Gauhati High Court
Smt. Jeewan Madhuri Neog Bora vs The State Of Assam And Ors on 31 March, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 530 OF 2011
SMT. JEEWAN MADHURI NEOG BORA,
W/O. LATE ATUL CHANDRA BORA,
R/O. AJALI TORA,
BEAUTY PUBLICATION BUILDING,
BHANGAGARH, GUWAHATI - 5,
DIST : KAMRUP (M), ASSAM.
............ Petitioner
-Versus-
1. THE STATE OF ASSAM,
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE
GOVT. OF ASSAM,
REVENUE & DISASTER MANAGEMENT DEPARTMENT,
DISPUR, GUWAHATI - 6.
2. THE SECRETARY TO THE GOVT. OF ASSAM,
REVENUE (S) DEPARTMENT,
REVENUE BRANCH, DISPUR, GUWAHATI - 6.
3. THE DEPUTY COMMISSIONER,
KAMRUP (M), GUWAHATI.
4. THE RESETTLEMENT OFFICER,
OFFICE OF THE RESETTLEMENT,
GUWAHATI, KAMRUP.
5. SHRI DEVA KANTA SAIKIA,
@ DEVA KUMAR SAIKIA, ADVOCATE,
S/O. SHRI PURNA KANTA SAIKIA,
R/O. BORBARI, UPPER HENGRABARI,
VIP ROAD, P.S : DISPUR, GUWAHATI - 36, KAMRUP (M),
ASSAM.
6 (a). SMTI. ZIMI SAIKIA,
W/O. LATE HEM KANTA SAIKIA.
6 (b). SRI MOHIT CHANDRA SAIKIA,
S/O. LATE PURNA KANTA SAIKIA.
6 (c). SMTI. DIPALI SAIKIA,
W/O. LATE HOMESWAR SAIKIA.
6 (d). SRI TARUN CHANDRA SAIKIA,
W/O. LATE PURNA KANTA SAIKIA.
NOS. 6 (a) TO 6 (d) ARE RESIDENTS OF VILLAGE - ALENGISATRA,
P.O. SENCHOWA, DIST - NAGAON, ASSAM.
6 (e). SMTI. RITUMONI SAIKIA,
W/O. LATE ANIL SAIKIA.
R/O. BORBARI, VIP ROAD, GUWAHATI,
DISTRICT - KAMRUP (M), ASSAM.
7. SHRI ANIL SAIKIA,
S/O. LATE PURNA KANTA SAIKIA,
R/O. BORBARI, UPPER HENGRABARI,
VIP ROAD, PS : DISPUR, GUWAHATI - 36, KAMRUP (M),
ASSAM.
8. SHRI RAMESH BARUAH,
S/O. BAPUKAN BARUAH,
R/O. BORBARI, UPPER HENGRABARI,
VIP ROAD, PS : DISPUR, GUWAHATI - 36, KAMRUP (M),
ASSAM.
9. THE SENIOR SUPERINTENDENT OF POLICE,
DISPUR, GUWAHATI.
10. THE OFFICER-IN-CHARGE,
DISPUR POLICE STATION.
.......... Respondents
For the Petitioner : Mr. BD Das, Sr. Advocate.
Mr. HK Sarma, Advocate.
Mr. D Nath, Advocate.
For the Respondents : Mr. RP Sarmah, Sr. Advocate.
Mr. PK Deka, Advocate.
Mr. RK Bora, Govt. Advocate, Assam.
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
Dates of Hearing : 01.10.2013.
Date of Judgment : 31.03.2014.
Judgment & Order (CAV)
This writ proceeding portrays a disturbing picture. Petitioner is the widow of a legal professional, who at one point of time adorned the office of Addl. Advocate General of the State. Petitioner claims that the contesting respondent i.e., respondent No. 5 was a former junior of her late husband. Her allegation against respondent No.5 is that he has encroached upon and WPC No. 530/2011 Page 2 of 27 taken over the adjacent plot of land allotted to her and her late husband by the Govt. while he was asked to look after the property. If such an allegation of the widow of the senior against a former junior is not enough, the manner in which the litigation on behalf of the petitioner has been conducted has further compounded the issue. A larger issue of considerable public interest had also surfaced during the hearing of the case which has drawn the attention of the Court. The issue is allotment/settlement of land to individuals by the Govt. in Greater Guwahati and other towns of the State.
02. Having said what had to be said, I now first proceed to deal with the grievance raised by the petitioner.
03. Case of the petitioner is that her late husband was a practicing lawyer of the Gauhati High Court and a designated Senior at that time. He was also the Addl. Advocate General of Assam. Respondent No. 5 was one of his juniors.
