Gauhati High Court
Page No.# 1/18 vs Union Of India And 6 Ors on 8 January, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/18
GAHC010276202024
2025:GAU-AS:249
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7002/2024
GOUTAM DEY AND 31 ORS.
(AGE ABOUT 58 YEARS)
S/O- LT. GOURANGA DEY
2: JANARDHAN MAJUMDER
S/O- LT. GANESH MAJUMDER.
(AGE ABOUT 55 YEARS)
C/O- RAJENDRA PANDIT
3: JHUMA DEBNATH
(AGE ABOUT 45 YEARS)
W/O- LT. DHRUBA DEBNATH
4: BIBEK DAS
(AGE ABOUT 25 YEARS)
S/O- LATE LOKNATH DAS
5: MANIK BHOWMIC
(AGE ABOUT 48 YEARS)
S/O- LT. MANMOHAN BHOWMIC
6: CHANDAN PATIKAR
(AGE 58 YEARS)
S/O- LT. AJAY PATIKAR
7: SUKHAMAY BANIK
(AGE 59 YEARS)
S/O-LATE NIKUNJA BANIK
8: SWAPAN MAJUMDAR
((AGE63 YEARS)
S/O- LT. ASHU MAJUMDAR
9: SHYAMAL MAJUMDAR
Page No.# 2/18
(AGE 52 YEARS)
S/O- LT ASHU MAJUMDAR
10: ISWAR MANDAL
(AGE 55 YEARS)
S/O-LT RADHA RAMAN MANDAL
11: BABUL DAS
(AGE 61 YEARS)
S/O LATE ANATH DAS
12: SUBHASH PAUL
(AGE 58 YEARS)
S/O- LATE GOPAL PAUL
13: NANI GOPAL DEY
(AGE 59 YEARS)
S/O-JOGESH DEY
14: UTTAM BANIK
(AGE 62 YEARS)
S/O- LATE MANINDRA BANIK
15: NARAYAN NAG
(AGE ABOUT 68 YEARS)
S/O- LT. JANKI NAG.
16: LAKHAN NAG
(AGE ABOUT 35 YEARS)
S/O- LT. GOPAL NAG
17: SIBUL BHADRA
(AGE 45 YEARS)
S/O- ASHANANDA BHADRA
18: ADHIR BHADRA
(AGE ABOUT 60 YEARS)
S/O- LT. ASHANANHA BHADRA
19: MANISH KUMAR
(AGE ABOUT 41 YEARS)
S/O- RAMCHANDRA SINGH
20: RAJU DEY
(AGE 42 YEARS)
S/O- DILIP DEY
C/O- LATE DULAL CHOUDHURY
Page No.# 3/18
21: RAMBABU MAHATO
(AGE 47 YEARS)
S/O- MOTILAL MAHATO
C/O- LATE GIRENDRA KUMAR BANIK
22: SUMAN DAS
(AGE 36 YEARS)
S/O- LATE GOURANGA DAS
23: SIPOK DEY
(AGE ABOUT 56 YEARS)
S/O- LT. SATISH CH. DEY
24: UJJAL DAS
(AGE 45 YEARS)
S/O AKHIL DAS
25: ALOK SARKAR
(AGE 48 YEARS)
S/O- LATE MANIK SARKAR
26: TARACHAND JAIN
(AGE 58 YEARS)
C/O- AJAY ROY
27: DIPANJOI BHATTACHARJEE
(AGE 36 YEARS)
C/O- LATE DIJENDRA BHATTACHARJEE
28: RUPAK DAS
(AGE 41 YEARS)
S/O- LATE SUBAL DAS
29: JAHARLAL SUTRADHAR
(AGE 66 YEARS)
S/O- LATE JAGABANDHU SUTRADHAR
30: BISWAJIT DEB
(AGE 45 YEARS)
S/O- SUDHANGSHU DEB
31: ASHOK KUMAR BANIK
(AGE 55 YEARS)
S/O- LATE MANINDRA BANIK
32: SASHANKA BANIK
(AGE 39 YEARS)
C/O- SADHAN BANIK
Page No.# 4/18
ALL ARE RESIDENTS OF WARD NO.4
KARBI-ANGLON
VERSUS
UNION OF INDIA AND 6 ORS
REPRESENTED BY THE GENERAL MANAGER, NORTH FRONTIER
RAILWAY, MALIGAON, GUWAHATI, PIN-781011
2:THE DIVISIONAL RAILWAY MANAGER
N.F. RAILWAY
LUMDING
ASSAM
PIN-782447
3:THE ESTATE OFFICER
N.F. RAILWAY
LUMDING
ASSAM
PIN-782447
4:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-6
5:THE KARBI ANGLONG DISTRICT AUTONOMOUS COUNCIL
REPRESENTED BY THE SECRETARY
EXECUTIVE COMMITTEE
KARBI ANGLONG
DISTRICT COUNCIL
ASSAM
PIN-782460
6:THE ADDL. DISTRICT COMMISSIONER
I/C BOKAJAN SUB-DIVISION
BOKAJAN
7:THE DISTRICT MAGISTRATE
KARBI- ANGLONG
DIPH
Advocate for the Petitioners : Mr. K. K. Mahanta,
Sr. Advocate
Mr. S. P. Prasad, Advocate
Page No.# 5/18
Advocate for the Respondents : Mr. K. Gogoi, Dy. S.G.I.
Ms. M. Barman,
Govt. Advocate
Mr. J. Chutia, SC, KAAC
