Quashed

Samsun Nehar and Anr. v. the State of Assam and 5 Ors.

Gauhati HC8 Aug 2022WP(C)/7179/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition concerning land encroachment and nationality. The court held that the land dispute is subject to a pending civil suit but directed the petitioner to approach the Superintendent of Police regarding the respondent's alleged Afghan nationality, directing the police to complete enquiries within two months.

What did the court decide?

Writ petition disposed. Petitioner directed to file application before Superintendent of Police for inquiry into respondent's nationality.

Samsun Nehar and Anr. Vs the State of Assam… — Civil Procedure and Limitation | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010031302016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/7179/2016

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SAMSUN NEHAR and ANR. W/O. LT. MAJNURUL HAQUE

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2: MONJURUL HAQUE

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S/O. LT. MAJNURUL HAQUE BOTH ARE RESIDENTS OF WARD NO. 7 MORIGAON TOWN OPP. CENTRAL BANK OF INDIA MORIGAON BRANCH P.O. P.S. and DIST. MORIGAON ASSAM

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VERSUS

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THE STATE OF ASSAM and 5 ORS.

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REP. BY THE COMMISSIONER AND SECRETARY, HOME DEPTT., GOVT. OF ASSAM, DISPUR, GUWAHATI-6.

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2:THE DEPUTY COMMISSIONER MORIGAON

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DIST. MORIGAON ASSAM.

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3:THE SUPERINTENDENT OF POLICE

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MORIGAON DIST. AT MORIGAON ASSAM.

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4:THE OFFICER-IN-CHARGE MORIGAON POLICE STATION

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Page No.# 2/4

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MORIGAON DIST-MORIGAON ASSAM.

5:MD. ASLAM KHAN

S/O. LT. FAJGAL KHAN

6:IMRAN KHAN

S/O. KASHEM KHAN. ALL ARE THE PRESENT RESIDENTS OF WORD NO. 7 MORIGAON TOWN OPP. CENTRAL BANK OF INDIA MORIGAON BRANCH P.O. P.S. and DIST. MORIGAON ASSAM

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Advocate for the Petitioner : MR.A DAS

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Advocate for the Respondent : MR.A SATTARR-5

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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08-08-2022

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Heard Shri M. U. Mahmud, learned counsel for the petitioners. Also heard Ms. S. Sarma, learned State Counsel as well as Shri A. Sattar, learned counsel for the respondent No. 5. Considering the nature of the dispute involved and also the fact that this writ petition is pending since the year 2016, the same is taken up for disposal at the admission stage.

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The petitioners claim that a plot of land was duly donated to them by two persons namely, Abdul Latif Khan and Abdul Rezzeque Khan who were the sons of one Fajgal Khan, an original citizen of Afganistan. The said plot of land is in the Morigaon town. However, long after the same transfer and taking over possession by the petitioners, it is the allegation of the petitioners that the respondent No. 5 claiming to be the son of the original owner of the plot of Fazgal Khan had encroached upon the said land. In this regard, a civil suit has been instituted in the appropriate Court at Morigaon and the same is pending. At the same time,

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the learned counsel for the petitioners submits that the nationality of the respondent No. 5 is of Afganistan and therefore efforts be taken to repatriate him to his country of origin.

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On the other hand, Ms. S. Sarma, learned State Counsel submits that the dispute is per se a private dispute between the parties and this Court in exercise of writ jurisdiction may not be the appropriate Court for adjudication of the dispute. She further submits that since the matter is pending before the appropriate Civil Court, a collateral proceeding is also otherwise not contemplated in law.

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Endorsing the aforesaid submission, Shri A. Sattar, the learned Counsel for the respondent No. 5 while denying the allegation of being a resident of Afganistan submits that though his forefathers were from Afganistan, he is the son of late Fajgal Khan and a resident of Morigaon. Denying the proposition of any donation, the learned counsel further submits that in any case, even the donated part does not constitute the entire plot of the land.

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The learned counsel further submits that in any case, the respective right, title and interest are the subject matters of adjudications in the Civil Court which is pending.

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Rejoining his submission, Shri Mahmud, the learned counsel for the petitioners submits that the civil suit is not instituted by the petitioners but by the respondent No. 5. Learned counsel further submits that the issue of citizenship however is not a issue before the Civil Court and the same may be directed to be considered.

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After hearing the parties and on consideration of the materials on records, this Court is of the view that the principal issue being a matter which is presently before the appropriate Civil Court for adjudication, this Court will not enter into the same dispute which in any case appears to be involving questions of fact which are disputed.

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However, for the other aspect of the matter regarding the nationality of the respondent No. 5, the petitioners are at liberty to file an appropriate application before the Superintendent of Police, Morigaon raising the said issue.

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In the event of such application being filed, the Superintendent of Police, Morigaon shall consider the said representation and by making necessary enquiry and pass appropriate orders.

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It is needless to say that in the course of such enquiry, a hearing be afforded to both the parties.

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In the event such representation is filed, the same may be disposed of within a period

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of 2 (two) months from the date of receipt of the said order.

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Writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Samsun Nehar and Anr. v. the State of Assam and 5 Ors.

Case brief

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Samsun Nehar and Anr. v. the State of Assam and 5 Ors.

Case brief

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