Gauhati High Court
Smti Golapi Deka And 7 Ors vs The Gauhati University And 4 Ors on 14 May, 2019
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010006992015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 86/2015
1:SMTI GOLAPI DEKA and 7 ORS
W/O LT. PANCHANAN DEKA
2: SRI DHIREN KALITA
S/O TAPESWAR KALITA
3: SRI PINKU BISWAKARMA
S/O LT. KARNA BD. BISWAKARMA
4: SRI JUN MONI BISWAKARMA
S/O LT. KARNA BD. BISWAKARMA
5: SRI RAJU BISWAKARMA
S/O LT. KARNA BD. BISWAKARMA
6: SRI SARBESWAR DEKA
S/O LT. NARESWAR DEKA
7: SRI MOON DAS
S/O SRI MANMIN DAS
8: SMTI. PUJA KUMARI
W/O SRI SANJAY CHETRI ALL ARE RESIDENTS OF UTTAR JALUKBARI
ASSAM
ENGINEERING COLLEGE ROAD
P.S. JALUKBARI GUWAHATI- 781014
KAMRU M
ASSAM
VERSUS
1:THE GAUHATI UNIVERSITY and 4 ORS.
REP. BY THE REGISTRAR, GUWAHATI UNIVERSITY, JALUKBARI,
GUWAHATI- 781011.
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2:THE ESTATE OFFICER
GAUHATI UNIVERSITY
GUWAHATI- 781011.
3:THE STATE OF ASSAM
THROUGH THE CHIEF ENGINEER
GOVT. OF ASSAM
DISPUR
GUWAHATI- 781006.
4:THE DEPUTY COMMISSIONER
KAMRUP M
GUWAHATI- 781009.
5:THE CIRCLE OFFICER
GUWAHATI REVENUE CIRCLE
GUWAHATI- 781001
Advocate for the Petitioner : MR.P UPADHYAY
Advocate for the Respondent : MR.P K BHUYANR-1 and 2
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 14-05-2019 8 (Eight) members of petitioners have joined together in this petition seeking to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
2. In fact, prior to this petition, there were 2 (two) rounds of litigation earlier in this Court which would be referred in the course of this judgment.
3. The case as projected in the writ petition may be put in a nutshell in the following manner.
(i). the petitioners claim that they are in bonafide possession of a total areas of about 1 ½ Bigha of land with boundaries given in the petition. They are in possession of the land for the Page No.# 3/7 last more than 25 years. According to the petitioners, the land in question is a Government land.
(ii). Earlier, eviction drive was initiated against the petitioners and the same was the subject matter of challenge in a writ petition filed before this Court which was registered as WP(C)No.2507/2000. This Court vide order dated 18.05.2000 while issuing notice has passed an interim order not to evict the petitioner from the land under their occupation without following the due process of law. The said writ petition was disposed of by making the interim order absolute. Subsequently, when notices were issued for eviction, the petitioner and similarly situated persons had once again filed WP(C)3194/2002. This Court vide order dated 10.03.2008 had disposed of the writ petition observing that the respondent authorities may take recourse to evict the petitioners from the land under their possession but they can only do so in compliance with the provisions of Rule 18 of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 and not otherwise. It is the case of the petitioners that no notices under Section 18 of the Rules have been served upon them.
However, suddenly on 30.12.2014 a general notice was published by the Guwahati University directing the unauthorized occupiers within the campus of the Guwahati University to vacate the land, failing which action would be taken in accordance with law. Being aggrieved by the said notice, the present petition has been filed. This court vide interim order dated 28.01.2015 had directed that the petitioners shall not be dispossessed until further orders; accordingly, the petitioners are continuing to occupy the land in question.
4. I have heard Shri P. Upadhyay, learned counsel for the petitioners. I have also heard Shri P. K. Kalita, learned Sr. counsel assisted by Shri U. Sarma, learned counsel appearing on behalf of the Guwahati University, the respondents No. 1 & 2 and Ms. D. D. Barman, learned State counsel for the remaining respondents No. 3, 4 & 5.
5. Shri Upadhyay, learned counsel for the petitioners has drawn the attention of this Court to the relief prayed in this petition, mainly to restrain the authorities from evicting the petitioners from the land under their possession and for a direction to grant them settlement or make alternative arrangements for settlement. It is submitted that the status of the petitioners are of bona fide occupiers and by virtue of the fact that they are in continuous Page No.# 4/7 possession of the land in question for the last more than 25 years, eviction cannot be carried out without following the due process of law. It is further submitted that since according to petitioners the land in question is a Government land, the rigors of Rule 18 of the Settlement Rules has to be duly followed before evicting the petitioners.
Learned counsel has also relied upon certain decisions of this Court as well as the Hon'ble Supreme Court. Citing the case of Kamala Kanta Deka Vs. The State of Assam & Ors. , reported in (1983) 2 GLR 258, the learned counsel submits that the Division Bench of this Court in the aforesaid decision has laid down that without following the procedure prescribed under Rule 18, no recourse of eviction can be taken into. Learned counsel further relies upon the Case of Dunseri Petrochem and Tea Ltd. and Anr. reported in (2018) 6 GLR 125 , wherein, the Division Bench of this Court has laid down that duration of occupation is a relevant consideration which should be taken into account while deciding a matter relating to eviction.