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 08.01.2025
Date of Judgment : 08.01.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. K. K. Mahanta, the learned senior counsel assisted by Mr. S. P. Prasad, the learned counsel for the petitioners. I have also heard Mr. K. Gogoi, the learned counsel appearing on behalf of the respondent Nos.1, 2 & 3; Ms. M. Barman, the learned counsel appearing on behalf of the respondent Nos.4, 6 & 7 as well as Mr. J. Chutia, the learned counsel appearing on behalf of the respondent No.5.
2. 32 petitioners have joined together to file the instant writ petition challenging the eviction proceedings so initiated against them by the respondent Nos.6 & 7 at the behest of the respondent Nos.1, 2 & 3.
3. The petitioners herein claim that since 1970 onwards, they have been in occupation of respective plots of land in Ward No.4, Bokajan thereby running their livelihood of their families through stationery, grocery, medicine, tea stall, hardware, photoshop, Page No.# 6/18 photo studio, shoe shop, etc. by constructing wooden shops with CI sheets having valid trade licenses from the Karbi Anglong Autonomous District Council as well as from the local authority, i.e. Bokajan Town Committee under the Karbi Anglong Autonomous Council. In the year 2011-12, notices were issued under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short, "the Act of 1971") asking the petitioners to show cause as to why they should not vacate the lands in their possession as the same fell within the ambit of public premises as defined in Section 2 (e) of the Act of 1971. The materials on record so placed by Mr. K. Gogoi, the learned counsel appearing on behalf of the respondent Nos.1, 2 & 3 does not show that the petitioners as well as the other persons to whom notices were issued had submitted any reply. It further transpires that pursuant thereto, certain orders were passed under Section 5 of the Act of 1971 by the respondent No.3 thereby directing the petitioners along with others to vacate their possession from the land under their possession. The petitioners herein along with various others formed an Association in the name and style of "Bokajan Sarbajanin Kalibari Samiti" which was a Society registered under the provisions of the Societies Registration Act, 1860. The said Society filed a writ petition before this Court which was registered and numbered as WP(C) Page No.# 7/18 No.4143/2012. The said writ petition was disposed of on 31.08.2012 thereby granting liberty to the Society to avail the Appellate Forum, i.e. an Appeal under Section 9 of the Act of 1971 on or before 07.09.2012. It further appears from the records placed by Mr. K. Gogoi, the learned Standing Counsel that the said Society through its Secretary filed an appeal which was registered and numbered as Misc.(Civil) Appeal No.5/2012. In addition to the said Appeal being Misc.(Civil) Appeal No.5/2012, another Appeal was filed which was registered and numbered as Misc.(Civil) Appeal No.1/2015.