04. Petitioner and her husband made an application before the Government for allotment of land. Vide letter bearing No. RSS.878/90/15, dated 24.07.1992, issued by the Deputy Secretary to the Govt. of Assam, Revenue (S) Department, 1 katha 10 lechas of Sarkari land covered by dag No. 192 of village No. 1 Hengrabari N.C. under Beltola Mouza within Guwahati city was settled in the name of the petitioner and her husband for residential purpose subject to payment of 60% land value as premium. The land value was fixed at Rs. 20,000.00 per katha. On 19.03.1993 possession of the said land was handed over to the petitioner's husband by the Circle Officer, Dispur Revenue Circle, Guwahati.
WPC No. 530/2011 Page 3 of 27
05. Respondent No. 5 had also filed an application along with the petitioner and her husband for settlement of land. By letter, also dated 24.07.1992, issued by the Deputy Secretary to the Govt. of Assam, Revenue (S) Department, 1 katha 10 lechas of Sarkari land covered by dag No. 192 of village No. 1, Hengrabari under Beltola Mouza was settled with the respondent No. 5 and his wife at the same price.
06. According to the petitioner, both the plots of land are adjacent. Petitioner's husband developed his land and constructed the boundary fencing. He also constructed one temporary shed on his land and since then, they have been possessing the land. Respondent No. 5 constructed a house on his adjacent plot of land and he has been living there since then. Being adjacent land holder, on being requested by petitioner's husband, respondent No. 5 was also looking after the land of the petitioner.
07. Husband of the petitioner died on 31.01.1999. At the time of his death, petitioner and her husband were living in a rented house at Jorpukhuri, Uzanbazar, Guwahati. After recovering from her bereavement, petitioner went to inspect the land and also to repair the temporary shed on 23.04.2004. When she reached her plot of land, respondent No. 5 along with some of his associates resisted the petitioner claiming that the land belongs to him. Petitioner noticed that her land has been encroached upon by the respondent No. 5 by removing the boundary fencing on the northern side and by blocking the entrance to her land.
WPC No. 530/2011 Page 4 of 27
08. Petitioner then filed Title Suit No.219/2004 in the Court of Munsiff No. 1 at Guwahati. The suit was instituted for declaration of her right, title and interest over the said land and also for recovery of possession. Respondent No. 5 contested the suit by filing written statement contending that petitioner had given wrong description of her land, which was, in fact, allotted to the father of respondent No. 5 by the Govt. on 25.10.2000. Respondent No. 6 (Purna Kanta Saikia) was the father of respondent No. 5, who has since expired and has been substituted by his other legal heirs. He had also filed written statement in the suit claiming that the land belonged to him as per Govt. allotment.
09. In the course of the civil suit, the trial court called for a report from the revenue authorities for identification of the suit land. According to the petitioner, respondent No. 4 submitted report dated 08.08.2008 changing the trace map of the area. Land which was allotted to the petitioner and her husband was shown as land belonging to respondent No. 6 (Purna Kanta Saikia).
10. Petitioner then filed representations dated 10.07.2010 and 24.11.2010 before the Principal Secretary to the Govt. of Assam, Revenue Department, Secretary of the said Department and the Deputy Commissioner, Kamrup (M) for cancellation of the settlement of land made in favour of respondent No. 6 (Purna Kanta Saikia) and to restore her possession over the land which was settled with her and her husband.
WPC No. 530/2011 Page 5 of 27
11. As no decision has been taken, the present writ petition has been filed for quashing of settlement of land in favour of respondent No.6 and for a direction to the respondents to hand over possession of the land to the petitioner as per settlement order dated 24.07.1992. Further prayer made is for quashing of report dated 08.08.2008.
12. Respondent No. 3 has filed an affidavit. It is stated that as per record a plot of land measuring 1 katha 10 lechas (4.01 Are) covered by dag No.192/237 of No. 1 Hengrabari village under Beltola Mouza was settled in the name of respondent No. 5 and the said settlement is continuing in his name. Another plot of land measuring 1 katha 10 lechas (4.01 Are) covered by dag No. 192/238 of village No. 1 Hengrabari under Beltola Mouza was settled with the petitioner and her husband and the said settlement is continuing. Further, a plot of land measuring 1 katha (2.68 Are) covered by dag No.192/318 in the same area was settled in the name of respondent No.6 (Purna Kanta Saikia) and the said settlement is continuing. During resettlement operation, the dag numbers have been changed. A detailed inquiry was conducted on the grievance expressed by the petitioner. As per inquiry report, major portion of the land in the name of petitioner and her husband is occupied by respondent No. 5 and the rest are occupied by two persons, namely Sri Anil Saikia and Sri Ramesh Baruah. Paragraph 7 of the said affidavit reads as under: -
"That with regard to the statements made in paragraph 6 of the writ petition, the deponent reiterating the statements made in paragraph 5 of the instant affidavit-in- opposition begs to state that as per the available records a plot of land measuring 1 K 10 Lechas (4.01 Are) covered by WPC No. 530/2011 Page 6 of 27 Dag No. 192/237 of No. 1 Hengerabari Village under Beltola Mouza was settled in the name of Sri Deva Kanta Saikia, respondent No. 5 and the said settlement is continuing in his name. Another plot of land of 1 K 10 Lechas (4.01 Are) covered by Dag No. 192/238 of Village No. 1 Hengrabari under Beltola Mouza was settled in the name of Atul Ch. Bora i.e. husband of the petitioner and the said settlement is continuing in his name. Another plot of land of 1 Katha (2.68 Are) covered by Dag No. 192/318 was settled in the name of Purna Kanta Saikia, and the said settlement is continuing in his name as per the records which are created from the original Dag No. 192 (old). During the resettlement operation, the Dag No. 192/237 has been converted to new Dag No. 899, 192/238 to another new Dag No. 896 and Dag No. 192/318 to new Dag No. 895. It is stated that out of total land of 321 Bigha 4 Katha 0 Lechas (4304.98 Ares) covered by Dag No.192 (old) of the Village No. 1 Hengrabari under Beltola Mouza, 1 Bigha 4 Katha 18 Lechas (26.48 Are) is presently recorded as Periodic Patta Land and the remaining part of 319 Bigha 4 Katha 2 Lechas (4278.50 Are) are still recorded as Government Land in the revenue record.