Reliance has also been made upon a decision of the Hon'ble Apex Court in the case of Maria Margarida Sequeria Fernandes and Ors. v. Erasmo Jack De Sequeria(Dead) Through L. Rs., reported in AIR 2012 SC 1727, wherein, in paragraph-81 the concept of due process of law has been explained. The learned counsels submits that the principle of natural justice has to be read into the concept of due process of law and without giving any opportunity as prescribed under the statute holding the field, no steps for eviction can be taken against the petitioners.
6. Per contra, Shri P. K. Kalita, the learned Sr. counsel submits that the very basis of asserting the right on the assumption that the land in question is a Government land is erroneous. The learned Sr. counsel categorically submits that the land is a part and parcel of the land allotted to the Guwahati University and it is the Guwahati University which is the owner of the land in question. Since the ownership vests with the Guwahati University, the application of Section 18 of the settlement Rules, per-se may not be there. Referring to the earlier directions passed by this Court in the two writ petitions filed by the petitioner and similarly situated persons, it is submitted that the directions and observations were duly followed and notices for evicting was issued by following the due process of law and the Page No.# 5/7 present act of filing the writ petition is nothing but a dilatory tactic to delay the process of eviction.
Referring to the affidavit-in-opposition filed by the Guwahati University dated 20.08.2016, the learned Sr. counsel has submitted that there are categorical averments made in paragraph 10 and 13 regarding following of the procedure prescribed by law in initiating the eviction process. As regards the contention of the petitioners that representations were submitted in this regard, the learned counsel by referring to paragraph 11 of the affidavit submits that no representation was ever received by the authorities. Referring to the letter dated 15.05.2014 annexed as Annexure-3 to the affidavit, it is submitted that even the aid of the District authorities were taken for maintenance of law and order in the process of eviction which was scheduled on a particular date. It is further submitted that since the land in question was allotted to the Guwahati University, no indefeasible right is accrued upon the petitioners to sustain the present challenge. The learned counsel has also brought to the notice of this Court, to a report submitted by the Circle Officer pursuant to orders passed by this Court. The Circle Office in his communication dated 01.09.2017 has categorically stated that the land in question is a part of the campus of the Guwahati University and is clearly demarcated. In the said report, the encroachment made by the petitioners has also been indicated in a tabular form as well as by a trace map sketch. The learned Sr. counsel submits that in view of such categorical findings of fact placed on record by the Circle Officer pursuant to an order of this court, there is no dispute at all that the petitioners are encroachers. It may be mentioned that the petitioners had filed an additional-affidavit with regard to the aforesaid report dated 01.09.2017 of the Circle Officer whereby, the authenticity of the same has been sought to be questioned. It has also been stated that the area in question consist of rocks and hills which is not reflected in the report.
7. Ms. D. D. Barman, learned State counsel has supported the stand of the Guwahati University. She further submits that factually there being no dispute regarding the ownership of the land as well as the status of the petitioners who have been categorized as encroachers which is evident from the communication dated 01.09.2017, the instant writ petition is liable to be dismissed.
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8. The rival contentions of the learned counsels have been duly considered and the materials before this Court have been carefully examined.
9. From the materials placed before this Court and after hearing the parties, there is no manner of doubt that the land in question is a part of the land allotted to the Guwahati University and from the pleadings of the writ petition itself, the status of the petitioners as encroachers is fully established. The only right which the petitioners have tried to enforce is to treat them as bona fide occupiers, who have been occupying this land for a considerable length of time and therefore, before evicting them, due process of law should be followed. Though the Division Bench of this Court in the case of Dunseri Petrochem (Supra) had laid down that duration of occupation is a relevant consideration, the facts of that case is distinguishable as in that case, the duration was more than hundred years and the land in question was a Khas land. The case of Kamala Kanta Deka (Supra) may not come to the aid of the petitioners since the observations were made in connection with Government land where Rule 18 of the Settlement Rules is applicable.
10. Shri Upadhyay has also placed reliance on a communication dated 03.10.1989 of the Revenue (Settlement) Department regarding reversion of Government land reserved for specific public purpose which have not been used within a period of 3 (three) years. Though it was submitted that the land in question was hilly and full of rocks and was not used by the University, the notification may not be applicable, in view of the fact that the land in question was a part and parcel of the entire part of land allotted to the Guwahati University. Therefore, the question of not using the land by the University cannot arise.
11. This Court is conscious of the fact that the land being a part of the campus of the Guwahati University has to be encroachment free. Already from the first round of litigation in the year 2000, almost 20 years had elapsed where the petitioners had the privilege of unauthorizedly occupying the land of the Guwahati University. This Court cannot be oblivious of the fact that the mere fact of filing one writ petition after the other with the same cause of action cannot give rise to fresh cause of action, rather this Court deprecates such practice adopted by the petitioners.
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12. Without expressing any further on the conduct of the petitioners, this Court is of the opinion that no case for interference by this Court is made out and accordingly the writ petition is dismissed.
13. The interim order passed on 28.01.2015, stands vacated.
14. The communication dated 01.09.2017 of the Circle Officer, Guwahati Revenue Circle is made a part of the records.
JUDGE Comparing Assistant