4. During the course of hearing, Mr. K. Gogoi, the learned counsel appearing on behalf of the respondent Nos.1, 2 & 3 placed before this Court the judgment and order passed by the learned Court of the District Judge Karbi Anglong in both Misc. (Civil) Appeal No.5/2012 and Misc.(Civil) Appeal No.1/2015. The Appeal so filed being Misc.(Civil) Appeal No.5/2012 was dismissed primarily on the ground that the Memo of Appeal was totally silent as to who were the members of the Appellant Society who were served with the eviction notices issued by respondent No.3 herein. It was also opined that there was no documents on record showing that any member of the Appellant Society was served any notice under Section 4 of the Act of 1971 or any eviction order passed under Section 5 of the Act of 1971.
Page No.# 8/18 In Misc.(Civil) Appeal No.1/2015, the Court of the learned District Judge, Karbi Anglong vide the judgment and order dated 06.11.2017 dismissed the Appeal opining that the impugned orders so passed were not passed by the Estate Officer. It was further opined that an appeal lies before the said Court under Section 9 of the Act of 1971 only when an order is passed by the Estate Officer in respect of a public premises. It was also opined in paragraph No.18 of the said judgment that there was no document on record showing that any notice under Section 4 of the Act of 1971 was served upon any member of the Appellant Society, and as such, the Appeal was premature.
5. Being aggrieved by both the judgments passed by the learned District Judge, Karbi Anglong in Misc.(Civil) Appeal No.5/2012 and Misc.(Civil) Appeal No.1/2015, two writ petitions were filed which were registered and numbered as WP(C) No.7411/2017 and WP(C) 7421/2017. WP(C) No.7421/2017 was dismissed vide an order dated 02.04.2024 holding inter-aila that the petitioner in the said writ petition which was the Society was not a person aggrieved, and as such, did not have the locus- standi to maintain the writ petition. In WP(C) No.7411/2017 vide another order dated 11.03.2024, the Coordinate Bench of this Court opined that the individual members of the petitioners Society who were given eviction notices had not approached the Page No.# 9/18 Court of the District Judge with their grievances, and as such, there was no infirmity with the decision of the learned District Judge in dismissing the Misc.(Civil) Appeal No.5/2012. It was also opined that the Society where the petitioners herein were the members cannot be an affected or necessary party in the proceedings before the Court of the learned District Judge as the eviction order was not issued to the writ petitioner but to the individual persons who have not made a challenge to the same in terms with Section 9 of the Act of 1971. It is under such circumstances, the writ petition was dismissed. Pursuant to the dismissal of the said writ petition, the respondent authorities, more particularly, the respondent Nos.1, 2 & 3 sought the assistance of the respondent Nos.5, 6 & 7 for the purpose of carrying out the eviction. It is under such circumstances, the petitioners have approached this Court.
6. It is relevant to take note of that vide an order dated 20.12.2024, while this Court permitted the respondents to obtain instructions, directions were issued that no steps for eviction of the petitioners from the concerned land be taken on the basis of the order dated 17.12.2024 passed by the District Magistrate, Karbi Anglong, Diphu. The interim order thereupon has been extended vide an order dated 03.01.2025 and the matter was taken up for consideration by this Court on 07.01.2025. The Page No.# 10/18 matter was duly heard and taking into account the corresponding claims and rights, this Court is of the opinion that the matter requires disposal at the motion stage. Accordingly, with the consent of both the parties, the writ petition is taken up for disposal.
7. Mr. K. K. Mahanta, the senior counsel appearing on behalf of the petitioners submitted that there has been no adjudication on merits either by the Appellate Authority or by this Court where proceedings were filed. He further submitted that the petitioners herein did not get any opportunity for submitting their replies to the notices issued under Section 4 of the Act of 1971 in as much as only some of the persons who are residing over the lands have received notices. The learned senior counsel for the petitioners submitted that even the perusal of the orders so passed under Section 5 of the Act of 1971 clearly shows that there has been complete non-application of mind in as much as the respondent No.3 did not assign any reasons for passing such orders.
