Gauhati High Court
Rizwan Ali vs Md Mafazul Hussain And 9 Ors on 17 November, 2023
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/10
REPORTABLE
GAHC010115862023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/182/2023
RIZWAN ALI
S/O- LATE YASIN ALI,
R/O- TIPAM ROAD,
ITABHATA, DIGBOI, DIST- TINSUKIA, ASSAM
VERSUS
MD MAFAZUL HUSSAIN AND 9 ORS
S/O- LATE BASIR AHMED
2:MD. SAHAD HUSSAIN AHMED
S/O- MD MAFAZUL HUSSAIN
3:MD. SADIQUE HUSSAIN
S/O-MD MAFAZUL HUSSAIN
ALL ARE R/O ITABHATA
DIGBOI
P.O- DIGBOI
P.S- DIGBOI
DIST- TINSUKIA
ASSAM
4:THE DEPUTY COMMISSIONER
DIST- TINSUKIA
ASSAM
5:THE ADDITIONAL DISTRICT MAGISTRATE
Page No.# 2/10
DIST- TINSUKIA
ASSAM
6:THE ADDL. DEPUTY COMMISSIONER
(REV)
DIST- TINSUKIA
ASSAM
7:THE CIRCLE OFFICER
(REVENUE)
MARGHERITA REVENUE CIRCLE
MARGHERITA
DIST- TINSUKIA
ASSAM
8:THE CONCERNED LOT MANDOL
OF GRABBED LAND
DIGBOI
OFFICE OF THE CIRCLE OFFICER
(REVENUE)
MARGHERITA
DIST- TINSUKIA
ASSAM
9:THE CHAIRMAN
DIGBOI TOWN COMMITTEE
DIGBOI
DIST- TINSUKIA
ASSAM
10:THE EXECUTIVE OFFICER
DIGBOI TOWN COMMITTEE
DIGBOI
DIST- TINSUKIA
ASSA
Advocate for the Petitioner : MR. J I BORBHUIYA
Advocate for the Respondent :
Page No.# 3/10
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 17.11.2023 Heard Mr. L. Mohan, learned counsel for the petitioner.
2. The petitioner Rizwan Ali as applicant No. 2 instituted Land Grabbing Case No. 13/2015 against the respondents herein, namely, Md. Mafazul Hussain, Md. Sahad Hussain Ahmed and Md. Sadique Hussain, as land grabbers, with the State respondents through the Deputy Commissioner, Tinsukia and others as respondents. As per the application, land measuring 1 katha 2 lechas of Dag No. 424 of Periodic Patta No. 13 and land measuring 4 lechas of Dag No. 449 of Periodic Patta No. 12 together with some other land of the concerned pattas were initially purchased jointly by Taibun Nessa @ Lutful Nessa, being the grandmother of the applicants, Alibun Nessa and Afzalan Nessa. On the death of the joint purchasers the shares of Taibun Nessa and Afzalan Nessa devolved by inheritance upon the applicants and their brother Elias Ali. Subsequently, Elias Ali died. In paragraphs 15 and 16 of the application it is stated as extracted below:
"15. That while the Applicant No-2 visited the Office of the Deputy Commissioner, Tinsukia recently to enquiry about his applications dated 23-02- 2015 and 07-03-2015 whereupon directions were issued to stop construction by the Respondents, he came to learn with utter surprise that the Respondent No-2 fraudulently obtained a direction from the learned Additional Deputy Commissioner (Rev.), Tinsukia to the Executive Officer, Digboi Town Committee vide her letter No- TRKG 1/2013/249 dated 29-04-2015 to issue permission to Respondent No-2 for construction of the Dwelling House on 8 (eight) lossa of the Applicants' land under Dag No- 424 of P.P. No-13 without hearing the Applicants purportedly on the basis of an application of the Respondent No-2 Land Grabber and a wrong report of the Circle Officer (Revenue), Margherita dishonestly and secretly obtained behind the back of the Applicants by fraudulently securing mutation of 4 lossa of land in the name of Respondent Page No.# 4/10 No-2 in the land of the Applicant under Dag No-424 of P.P. No-13 aforesaid without the same being sold by the Applicants to any of the said Respondents.
(The None -Encumbrance Certificate dated 21-08-2015 for the years 2003 to 2015 is annexed herewith as Document NO-4 of Schedule B and the certified copy of the Letter No-TRKG 1/2013/249 dated 29-04-2015 of ADC (R), Tinsukia are annexed herewith as Document No- 4&5 of Schedule-B)
16. That the said mutation of the name of the Respondent No-2 in the land records of the Applicants lands of Dag No-424 of P.P. No-13 of Mouza Makum, District Tinsukia, Assam has been illegally and fraudulently obtained by the Respondents in collusion with the concerned personnel of the Office of the Circle Officer (Revenue), Margherita to grab the land of the distresses Applicants and the said illegal and dishonest mutation is liable to be set aside and quashed."