A detailed enquiry was conducted in response to the grievance of the petitioner. The Circle Officer, Dispur Revenue Circle, Dispur vide his letter bearing No. Dist-
19/2011/5564, dated 22.11.2011 communicated the findings of the enquiry enclosing the Lat Mandal report dated 22.11.2011 enclosing the copies of the Chitha, Jamabandi and the Trace Map.
From the aforesaid letter of the Circle Officer, Dispur Revenue Circle dated 22.11.2011 and the report of the Lat Mandal dated 22.11.2011, it could be ascertained that, No. 1 Hengerabari Village under Beltola Mouza, land measuring 4.01 Are covered by Dag No. 899 of KP Patta No. 106 is recorded in the name of Sri Debakanta Saikia, son of Purna WPC No. 530/2011 Page 7 of 27 Kanta Saikia, land measuring 2.68 Are covered by Dag No. 895 of KP Patta No.157 is recorded in the name of Purna Kanta Saikia, son of Late Belaram and land measuring 4.01 Are covered by Dag No.896 of KP Patta No. 16 is recorded in the name of Sri Atul Bora, son of Motiram Bora. It was further noted that land measuring 4.01 Are covered by Dag No.899 of KP Patta No.106; land measuring 2.68 Are covered by Dag No. 895 of KP Patta No. 157 and land measuring 3.29 Are covered by Dag No.896 of KP Patta No.16, all total a plot of land measuring 11.26 Are in the Revenue Village-Hengerabari under Mouza-Beltola is found to be in the possession of Sri Debakanta Saikia, son of Purna Kanta Saikia. Further land measuring 0.40 Are covered by Dag No. 896 of KP Patta No.16; land measuring 2.16 Are covered by Dag No. 898 (Govt. land) and land measuring 0.78 Are covered by Dag No. 897 of KP Patta No.219, a total plot of land measuring 3.34 Are is in the possession of Sri Anil Saikia, son of Late Purna Saikia. Further, 0.32 Are covered by Dag No. 896 of KP Patta No. 16; 0.96 Are covered by Dag No. 898 (Government land) and 1.24 Are covered by Dag No.897 of KP Patta No. 219, a total plot of land measuring 2.52 Are is in the possession of Sri Ramesh Baruah, son of Bapukan Baruah.
As per the enquiry report major portion of land in the name of Sri Atul Borah (3.29 Are) is occupied by Sri Debakanta Saikia and the rest are occupied by Sri Anil Saikia and Sri Ramesh Baruah.
It, thus, appears that the land measuring 4.01 Are i.e. 01 Katha 10 Lechas covered by Dag No.192 (old)/238 (old)/896 (new) of KP Patta No. 16 and standing in the name of Atul Bora, son of Motiram Bora are in occupation of the following 3 (three) persons in the following manner - WPC No. 530/2011 Page 8 of 27
Sl. No. Name Area of land
belonging to Atul
Bora under their
possession
1. Sri Debakanta Saikia 3.29 Are
S/o. Purna Kanta Saikia
2. Sri Anil Saikia 0.40 Are
S/o. Purna Kanta Saikia
3. Sri Ramesh Baruah 0.32 Are
S/o. Bapukan Baruah
Total 4.01 Are
"
13. Respondent No. 5 has filed two affidavits, one in response to the writ petition and the other in response to the affidavit of respondent No. 3. In the counter affidavit to the writ petition, stand taken is that petitioner has raised disputed questions of fact, which may not be gone into in a writ proceeding. Moreover, petitioner had already availed her remedy by instituting civil suit. Reliefs claimed in the writ petition are matters of adjudication by the Civil Court. Thus, writ petition is not maintainable. On merit, it is stated that land was settled with Purna Kanta Saikia in the year 2000, whereafter he was put into possession. Respondent No. 5 has also denied that he was a junior of petitioner's husband, though he has admitted to have conducted several cases jointly. Land which was allotted to the petitioner and her husband is located about 75 feet away from the side of the Narengi-Khanapara Road (now called VIP road). The said land is now under possession of one Sri Ramesh Baruah (respondent No. 8). Respondent No. 8 was put in possession over the land by petitioner's husband as caretaker. Petitioner is not a landless lady. She has several plots of land in and around Guwahati. Therefore, writ petition should be dismissed. WPC No. 530/2011 Page 9 of 27
14. In the affidavit filed against the affidavit of respondent No. 3, respondent No. 5 has stated that the report relied upon by respondent No.3 does not reflect the correct position. No on spot enquiry was conducted, which was prepared only on verification of papers in the office. This report is in conflict with the report submitted before the Civil Court and, therefore, it should not be relied upon.
