in dispute that the petitioners are in possession over the respective portion of land which are in issue in the present petitions. It is not denied by the respondents that the Revenue records show the petitioners to be the recorded pattadars of the land in issue, rather it has been stated by the respondents that the names of the petitioners were entered into the land records by tempering with records. The collection of land revenue by the Karbi Anglong Autonomous Council is not denied by the respondents. 8. The earlier notices issued by the Autonomous council had been stated to be withdrawn, which fact is reflected in the orders passed by this Court in WP(C) 6758/2021. The petitioners have asserted that the respondent Council has proposed and attempted to evict the petitioners from land under their possession, without following the due procedure of law and the respondent Council has admitted that such process was initiated, albeit to clear Government land from encroachers. Ironically, the respondents have not asserted that fresh notices, after the notices impugned in WP(C) 6758/2021 had been withdrawn, were issued to the petitioners. On a pointed query, Mr. J Chutiya, learned Standing Counsel for the Autonomous Council has stated that instructions supplied to him do not reflect that notices as required under the law were issued after WP(C) was closed. On a pointed query, Mr. J Chutiya, learned Standing Counsel for the Autonomous Council has stated that instructions supplied to him do not reflect that notices as required under the law were issued after WP(C) was closed. It is also not the stand of the respondents that the petitioners had been given notice regarding the allegations of their names being illegally entered into the revenue records or that the Government proposed to reclaim the land which stood in their names. 9. The law relating to eviction drives have received the attention of the Courts on numerous occasions. The admitted position in the present case is that after the notices impugned in WP(C) 6758/2021 had been withdrawn, there is nothing on record to show that any further notices were issued to the petitioners now before this Court. This Court in Salak Uddin (Md.) vs. State Of Assam & Ors., reported in 2024 (4) GLT 857 , has held as follows: “11. The issue which has been referred to us is as to whether any action taken under Rule 18(2) of the Settlement Rules, should be preceded by a notice or not.” Having discussed all facets of law placed before this Court, it held as follows: “64. We accordingly answer the reference holding that prior to initiation of proceedings under Rule 18(2) of the Settlement Rules, the occupant/possessor of Government lands have to be issued notice.” 10. A co-ordinate bench of this Court, in WP(C) 559/2019, Sahidul Islam vs State of Assam and others , disposed of on 26.7.2024 has carved out the conditions laid down in Salak Uddin (supra) in the following manner: “7. A Division Bench of this court in WP(C) 1057/2022 (Md. Salak Uddin Vs. State of Assam and 2 Ors.) while dealing with a reference as to whether a notice is required to be issued under Section 18(2) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 has made certain conclusion. Since such conclusions are having importance and determinative factor in adjudication of an eviction process, the same are curved out in the following manner: I. Rule 18(2) of the Settlement Rules clearly shows that Deputy Commissioner or such authority duly empowered under Rule 3 of the Settlement Rule has to arrive at a subjective satisfaction that there is no bona-fide claim of right. II. II. Revenue authorities cannot be permitted to unilaterally decide as to whether an occupier/ possessor has a bona-fide claim of right involved inasmuch as it would require adjudication of both law and facts and without providing an opportunity to the occupier / possessor, would be in violation of the principle of natural justice which in turn would violate Article 14,19 and 21 of the Constitution. III. Though Rule 18 (2) is silent on the question of issuance of the notice, but use of the word ‘forthwith’ does not necessarily and absolutely exclude the prior application of audi alteram partem Rule inasmuch as immediacy or urgency requiring swift action is a situational fact, having a direct nexus with the likelihood of adverse affect. IV. Bona-fide claim, in case of Government khas land or waste land, may involve a bona-fide claim of right to claim settlement over the land on the basis of settlement Rules and extant land policy of the Government of Assam. In respect of other lands i.e. lands previously reserved for roads or roadside lands, or for grazing of village cattle or for other public purposes or the occupant had entered into possession of land from which he has been excluded by general or special order, such lands are outside the purview of settlement, there may be various situations, where the question of disputes pertaining to the boundary or there may be disputes pertaining to reservations or de-reservation for grazing of village cattle or for that matter, there may be a dispute that the persons who have been granted the settlement in respect of a land even prior to being previously reserved for the purpose, may arise. V. Under such circumstances, issuance of a notice shall be necessary to form a subjective satisfaction, which is in consonance with the principles of natural justice inasmuch as same will facilitate a just, fair and transparent procedure, which are facets of Article 14,19 and 21 of the Constitution.” 