3. From a reading of the afore-extracted paragraphs in the application, it is discernible that it is the allegation of the applicants that in respect of certain land purchased by the land grabbers, which is stated to be land other than the land of the applicants, fraudulently the dag numbers had been manipulated and the dag numbers pertaining to the land of the applicants had been inserted and taking advantage of such fraudulent manipulation of the sale deed, the land grabbers are presently illegally occupying the land of the applicants.
4. In the circumstance, in the application being Land Grabbing Case No. 13/2015, amongst others, an interim prayer was made which is as extracted:
"Pending disposal of the application, Your Honour may be pleased to direct the Respondents to stop further construction and to maintain status quo in respect of the grabbed land by way of an interim direction U/S 8 (2) of the Assam Land Grabbing (Prohibition) Act, 2010 till disposal of this application."
5. The interim prayer is two-fold i.e. to stop the land grabbers from further construction over the disputed land and to maintain status quo in respect of the land grabbed by the land grabbers as an interim direction under Section 8(2) of the Assam Land Grabbing (Prohibition) Act, 2010 (for short 'the Act of 2010'). The first prayer is on the basis of the assertion of the applicant petitioner that upon indulging in land grabbing of their land, the land grabbers are undertaking Page No.# 5/10 certain construction over the land and the second prayer accordingly would have to be understood to prevent the land grabbers from indulging in any further construction over the land, although the expression 'status quo' had been used in the interim prayer.
6. As Section 8(2) of the Act of 2010 has been invoked for the purpose of interim order, we also look into the provisions of Section 8(2) of the Act of 2010 which is extracted as below:
"(2) The Special Tribunal may, either suo-moto, or on application made by any aggrieved person or any officer or authority, take cognizance of and try every case arising out of any alleged act of land grabbing, or with respect to the ownership and title to or lawful possession of, the land grabbed, whether before or after the commencement of this Act and pass such orders (including orders by way of interim directions) as it deems fit."
7. A reading of the powers under Section 8(2) makes it discernible that when the Special Tribunal take cognizance of and try every case arising out of any alleged act of land grabbing, after the cognizance of the act, to pass such orders including orders of interim direction as deems fit. In other words, the prayer for status quo under Section 8(2) of the Act of 2010 would have to be understood to be interim direction on an allegation of an alleged act of land grabbing, whereby, by the very nature of the dispute, the land grabber is in an illegal occupation of the land of the applicants.
8. Based upon the interim prayer as extracted above, the learned Additional District Judge, Margherita, in Land Grabbing Case No. 13/2015 had passed the order dated 02.11.2015 which is extracted as below:
"The case record received on transfer for disposal. Heard the learned counsel for the petitioners and also scrutinized the materials on record available at this stage.
Heard on the prayer of the petitioners for order of status-quo over the disputed land as the opposite parties/ respondents have already started to construct structure thereon.
The Court has scanned the materials at hand and after taking into account Page No.# 6/10 all aspects of the case, both the parties are hereby directed to maintain status quo over the disputed land till next date.
Call for the case records as mentioned in petition No. 2107/2015 by the petitioners.
The petitioners shall take steps for issuance of notices to the respondents/ opposite parties.
Fix 30.11.15 for appearance/ necessary order."
9. A reading of the afore-extracted order dated 02.11.2015 makes it discernible that the two-fold interim prayer of the petitioner had not been taken into consideration in its proper earnest i.e. the first the prayer to stop construction had not been taken into account and the second prayer had been allowed with an order of status quo to be maintained. The order of status quo would have to be understood in the context of the provisions of Section 8(2) of the Act of 2010, wherein the statutory provision is to pass such orders including orders by way of interim direction.
10. An order of status quo ordinarily would be understood to be requiring the parties to maintain the status as it existed on the date when the order of status quo was passed.
11. If an order of status-quo, to maintain the status as it existed on the date when the order of status-quo is passed in a land grabbing case, where by the very nature of the dispute, the land grabber is in an illegal occupation of the land of the applicant, any order of status-quo would have the implication of legitimizing the illegal occupation of the land by the land grabber. The said aspect in the context of Section 8(2) of the Act of 2010 would mean that the Special Tribunal would pass such orders including orders by way of interim directions which should not be an order of status-quo, but should be an order which may also be an order by way of interim direction restraining the land grabbers from entering the land which had been grabbed and/or to restrain the land grabbers from conducting any such activities over such land which had Page No.# 7/10 been grabbed, provided the facts and circumstances and materials on record do justify the issuing of such an order. Any order short of restraining the land grabbers from entering the land that had been grabbed and/or from restraining them from continuing with activities over the same would have the legal effect of legitimizing an illegal act of land grabbing, rather than it being an interim protection under Section 8(2) of the Act of 2010.