15. Additional affidavit has been filed by the petitioner stating that petitioner had filed Petition No. 283/2011 on 22.02.2011 before the Court of Munsiff No. 4, Kamrup for withdrawal of TS No. 219/2004. However, the suit was dismissed on 11.04.2012 for non-appearance of both the parties. Thereafter, petitioner did not pursue the matter as she had already given up the civil suit by filing the aforesaid petition. After receipt of the affidavit-in- opposition filed by the respondent No. 3, petitioner has filed a complaint before the Senior Superintendent of Police, Guwahati on 14.06.2012 alleging land grabbing of her land by the respondent No. 5 and the others.
16. Other respondents have not filed affidavit.
17. Heard Mr. BD Das, learned Senior Counsel for the petitioner, Mr. RP Sarmah, learned Senior Counsel for respondent No. 5 and Mr. PK Deka, learned counsel appearing for respondent No. 6. Also heard Mr. RK Bora, learned Govt. Advocate, Assam.
18. Mr. Das, learned Senior Counsel for the petitioner submits that as per the Land Policy, 1989 of the Government, respondent No. 6 could not have been settled with Govt. land, as he did not fulfill the criteria for such WPC No. 530/2011 Page 10 of 27 settlement. Since his son i.e., respondent No. 5 had been settled with land, he (respondent No. 6) could not have been given further land settlement in terms of the said land policy. Settlement of land in favour of respondent No.6 should therefore, be set aside and quashed. He further submits that in view of the stand taken by respondent No. 3 in his affidavit, the State should now ensure that the possession of the land which was settled with the petitioner as per settlement order dated 24.07.1992, which has neither been cancelled nor modified till date, should be restored to the petitioner by clearing all encroachments.
19. Both Mr. Sarmah, learned Senior Counsel and Mr. Deka, learned counsel appearing for the contesting respondents have vehemently argued on the maintainability aspect. They submit that the writ petition not only raises disputed questions of fact, which is eminently within the domain of the civil court, but alternative remedy, which is both adequate and efficacious, is available for adjudication of such dispute. In a case where the basic facts are disputed and complicated factual issues depending on evidence are involved, the writ court is not the proper forum. As a matter of fact, the petitioner herself had availed her legal remedy for adjudication of such disputed questions of fact by filing a civil suit. Therefore, she could not have filed the present writ petition without withdrawing the civil suit, which, in any case, has now been dismissed for default. Since petitioner's suit has been dismissed, she is barred from pursuing the present writ petition as the issue raised in the writ petition is substantially same as the issue that was raised in the civil suit. Mr. Deka further submits that after the civil suit was dismissed for default, petitioner had filed an application for recall of the dismissal order WPC No. 530/2011 Page 11 of 27 to enable withdrawal of the suit with liberty to institute fresh proceeding. That application was also dismissed as being time barred as no condonation petition was filed. Thereafter, a fresh application has been filed along with a condonation petition. On merit also, they have argued that there is no encroachment either by respondent No. 5 or by respondent No. 6 over the land of the petitioner, which was proved by the report dated 08.08.2008 submitted before the trial court. Petitioner cannot challenge the report dated 08.08.2008 as the same was submitted to the civil court on its order. Petitioner had the liberty to question the said report but failed to do so. She is, therefore, stopped from doing so in the present proceeding.
20. In his reply, Mr. Das, learned Senior Counsel for the petitioner submits that when the petitioner has filed the writ petition, it shows that petitioner has abandoned the civil suit. In any case, petitioner has questioned the settlement of land with respondent No. 6, which has enabled respondent No.5 being the son of respondent No. 6 to grab the land of the petitioner, which was not the subject matter of the civil suit. Such settlement being in contravention of the land policy, is liable to be interfered with by this Court. Further, petitioner wants effective implementation of the settlement order dated 24.07.1992. He, therefore, submits that writ petition is not only maintainable but petitioner is entitled to the reliefs as sought for.
