Gauhati High Court
Md Ishaque Ali & Ors vs The State Of Assam And Ors on 12 August, 2016
Bench: Hrishikesh Roy, Paran Kumar Phukan
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.4179/2009
1. Md. Ishaque Ali,
S/o Md. Samsheer Ali,
R/o Sarabbhati, Guwahati-16
2 Smti Najma Begum
W/O Abdul Rahim
R/O Sarabbhati, Ghy-16,
3 Md Arif Ali
S/O Md Yasin Ali
R/O Sarabbhati, Ghy-16,
4 Smti Jannat Begum
W/O Md Ahsan Ali
All Are Resident Of Sarabbhati, Ghy. .....Petitioners.
Versus
1. The State of Assam,
Represented by the Commissioner and Secretary,
Revenue Department, Government of Assam,
Dispur, Guwahati-6.
2 The Assam Board of Revenue
Represented by its Chairman, Panbazar, Ghy-1.
3 The Deputy Commissioner,
Kamrup (M)
Panbazar, Ghy-1.
4 The Additional Deputy Commissioner,
Kamrup (M), Panbazar, Ghy-1. ...Respondents.
BEFORE HON'BLE MR JUSTICE HRISHIKESH ROY HON'BLE MR JUSTICE PARAN KUMAR PHUKAN For the petitioners : Mr. S.P. Roy, Mr. D. Nandi, Mr. R.P.N. Singh Mr. C. Sarma, Mr. K. Rajbongshi, Mr. M.K. Raut, Mr. K Kalita ... Advocates.
For the respondents . : Mr. P.S. Deka
Mr. N.J. Khataniar .... Govt. Adv.
Date of hearing : 14.7.2016, 21.7.2016, 2.8.2016
Date of Judgment : 12.8.2016
WP(C) No.4179/2009
Page 1 of 8
2
JUDGMENT AND ORDER
(Hrishikesh Roy, J).
Heard Mr. S.P. Roy, the learned Counsel appearing for the petitioners. Also heard Mr. P.S. Deka and Mr. N.J. Khataniar the learned Government Advocates who make submission on behalf of the respondents.
2 The four writ petitioners in the WP(C) No.4179/2009 challenge the eviction notices (Annexure-1, 2, 3 & 7) in the Encroachment Case No.19/2009 and 50/2009, issued on 16.5.2009 and 13.8.2009 respectively, whereby the Addl. Deputy Commissioner, Kamrup (M) has directed summary eviction of the encroachers of Govt. land, under Rule 18(2) of the Settlement Rules framed under the Assam Land & Revenue Regulation 1886 (hereinafter referred to as the "Land Revenue Regulation"). The notices indicate the area occupied by the concerned individual in Ulubari Mouza, covered by Dag No.175 and 175/1034. There is no dispute that the occupied area is Government land of Village & Mouza - Ulubari, in Guwahati town.
PREVIOUS LITIGATION
3. When the eviction notices in the Encroachment Case No.19/2009 were received, the first three petitioners filed Appeal under Section 147 of the Land Revenue Regulation before the Revenue Board. But the Chairman of the Board observed that the appellants are encroachers and are not claiming title over the land. Therefore intervention with the eviction notices on the technical plea of non-description of the boundary, was found to be untenable to sub-vent the course of law and thus, the appeal was dismissed by the Board through the order dated 3.9.2009 (Annexure-5).
4. Aggrieved by rejection of their Appeal by the Revenue Board, the petitioners had earlier filed the WP(C) No.1533/2009 to challenge the Revenue Board's order of 2.4.2009 in the R.A.No.59RA(K)/09. But the writ petition was dismissed by this Court with the observation that the petitioners can be ejected WP(C) No.4179/2009 Page 2 of 8 3 from the Government land, if not already evicted, under Rule 18 of the Settlement Rules. This Court made the following observation while disposing of the WP(C) NO.1533/2009 :
"...........................................
In the case of State of Assam and others vs Rakha Kanoo (Smt) and others reported in 1996 (8) SCC 692 it is categorically indicated by the Apex Court that a person can hold/possess the right over the land only after obtaining such right under the aforesaid provisions of Regulation and not otherwise. The petitioner has tried to impress upon the court that the land in question is not reserved for any road nor it is reserved for any public purpose, hence before eviction, they are entitled to get notice under Rule 18(3) of the aforesaid regulation. But by virtue of Assam Land and Revenue Amendment Rules 1997 amending Rule 18(2) the words "govt. khas land or waste land or estate over which no person has acquired the right of proprietor, landholder or settlement holder any"
have been inserted. But no semblance of bona fide claim of right upon the land has been shown by the petitioners. Accordingly, the petitioners not having any actionable right over the Govt. land which are in their occupation, the respondents are entitled to evict them resorting to Rule 18. Hence, I do not find any merit in this writ petition and accordingly the same stands rejected.
However, it is observed that in the event the authority wants to proceed to eject the petitioners from the land under their occupation, it not already evicted, they can do so under the provisions of Rule 18 of the Settlement Rules a as amended.
................................................."