12. The applicants subsequently instituted Misc. (J) Case No. 115/15, Misc. (J) Case No. 42/16, Misc. (J) Case No. 94/16, Misc. (J) Case No. 3/17 and Misc. (J) Case No. 10/19 alleging that the respondent land grabbers are continuing with the construction over the land which was grabbed and that such further construction was in violation of the order of status quo. The said miscellaneous cases were decided by the learned Additional District Judge, Margherita by the order dated 28.03.2023. The learned Additional District Judge, Margherita proceeded to deal with the aforesaid miscellaneous cases instituted by the applicants by referring to Order XXXIX Rule 2A of the CPC. Order XXXIX Rule 2A provides for the consequence of disobedience or breach of injunction by providing that in the case of disobedience of any injunction granted or other order made under Rule 1 and Rule 2 of Order XXXIX or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison, unless in the meantime the Court directs his release. Admittedly, an order passed under Order XXXIX Rule 2A has its own consequences of the property of the person disobeying the order of injunction to be attached or the person be sent to civil prison. Further Order XXXIX Rule Page No.# 8/10 2A pertains to a violation of an injunction that may have been granted under Order XXXIX Rule 1 or Order XXXIX Rule 2.
13. In the instant case, it is distinctly noticeable that the aforementioned miscellaneous cases instituted by the petitioner are not under Order XXXIX Rule 2A alleging violation of any injunction granted under Order XXXIX Rule 1 or Rule
2. The said applications on facts and on its purport are applications alleging a violation of the order dated 02.11.2015 which apparently was passed under Section 8(2) of the Act of 2010, wherein there is a requirement of the Court to examine as to whether any direction is required to be passed on the allegation of land grabbing.
14. The Act of 2010 apparently is a more stringent Act to take care of the menace of land grabbing, where the Preamble itself states that whereas there are organized attempts on the part of certain lawless persons operating individually and in groups to grab, either by force or by deceitful means or otherwise, lands belonging to the Government, a public sector undertaking, a local authority, a religious or charitable institution or endowment or any other private person. Firstly, it is noticed that the learned Additional District Judge, Margherita while issuing the order dated 02.11.2015 had not exercised its jurisdiction in the required manner under Section 8(2) of the Act of 2010 and merely passed an order of status-quo without taking note of the further prayer to stop construction and also the requirement of the law to arrive at a prima facie satisfaction as to whether the allegation of land grabbing in the application filed by the applicants/petitioner are factually sustainable or not. In the circumstance, it is noticed that the jurisdiction vested under the law under Section 8(2) of the Act of 2010 had not been duly exercised by the learned Additional District Judge, Margherita while passing the order dated 02.11.2015 Page No.# 9/10 as well as while passing the order dated 28.03.2023 in Misc.(J) Case No.115/15, Misc.(J) Case No.42/16, Misc.(J) Case No.94/16, Misc.(J) Case No.3/17, Misc.(J) Case No.10/19 purportedly by referring to Order XXXIX Rule 2A.
15. The applicants having taken a clear stand in the application that a part of the land, under Dag No.424 of the Periodic Patta No.13 and Dag No.449 of Periodic Patta No.12, had been inherited by them under the law of inheritance under the Mohammedan Law and with a further statement that the respondent land grabbers had purchased some other land not pertaining to the aforesaid dag and patta numbers applicable to the applicants but had fraudulently manipulated the sale deed to include the dag and patta numbers of the applicants which would be a clear and explicit case of allegation of land grabbing with reference to the preamble of the Act of 2010 which provides that the Act itself is in respect of the organized attempts on the part of certain lawless persons operating individually and in groups to grab, either by force or by deceitful means or otherwise, occupying the land of another person by manipulating the dag number and patta number in the sale deed in respect of some other land would definitely be within the meaning of land grabbing by deceitful means.
16. In view of such categorical statement in the application, it was the bounded duty of the learned Additional District Judge to arrive at a prima facie satisfaction on the allegations made by the applicants/petitioner. From such point of view also, it appears that the jurisdiction vested under the law had not been duly exercised by the learned Additional District Judge, Margherita while passing the order dated 02.11.2015 in Land Grabbing Case No.13/2015 as well as the order dated 28.03.2023 in Misc.(J) Case No.115/15, Misc.(J) Case No.42/16, Misc.(J) Case No.94/16, Misc.(J) Case No.3/17, Misc.(J) Case Page No.# 10/10 No.10/19.
17. In view of the above prima facie case being made out and in exercise of the jurisdiction under Section 8(2) of the Act of 2010, the respondent land grabbers are directed and restricted not to undertake any further construction over the scheduled land mentioned in the application in Land Grabbing Case No.13/2015 and are also restrained from entering the premises of the aforesaid land. Further the order dated 28.03.2023 in Misc.(J) Case No.115/15, Misc.(J) Case No.42/16, Misc.(J) Case No.94/16, Misc.(J) Case No.3/17, Misc.(J) Case No.10/19 shall remain stayed.
18. Issue notice, returnable by six weeks.
19. Steps for service of notice on the respondents by registered post with A/D within three days.
20. Call for the records of Land Grabbing Case No.13/2015 from the Court of the learned Munsiff, Margherita.
21. List after six weeks.
22. Upon appearance of the respondents, further continuation or discontinuation of the interim order based upon the factual projection that may be made, would be given its consideration.
JUDGE Comparing Assistant