21. Submissions made have been considered. I have also perused the materials on record.
WPC No. 530/2011 Page 12 of 27
22. Before proceeding further, reliefs sought for by the petitioner in the present writ proceeding may, first, be noticed. The prayer portion of the writ petition reads as under: -
"In the premises aforesaid, it is most respectfully prayed that Your Lordships would be pleased to admit this petition and issue a Rule calling upon the respondents to show cause as to why the allotment of the land in favour of the respondent No.6 vide allotment order dated 25.10.2000 and possession certificate dated 19.02.01 (at Annexure-8) handing over land in favour of the respondent No. 6 shall not be set aside and quashed and why the report dated 08.08.2008 (at Annexure-11) shall not be set aside and quashed and why the respondent authorities shall not be directed to hand over the possession of the petitioner's land as per allotment order dated 24.07.1992 (at Anneure-1) and Trace Map (at Annexure-3) and after return of the Rule and after hearing the parties be further be pleased to make the Rule absolute by giving full and complete relief to the petitioner and/or pass such order or further order/orders as your Honour may deem fit and proper in the facts and circumstances of the case".
23. Thus petitioner seeks quashing of land settlement dated 25.10.2000 in favour of respondent No. 6 (Purna Kanta Saikia) and the possession of the said respondent over the land allotted to him as per the above settlement order vide the possession certificate dated 19.02.2001. The second prayer of the petitioner is for quashing of the report dated 08.08.2008 (Annexure-II to the writ petition), which was submitted by the Settlement Officer, Guwahati before the Munsiff No. 4, Kamrup in connection with TS WPC No. 530/2011 Page 13 of 27 No.219/2004. The final prayer made in the writ petition is for a direction to the respondents to hand over possession of the land to the petitioner as per allotment order dated 24.07.1992 and as per the Trace Map (Annexure-3).
24. Before deliberating on the reliefs claimed by the petitioner, it would be apposite to see how the parties to the lis i.e., the petitioner, respondent No. 5 and respondent No. 6 have been settled with land by the Government.
25. It is not disputed that all the three parties named above, were settled with their respective plots of land as per Land Policy, 1989 framed by the Govt. of Assam and notified vide notification No.RSS.359/88/23, dated 13 July, 1989. Clause 14 of the said Land Policy is relevant for the purpose of the present case. It deals with settlement and reservation of land in towns. Clause 14.1 says that no land within municipal corporation or any town constituted under the Assam Municipal Act, 1956 shall be settled for agricultural purpose and Clause 14.2 limits the area of land to be settled per family for homestead purpose. Clause 14.3 specifically deals with settlement of land within Greater Guwahati and other towns. This aspect of the matter will be dealt with more in detail in the latter part of the judgment. For the present, suffice it to say that as per the said provision, land within Greater Guwahati and any other town may be settled on payment of due premium with the indigenous persons of the State in order of preference mentioned therein. Various situations have been enumerated therein which would entitle an indigenous person of the State to settlement of land by the Government WPC No. 530/2011 Page 14 of 27 within Greater Guwahati or any other town subject to fulfillment of the conditions mentioned therein.
26. All the three parties have been settled with land by the Govt. as per the provisions contained in Clause 14 of the Land Policy. As a matter of fact, both petitioner and respondent No. 5 were settled with land by the Govt. on the same day i.e., 24.07.1992. Respondent No. 6 (Purna Kanta Saikia), father of respondent No. 5 was allotted similar plot of land in the vicinity of the lands settled with petitioner and respondent No. 5 on the same terms and conditions. This settlement was made in the year 2000, to be precise on 25.10.2000. Challenge to the said settlement has been made by filing the present writ petition in the year 2011 i.e., after a period of 11 years. Nothing has been stated by the petitioner explaining the delay in instituting the challenge. In fact, as per the own statement of the petitioner, when she filed TS No.219/2004, respondent No. 5 filed written statement stating that land claimed by the petitioner actually belongs to his father (respondent No.6), which was allotted to him by the Govt. on 25.10.2000. Respondent No.6 also filed his written statement in the suit, where also, he stated about settlement of land with him by the Govt. These written statements, it appears, were filed in the years 2004 and 2006 respectively. Even if it is accepted that the petitioner came to know about settlement of land with respondent No. 6 after filing of the written statements, still then there is substantial delay of seven years in filing the writ petition. This delay has remained unexplained. In the meanwhile, respondent No. 6 expired on 11.11.2008 and he has now been substituted by his legal heirs. For the delay in instituting the challenge, which has remained unexplained, this Court is not inclined to examine the same. WPC No. 530/2011 Page 15 of 27 Moreover, petitioner is herself a beneficiary of land settlement as per the Land Policy under which respondent Nos. 5 & 6 had also been favoured with settlement of land by the Government. When the Land Policy, more particularly Clause 14 thereof, which pertains to settlement of land within Greater Guwahati and other towns by the Government is itself questionable (which has been separately dealt with in the latter part of the judgment), this Court is not inclined to entertain the belated challenge, that too at the instance of the petitioner who is herself a beneficiary of such largesse.