8. Per contra, Mr. K. Gogoi, the learned counsel appearing on behalf of the Railways, submitted that the Railways have initiated proceedings under the Act of 1971 for eviction of the various persons including the petitioners taking into account that these petitioners along with others were in illegal and unauthorized Page No.# 11/18 occupation of railway land which are public premises within the meaning of Section 2(e) of the Act of 1971. Mr. K. Gogoi, the learned counsel appearing on behalf of the Railways further submitted that due notices were issued under Section 4 of the Act of 1971, and thereupon, the petitioners chose not to reply and it is under such circumstances, the orders of evictions were passed under Section 5 of the Act of 1971. He further submitted the petitioners on their own had formed the Society and thereupon had filed the writ petition before this Court and this writ petition was not entertained by this Court giving them the liberty to avail to file Appeal under Section 9 of the Act of 1971. The learned counsel appearing on behalf of the Railways submitted that the petitioners ought to have individually file appeals, rather they filed their appeals through the Secretary of the Society and the Society itself, and as such, the petitioners are to be blamed for their conduct. The orders so passed under Section 5 of the Act of 1971 having attained finality, the question of interference at this stage ought not to be made by this Court. Mr. K. Gogoi, the learned counsel appearing on behalf of the Railways further submitted that on account of the illegal and unauthorized occupation of the petitioners over the land belonging to the Railways various infrastructural projects have been stopped.
Page No.# 12/18
9. This Court has duly heard the learned counsels appearing on behalf of the parties and has given an anxious consideration to the materials on record as well as their submissions. First and foremost, it is pertinent to observe that the writ petition was neither been drafted properly nor the relevant materials were placed. This Court finds it apt at this stage to commend with appreciation the submissions of Mr. K. Gogoi, the learned counsel who in his usual fairness have placed the various relevant materials during the course of hearing so that this Court could arrive at a just decision. The details of the relevant materials have been discussed supra.
10. From the above materials on record, it transpires that the petitioners herein have approached this Court alleging violation of their fundamental rights enshrined under Article 21 of the Constitution in as much as it is the case of the petitioners that the respondent authorities have initiated the process of eviction without following the due process or in other words, the case of the petitioners is that they are sought to be evicted without following the due process as statutorily mandated under the Act of 1971. It is also the case of the petitioners that the petitioners have been in occupation of the lands and carrying on their livelihood. The Respondent Authorities being a State are bound to act fairly and reasonably else their very right to livelihood Page No.# 13/18 which is a facet of right life would be seriously impaired.
11. This Court finds it very relevant to observe that when a litigant approaches this Court invoking its high prerogative writ jurisdiction with a petition under Article 226 of the Constitution alleging that the State actions are in breach of the fundamental rights and claims that the breach be bridged by issuing an appropriate writ, direction and order as distinguished from a claim for enforcement of a statutory right, it partakes the character of a duty cast upon this Court to enforce the right breached as the guardians of the Constitution. The breach so alleged in the instant writ petition as stated above is violation of the rights conferred under 21 of the Constitution on the ground that the Respondent Authorities have resorted to action to evict the petitioners in violation of the principles of natural justice which as per the judgment of the Constitution Bench of the Supreme Court in the case of Maneka Gandhi vs. Union of India, reported in the AIR 1978 SC 597 was held to be a part of Article 21 of the Constitution.
12. This Court further takes note of the facts which would show that though the Coordinate Bench of this Court permitted the Society formed by the petitioners along with others to approach the Appellate Forum, but the Appeals and writ petitions filed were all dismissed without consideration of their cases on merits.
Page No.# 14/18 Right to access justice is a fundamental principle of the Rule of law which is also basic feature of our Constitutional Law.
13. In the backdrop of the above, let this Court analyze the factual matrix. The materials on record show that the petitioners herein were duly issued notice under Section 4 of the Act of 1971. There are allegations and counter allegations to the effect that some of the petitioners did not receive the notice and some have. The fact that the petitioners did not submit any reply to the said notices is not in question. Be that as it may, orders were passed under Section 5 of the Act of 1971. This Court, during the course of the hearing, had the occasion of going through the orders passed under Section 5 of the Act of 1971. The said orders, however, are bereft of any reasons. Assigning reasons to an order by a quasi judicial authority befalling civil consequences not only be in tune with the principles of natural justice but also necessary for the purpose of clarity, fairness, understanding, objectivity as well as assigning reasons helps the Appellate Forum to consider the reasons for the decision.