5. The 4th petitioner Smt. Jannat Begum too approached the High Court in connection with the Encroachment No.19/2009. There, she pleaded (as noted by the Court ) that, eviction can be effected only after issuing notice under Rule 18(2) of the Settlement Rules. Accepting this submission of the writ petitioner, this Court disposed of the WP(C) NO.3637/2009 on 27.8.2009 (Annexure-6) with direction that if encroachers are to be cleared, it may be done under the provisions of Rule 18(2) of the Settlement Rules.
SUBMISSIONS OF PETITIONERS
6. On behalf of the encroachers facing eviction, Mr. S.P.Roy, the learned Counsel makes the following submission :-
6.1 Recourse to summary procedure for eviction of encroachers under Rule 18(2) of the Settlement Rules is unjustified as this Court in Bandhana Goala vs. Assam Board of Revenue reported in AIR 1972 Gau 11 had held that Rule 18 of the Settlement Rules is discriminatory and void and therefore the said provisions can't be enforced, for eviction of encroachers.
6.2 As notice needn't be given in the summary procedure under Rule 18(2) of WP(C) No.4179/2009 Page 3 of 8 4 the Settlement Rules, Mr. S.P. Roy submits that forcible eviction through the summary procedure should not be allowed.
6.3. Since the concerned area is not reserved for road or is roadside land, the learned Counsel submits that eviction can't be ordered under Rule 18(2) of the Settlement Rules and instead, the State should take recourse to the Assam Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as "the Public Premises Eviction Act") 6.4 The petitioners contend that the boundary of the occupied area is not specified in the notices and hence eviction on the basis of such vague notice should not be permitted and reasonable opportunity must be afforded to the occupiers to justify their occupation of the Govt. land. 6.5 According to the petitioners, forcible eviction in a summary proceeding should not be allowed as the petitioners have been in occupation without any obstruction from the Govt. authorities. Moreover as the occupation is for last over 30 years, Mr. S.P. Roy, the learned Counsel claims a right of adverse possession, under Article 111 of Part-IX of the Limitation Act, 1963 and contends that the State has abdicated their right to evict the occupiers, under the principles of right of adverse possession.
SUBMISSION OF THE RESPONDENTS 7.1 Mr. P.S. Deka, the learned Govt. advocate projects that defects in the eviction mechanism noted in the case of Bandhana Goala (supra) where the original Rule 18(2) of the Settlement Rules was declared to be discriminatory, was cured through the amendment of the Sub-Rule (2) of Rule 18 w.e.f 21.3.1997. When the amended provisions was then judicially examined, it was observed in Bhanumati Ghosh vs. State of Assam reported in 2015 (4) GLT 370 that the earlier defect and infirmity found in Bandhana Goala (supra) was cured. Therefore it is submitted that Bandhana Goala (supra) has no application now to decide the validity of the eviction process from the occupied Govt. land since Rule 18(2) was amended.
7.2 Since Sub-Rule (2) of Rule 18 is substituted by amendment w.e.f. 21.3.1997, the Govt. advocate submits that recourse to summary eviction from WP(C) No.4179/2009 Page 4 of 8 5 Govt. land whether roadside or otherwise is permitted by law as the occupiers have not acquired the right of a proprietor, landholder or settlement holder, for the concerened Govt. land.
7.3 The respondents contend that in the earlier round in the WP(C) No.1533/2009 and in the WP(C) No.3637/2009, this Court had clearly declared that eviction under Rule 18(2) of the Settlement Rules is the permissible mode and therefore it is argued that recourse to Rule 18(2) to evict the encroachers from Govt. land is, through due process.
7.4 The Government Advocate submits that the two Encroachment Cases (No.19/2009 and No.50/2009) were registered for clearing the area under Dag No.175 of Village-Ulubari. The Settlement Officer, Guwahati had earlier reported that the petitioners have constructed temporary Tin Chali house and those illegal structures are occupied by tenants of the petitioners. Moreover, the concerned land is earmarked for the office of the Commissioner of Labour, Assam. Hence the pressing public necessity for summary eviction, is projected by the Govt. advocate.
7.5 According to the State's Counsel, unless the petitioners can establish the right of proprietor, landholder or settlement holders for the concerned land and bona fide claim of title is not involved, summary eviction of the encroachers can be ordered, under Rule 18(2) of the Settlement Rules. 7.6 The recourse to the summary proceeding under Rule 18(2) for eviction of the illegal encroachers according to the respondents is the correct mechanism and the Public Premises Eviction Act is not attracted as the process does not involve any public premises.
7.7 As the concerned Govt. land is earmarked for the office of the Labour Commissioner, the recourse to the summary procedure for eviction of the encroachers is contended to be the right process for quick clearance of the area for construction of the Govt. office.
7.8 Questioning the logic of the claim to adverse possession, the learned Govt. advocate submits that Article 111 of Part-IX of the Limitation Act is applicable only for instituting suits and the said provision can have no bearing for eviction undertaken under Rule 18(2), of the Settlement Rules.