11. It is no longer res-integra that eviction processes ought not be initiated by the State without following the due procedure of law and it can be done only by adhering to the principles of natural justice. In the case of All Asom Goriya Yuva Chatra Parisad Vs. It is no longer res-integra that eviction processes ought not be initiated by the State without following the due procedure of law and it can be done only by adhering to the principles of natural justice. In the case of All Asom Goriya Yuva Chatra Parisad Vs. The State of Assam and 11 Ors in PIL/39/2025 disposed of on 10.09.2025, the Division Bench of this Court had held that the directions issued in WA/251/2025 are required to be applied to unauthorized settlers/encroachers, who are to be driven out from reserved forest areas, after they are given a show-cause notice of 15 days, to enable them to explain the circumstances under which they have set up their residences inside the reserved forest area and whether any non-forest activities or their presence attracts penal offences under the applicable laws. It is only, thereafter, that the State respondents would be justified in taking steps for evicting the encroachers. That case related to eviction from reserved forest areas but the law relating to eviction of alleged illegal settlers or encroachers was laid down. Again in the case of Directions in the matter of Demolition of Structures, In Re reported in (2025) 5 SCC 1 , which related to demolition of structures supposed to be illegal, the Apex held as follows: “91. At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law. A. NOTICE i. No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days’ time from the date of service of such notice, whichever is later. ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question. iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice. iv. ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question. iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice. iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today. v. The notice shall contain the details regarding: a. the nature of the unauthorized construction. b. the details of the specific violation and the grounds of demolition. c. a list of documents that the noticee is required to furnish along with his reply. d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place; vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available. B. PERSONAL HEARING i. The designated authority shall give an opportunity of personal hearing to the person concerned. ii. The minutes of such a hearing shall also be recorded. C. FINAL ORDER i. Upon hearing, the designated authority shall pass a final order. ii. The final order shall contain: a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof; b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor; c. if the designated authority finds that only part of the construction is unauthorized/non-compoundable, then the details thereof. d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available. D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER. d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available. D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER. i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated above. ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished. iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas. E. PROCEEDINGS OF DEMOLITION i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved. ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal. 92. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us.” 12. In the present case, the allegation of the petitioners that the respondents have proposed eviction, which would naturally entail demolition proceedings, without issuing notices as required under the law has not been satisfactorily refuted by the respondent authorities. In fact, there is a subtle admission on the part of the respondents that no notices have yet been issued under any provision of law to enable the petitioners to effectively dispel the allegations of the respondent authorities. In fact, there is a subtle admission on the part of the respondents that no notices have yet been issued under any provision of law to enable the petitioners to effectively dispel the allegations of the respondent authorities. The apprehension expressed by the petitioners appear to be reasonable and therefore, this Court is of the considered view that attempts of the respondent authorities, more particularly the Karbi Anglong Autonomous Council, to enforce eviction without complying with the provisions of law as stated above deserves to be curtailed. this Court cannot ignore the admission on part of the respondents that the revenue records reflect the names of some of the petitioner as pattadars and therefore, it is expected that the State authorities would take necessary and due steps to have the record corrected by following a process prescribed and recognised by law, before initiating eviction drives against the petitioners herein. 13. The interference made in this writ petition would however neither restrain the appropriate authorities to issue proper and lawful notices to occupants of portions of land which, according to the authorities are government land of any form/nomenclature, nor restrain the authorities from taking up such lawful measures to reclaim such land. The occupants who receive such notices would be entitled to reply to such notices along with all documentary evidence in support of their reply. It is only thereafter that the respondents would come to a final decision which shall be made known to the occupants before they are required to vacate the land, in the event the decision of the authorities go against the petitioners. 14. It is also provided that in case the State proposes to resort to eviction of encroachers and unauthorized occupants from the land in occupation of the petitioners, the process laid down by the Hon’ble Apex Court and the Hon’ble Division Bench of this Court regarding eviction, shall be strictly followed by the State authorities. 15. It goes without saying that till such time that the occupants of the land in issue are given due notice along with an opportunity of hearing and a final decision is taken by the authorities, there would be no process required to be initiated by the respondent authorities to evict the petitioners. 16. Writ petitions accordingly disposed of. No costs.