14. It is also noticed that the petitioners along with others had formed an Association which was a Society registered under the provisions of the Societies Registration Act, 1860. The said Society filed the writ petition before this Court which was registered and numbered as WP(C) No.4143/2012. This Court Page No.# 15/18 vide an order dated 31.08.2012 permitted the said Society to approach the Appellate Forum, i.e. the forum as prescribed under Section 9 of the Act of 1971. Two appeals thereupon were preferred. As already stated, both the appeals were dismissed primarily on the ground that there was no notice issued to that Society, rather, the notices were issued to the members. However in doing so, nothing was considered that there was a direction passed by this Court in its order dated 31.08.2012 in WP(C) No.4143/2012 whereby the Society was given the liberty to prefer appeals. It is further noticed that challenging those orders passed in the Appeals filed by the Society, two petitions were filed being WP(C) No.7421/2017 and WP(C) No.7411/2017. Both these petitions were also dismissed without going into the merits of the case, rather, these petitions were dismissed on the ground of locus of the petitioner therein, i.e. the Society. In both these orders passed by the Coordinate Bench of this Court, the order passed by this Court dated 31.08.2012 in WP(C) No.4143/2012 was not taken into consideration.
15. From the above factual matrix that can be discerned during the course of the hearing, it therefore transpires that the adjudication of the rights of the petitioners were never gone into on merits. Rather on technical grounds, the rights of the petitioners were nipped at the bud.
Page No.# 16/18
16. This Court further takes note of that the petitioners herein are now aware that notices under Section 4 of the Act of 1971 were issued to them. Mr. K. K. Mahanta, the learned senior counsel for the petitioners also submitted that in view of the passage of time and the litigations, the notices under Section 4 of the Act of 1971 can be deemed to have been issued against the petitioners. He submits that the petitioners have rights to resist the summary eviction proceedings on the ground that the lands under their occupation are not public premises as well as raising bonafide dispute. The learned senior counsel for the petitioners therefore submitted that the petitioners be permitted to file individual representation.
17. From the above analysis, the following conclusions are arrived at:-
(i) The petitioners herein were not afforded proper and reasonable opportunity during the eviction proceedings initiated against them.
(ii) The petitioners who had challenged the eviction proceedings on merits, through the Society formed to safeguard and protect their interests; no decision was arrived at on merits deciding the rights of the petitioners vis-a-vis the eviction proceedings.
Page No.# 17/18
(iii) The eviction orders passed under Section 5 of the Act of 1971 are bereft of any reasons and as such the same are in violation of the principles of natural justice.
(iv) The interest of justice demands that the petitioners be given an opportunity to submit replies individually espousing their cause.
18. Accordingly, the instant writ petition stands disposed of with the following observations and directions:-
(i) The orders so passed under Section 5 of the Act of 1971 in so far as regards the petitioners are set aside and quashed.
(ii) The petitioners herein are given the liberty to submit individual representations to the respondent No.3 within 10 days from the date of the instant judgment. In the said representations, the petitioners would be able to raise amongst others issues to the effect that the land in question under their occupation are not public premises within the meaning of Section 2 (e) of the Act of 1971. In doing so the petitioners would have to substantiate the same on the basis of relevant documents.
(iv) Upon submission of the said individual representations by the petitioners, the respondent No.3 is directed to decide Page No.# 18/18 the said dispute by giving an opportunity of hearing to both the Railways and the petitioners either personal hearing or a hearing through their authorized representatives. The respondent No.3 shall also take note of the materials on the basis of which the Railways claim that the land under the occupation of the petitioners to be Railway land.
(v) The respondent No.3 thereupon shall pass appropriate order(s) as deem fit in terms with the Act of 1971 by giving reasons.
19. Before parting with the record, this Court further observes that taking into account the urgency expressed by the respondent Nos.1, 2 & 3 in the matter, there shall be no extension of time to submit the representations by the petitioners beyond the time as mentioned herein above.
JUDGE Comparing Assistant