27. Coming to the second relief sought for by the petitioner, namely, quashing of the report dated 08.08.2008 issued by the Settlement Officer, Guwahati (Annexure-II), it is seen that the said report was submitted to the Civil Court as per order of the Court in TS No.219/2004 instituted by the petitioner herself. The said report allegedly demarcates the land of the petitioner and has become a part of the record of TS No.219/2004, which has been dismissed for non-prosecution. Petitioner has adequate remedy under the Civil Procedure Code to challenge such a report. Examination of such a challenge would require adducing of evidence and verification of facts, including on spot physical verification. When adequate remedy is available to the petitioner, this Court is not inclined to invoke its extra ordinary jurisdiction under Article 226 of the Constitution of India, where the contours of the dispute are entirely factual without any legal connotation. The second prayer made is, therefore, declined.
28. Coming to the third prayer i.e., for a direction to the respondents to ensure possession of the petitioner over the land settled with her as per WPC No. 530/2011 Page 16 of 27 order dated 24.07.1992, ordinarily, this Court would have declined to entertain this prayer, since this also involves adjudication of disputed questions of fact and when the petitioner herself had invoked the ordinary civil remedy by instituting civil suit for declaration of right, title and interest over the said land and also for recovery of possession. The writ court normally does not enter into such an arena not because it does not possess such power or jurisdiction, but because it does not entertain such challenge on principles of self imposed restriction when adequate and efficacious alternative remedy to adjudicate disputed questions of fact is available, to ensure that judicial discipline is maintained. But in an appropriate case, the writ court can still invoke its jurisdiction even where disputed questions of fact are involved. However, considering the fact that petitioner, a widow, is before this Court since the year 2011 and her civil suit instituted in the year 2004 having made no headway at all, this Court feels that shutting the doors of this Court on the petitioner at this stage, who is only seeking custody of her land as settled with her by the Govt., would neither be just nor fair. Moreover, this entire problem where boundaries have become blurred is a creation of the State Govt. because of settlement of land to the parties adjacent to each other without proper description of land and demarcation of boundary. Nobody has denied or disputed that petitioner and her late husband were settled with land measuring 1 katha 10 lechas covered by Dag No. 192 of village No. 1 Hengerabari under Beltola Mouza vide settlement order dated 24.07.1992. The said settlement order has neither been revoked nor modified by the Govt. Since it is the Govt. which has created the situation, it is the Govt., which should now clear the mess. As the Govt. has WPC No. 530/2011 Page 17 of 27 settled land with the petitioner, it must ensure that petitioner is able to enjoy the fruits of such settlement. Needless to say, to ensure that, the entire administrative machinery is at the command of the Govt. Since the Govt. had made the settlement in favour of the petitioner, it is legally obliged to ensure that the petitioner is able to enjoy the said settlement.
29. Accordingly and in the light of the discussions made above, respondent No. 1 i.e., Principal Secretary, Revenue (S) Department, Govt. of Assam is directed to ensure that petitioner is handed over possession of the land covered by the settlement order dated 24.07.1992 (Annexure-I) by doing all that is necessary in accordance with law within a period of six (6) months from the date of receipt of a certified copy of this order.
30. While examining the claim of the rival parties and as already noticed above, the attention of the Court was drawn to the Land Policy, 1989 of the Govt. of Assam. The issue of settlement of Government land with private individuals at rates much lower than the market value on mere filing of applications to the exclusion of others is an issue of considerable public interest. This issue had surfaced during the hearing of the case as all the three parties to the lis are beneficiaries of such settlement. Therefore, this aspect is also required to be gone into in some detail.
31. But before that, a word or two about the way in which the litigation had been conducted. The civil suit (Title Suit No. 219/2004) was instituted by the petitioner in the year 2004. While it was pending, the present writ petition was filed on 25.01.2011. Petition for withdrawal of the suit with liberty was filed only thereafter under Order 23 Rule 3 on WPC No. 530/2011 Page 18 of 27 22.02.2011. While the said petition was pending, the suit itself was dismissed for non-appearance of the parties on 11.04.2012. Petition filed for recall of the order dated 11.04.2012 and for allowing withdrawal of the suit with liberty was dismissed on the ground of limitation as the petition was filed belatedly without condonation petition. Thereafter, fresh petition was filed with condonation petition, in which, it appears, no progress has been made. The above sequence of events only goes to show how casually the litigation was conducted on behalf of the petitioner. In the additional affidavit filed by the petitioner on 21.06.2012, stand taken is that during the pendency of the writ petition, petition for withdrawal of the suit was filed but the suit itself was dismissed for default whereafter petitioner has given up the suit. Is this the legal position? Can it be allowed? It is another matter that notwithstanding the above, the Court has entertained the writ petition to a limited extent in so far relief No. 3 is concerned for the reasons mentioned above. And what about the respondent No. 5? He denies being the junior of Late Atul Bora, husband of the petitioner. Even if that is accepted, Late Atul Bora was certainly his colleague, a senior colleague at that. The fact that equal plots of adjacent land were settled with them by the Government on the same day indicates that both of them might have applied for land together and is a reflection of their close association. What the respondent No. 5 is saying may be correct or may not be correct. But could he not have conducted himself in a better way? Beyond this, I do not think anything more needs to be said.