WP(C) No.4179/2009 Page 5 of 8 6DISCUSSION & CONCLUSION
8. The arguments of the rival Counsel is taken in to account. The power to eject encroachers from Govt. land is conferred under Rule 18(2) and all category of Govt. land is now covered by the amended provisions. The ejectment process can be resisted only by those who have acquired right of proprietor, landholder or settlement holder over such land. Here it is not disputed that the land is Govt. land and that none of the petitioners are proprietor, landholder or settlement holder. Therefore no legal right is noticed in their favour to resist the ejection from the area, in the heart of Guwahati city.
9. Following the amendment of Rule 18(2) w.e.f. 29.3.1977, all category of Govt. land is covered by the amended provisions. The earlier decision in Bandhana Goala (supra) is inapplicable now since the defects in the old Rule is now cured as was observed in Bhanumati Ghosh (supra). Thus we find no infirmity with the procedure initiated against the encroachers of valuable assets of the State.
10. As the ejectment is proposed under this provision, the Rule 18 after it was amended w.e.f. 29.3.1977, reads as under :
"Rule 18(1) -
Subject as hereinafter provided, the Deputy Commissioner may eject any person from land over which no person has acquired the rights of a proprietor, landholder or settlement holder"
"Rule 18(2) -
When such person has entered into possession of Government khas land, or waste land or estate over which no person has acquired the right to a proprietor, land holder or settlement holder or any land that has previously been reserved roads or roadside land or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when further, there is no bonafide claim of right involved he may be ejected or ordered to vacate the land forthwith and the Deputy Commissioner may sell, confiscate or destroy any crop raised, or any building or other construction erected without authority on the land"
11. The Rule 18(2) of the ALRR, 1986 empowers the Deputy Commissioner to eject those, who have not acquired right of a proprietor, landholder or settlement holder. Admittedly, the petitioners are not the proprietor, landholder or settlement holder of the occupied area and therefore no legal right is noticed in their favour.
WP(C) No.4179/2009 Page 6 of 8 712. For eviction of encroachers, the Govt. land in question needn't be earmarked for roads or for any public purpose since Rule 18(2) was amended and is now made applicable to all categories like Govt. khas land, waste land or estate. But in any case, here the area is earmarked for the office of the Labour Commissioner and therefore quick clearance through summary procedure, can't be said to be unwarranted.
13. In our understanding, the Assam Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is not applicable in the instant case since Section 2(c) of the Act defines public premises as any premises belonging to or taken on lease, hire or requisitioned by or on behalf of the State Government, the Assam State Electricity Board, the Assam State Road Transport Corporation or any Public Section Undertaking owned or sponsored by the State Government. But here the petitioners are not occupying public premises and they are unauthorizedly occupying Govt. lands. Therefore this issue is answered against the petitioners.
14. Here we are looking at situations where no adjudication of any complex question of possessory right or title of the occupiers is involved. Undoubtedly the lands in question are Govt. land. The petitioners have not been permitted by the Government to occupy those lands and in fact ejectment proceeding was started against the encroachers. In our considered view Rule 18(2) is applicable here and the action of the State is consistent with the settled legal position.
15. Moreover we find that the ejectment notice(s) convey enough details about the land and more importantly, the petitioners are definitely aware of the area from where ejectment is sought as they had challenged the notice(s) with the same land description, in the earlier round. Therefore we are of the view that non-mentioning of the boundary in the impugned notices will not be fatal for the State as it has not caused any prejudice to the writ petitioners.
16. According to our understanding, the principle of adverse possession enunciated in Article 111 of Part IX of the Limitation Act can't help the petitioners here as the Govt. hasn't filed a suit for eviction. Therefore no legal advantage accrues to the encroachers, on this plea.
17. When we examine the previous litigation history, it is apparent that the petitioners had conceded to applicability of Rule 18 for their eviction and this WP(C) No.4179/2009 Page 7 of 8 8 was reflected in orders passed by the Court in the earlier cases on the same cause of action. Hence recourse to Rule 18 for eviction of the encroachers is obviously through an acceptable process and the petitioners can't be allowed to retract from their earlier stand. Even otherwise we have already held that Rule 18 is the appropriate provision in the present case.
18. It can't also be overlooked that the petitioners have inducted tenants by constructing temporary structures and are receiving rental income from the tenants. They are utilizing the valuable Govt. land not for their own occupation but for commercial gain. This can't be permitted as the encroachers do not have any legal right on these lands. Moreover the petitioners can't be categorized as landless people and therefore equitable consideration will have no role in this case.
19. The petitioners in our understanding have no legal right to occupy the valuable Govt. land in the heart of the city. Moreover when the land is needed to be cleared in public interest, the individual right if any, must make way.
20. The challenge here is to the ejectment process where we find that clearance of the Govt. land is warranted by public interest. The occupiers have failed to establish any bonafide right over the occupied land. Moreover they can't be categorised as proprietor, landholder or settlement holders. Therefore recourse to summary procedure under Rule 18 of the Settlement Rules is found to be acceptable.
21. Considering the above and taking into account all other parameters including the past litigation history, no merit is found in this case and the same is dismissed. No cost.
JUDGE JUDGE
Datta.
WP(C) No.4179/2009
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