32. It has already been noted in the earlier part of this judgment about the land policy. More specifically, it is Clause 14, which deals with WPC No. 530/2011 Page 19 of 27 settlement and reservation of land in towns. Clause 14.3 deals with settlement of land within Greater Guwahati and in the other towns. Since Clause 14.3 is relevant, the same is quoted hereunder: -
"14.03. Land within Greater Guwahati notified under Government Notification No.RSR21/59/126, dated 1st October, 1966 and in any other Towns may be settled on payment of due premium with the indigenous persons of the State in order of preference as follows -
(i) An indigenous person, who has no land in his name or in the name of any member of his family and who has been in occupation of Government land with members of his family for last 15 years or more.
(ii) An indigenous person, who has land in rural area of the State, but has no land in City or Town in his name or in the name of any member of his family and has been in occupation of Government land with members of his family for last 15 years or more.
(iii) An indigenous person, who has no land in rural areas or in City or Town in the State either in his name or in the name of any member of his family and has been staying in urban area for last 15 years or more with the members of his family.
(iv) An indigenous person, who has land in rural areas, but has no land in any urban areas either in his name or in the name of any member of his family, and who has been residing in urban area for last 15 years or more with members of his family:
Provided that such person is required to reside in urban area permanently by very nature of his service/professions and who has not been able to purchase land in urban area on account of poor pecuniary condition.
(v) Other indigenous landless persons of the State."WPC No. 530/2011 Page 20 of 27
33. Thus Clause 14.3 visualizes five situations where land can be settled by the Government with an indigenous person. Sub-clause (i) provides that an indigenous person who has no land in his name or in the name of any member of his family and who has been in occupation of Govt. land with members of his family for last 15 years or more would be entitled to settlement in first preference. As per sub-clause (ii), an indigenous person who has land in rural area of the State, but has no land in city or town in his name or in the name of any member of his family and has been in occupation of Govt. land with members of his family for last 15 years or more, would be entitled to settlement of land in second preference. As per sub-clause (iii), an indigenous person who has no land in rural area or in city or any town in the State either in his name or in the name of any member of his family and has been staying in urban area for last 15 years or more with the members of his family would be entitled to settlement in third preference. Sub-clause (iv) provides that an indigenous person who has land in rural area, but has no land in any urban area either in his name or in the name of any member of his family and who has been residing in urban area for last 15 years or more with members of his family would also be entitled to settlement of land. However, as per the proviso, such person is required to reside in urban area permanently by very nature of his service/profession and who has not been able to purchase land in urban area on account of poor pecuniary condition. Lastly, as per sub-clause (v), other indigenous landless persons of the State would also be entitled to settlement of land.
34. Though there may be some justification entitling landless people to settlement of land, who are in occupation of Govt. land for last 15 years or WPC No. 530/2011 Page 21 of 27 more, this Court is unable to find any justification at all for settlement of land to the categories of persons covered by sub-clauses (ii) and (iv) above. As per sub-clause (ii), an indigenous person who has land in rural area, but has no land in city or town either in his name or in the name of any member of his family and who has been in occupation of Govt. land with members of his family for last 15 years or more becomes eligible for settlement of land in Greater Guwahati or in any other towns. To the comprehension of the Court, this provision defies all logic. Why should the State encourage people, who already have land in rural areas, to come to Guwahati city or other towns of the State and encroach upon Govt. land so that after 15 years of such encroachment, they become entitled to settlement of land in Guwahati city or any other towns at Govt. rate, which is usually a fraction of the market value of the land. More astonishing is the provision contained in sub-clause (iv), which enables an indigenous person who has land in rural area, but has no land in urban area either in his name or in the name of any of his family members and who has been residing in urban area for last 15 years or more with members of his family. As per the proviso, such stay in urban area must bear some permanence by virtue of his service or profession and that he has not been able to purchase land in urban area on account of poor pecuniary condition. Question is why should such a person, who already has land in rural area, staying in an urban area in connection with his service or because of professional requirement be settled with land by the Govt. at a throw away price only on the ground that he is unable to purchase such land in urban area because of poor pecuniary condition? Or why should a person who has land in rural area of the State, but has no land in the city or town, be WPC No. 530/2011 Page 22 of 27 favoured with settlement of land in the city or town, if he is in occupation of Govt. land with members of his family for last 15 years or more? Why should the State make an exception in favour of persons who already have land in rural areas by favouring them with settlement in urban areas? These are legitimate questions. We are a society governed by the rule of law where every State action must conform to the constitutional requirement of fairness, reasonableness and transparency. Moreover, requiring such a person to be in occupation of Govt. land for 15 years or more virtually encourages and puts a premium on illegal encroachment of Govt. land. Illegal encroachment of various categories of land has become rampant, more particularly, in Guwahati city in recent times. There cannot be any noble objective or great philosophy behind rewarding such persons with settlement of land at negligible price, who already have land in rural areas. Why should service holders and professionals like the petitioner and the respondents in the present case be made eligible for settlement of Govt. land at much lower price, thereby causing substantial loss to the State exchequer?
35. Moreover, no procedure is prescribed for settlement of such land. What Clauses 14.3(ii) and 14.3 (iv) visualize is filing of an application by a person fulfilling the criteria laid down in the two sub-clauses and if they fulfill the criteria, they would be settled with land. There would be thousands of such people, who may have land in rural areas but no land in Guwahati or in the other towns and who may be in occupation of Government land for 15 years or more in urban area or who may be staying in an urban area permanently because of his service or professional requirement. How can one be selected or preferred over another in the matter of land settlement? Such WPC No. 530/2011 Page 23 of 27 a procedure is neither transparent nor reasonable. The State Government cannot grant largesse by way of land settlement to any individual according to its sweet will and by following such arbitrary and non-transparent procedure. The State has no such unfettered discretion. In matters of distribution of State largesse, such as, allotment of land, grant of quotas etc., State action must be non-arbitrary and non-discriminatory. State action cannot be influenced by favouritism. Such discretion must be exercised on sound principles which are consistent with the mandate of Article 14 of the Constitution of India. There cannot be any unfettered discretion in such matters.
36. In the case of AKHIL BHARTIYA UPBHOKTA CONGRESS VS.
STATE OF MADHYA PRADESH & ORS., reported in (2011) 5 SCC 29, the Hon'ble Supreme Court held that there cannot be any policy of allotting land on the basis of applications made by individuals dehors an invitation or advertisement by the State. By entertaining applications made by individuals for allotment of land, the State cannot exclude other eligible persons from lodging competing claims. Any allotment of land by the State by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism violating Article 14 of the Constitution of India. This is what the Hon'ble Apex Court held in that case:-
"65. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit WPC No. 530/2011 Page 24 of 27 must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organizations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
67. This, however, does not mean that the State can never allot land to the institutions/organizations engaged in educational, cultural, social or philanthropic activities or are rendering service to the society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to WPC No. 530/2011 Page 25 of 27 institutions/organizations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organizations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.
68. The allotment of land by the State or its agencies /instrumentalities to a body/organization/institution which carry the tag of caste, community or religion is not only contrary to the idea of secular democratic republic but is also fraught with grave danger of dividing the society on caste or communal lines. The allotment of land to such bodies/organizations/ institutions on political considerations or by way of favouritism and/or nepotism or with a view to nurture the vote bank for future is constitutionally impermissible."
37. Evidently and in the light of the above declaration of law by the Apex Court, the above Clauses 14.3 (ii) and 14.3 (iv) of the Land Policy, 1989 of the Govt. of Assam cannot stand the test of judicial scrutiny on the touchstone of Article 14 of the Constitution of India. The above two provisions would therefore require a re-examination/review by the State Govt. in the Revenue Department.
38. Keeping the above aspects in mind, this Court considered the option of directing the parties to the present lis i.e., the petitioner, WPC No. 530/2011 Page 26 of 27 respondent No. 5 and the legal heirs of respondent No. 6 to pay the market value of the land settled with them. However, on due consideration, this Court has refrained from embarking upon the said course of action as all the beneficiaries of settlement of land in terms of the above two clauses are not before the Court. Directing only the petitioner, respondent No. 5 and legal heirs of respondent No.6 to pay the market value of the land to the exclusion of the other beneficiaries would neither be fair nor just.
39. Thus having regard to the above, respondent No. 1, i.e., Principal Secretary to the Govt. of Assam, Revenue Department is directed to review Clauses 14.3 (ii) and 14.3 (iv) of the Land Policy, 1989 of the Govt. of Assam keeping in view the observations made above. Such a review should be carried out within a period of six (6) months from today. Till such exercise is undertaken and carried out, State respondents are directed not to make further settlement of land in Greater Guwahati and in other towns of the State in terms of the above two clauses.
40. Writ petition is accordingly disposed of as per directions contained in paragraphs 29 and 39 above. No costs.
Judge Beep! WPC No. 530/2011 Page 27 of 27