Nurtazul Hoque and 86 Ors. Vs the State of Assam and 4 Ors.

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GAHC010012942024

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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)/314/2024

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NURTAZUL HOQUE AND 86 ORS. S/O- JAMAL UDDIN AGE ABOUT 29 YEARS VILL- KURSHAPAKRI, PT. II P.S. LAKHIPUR DIST. GOALPARA, (ASSAM)

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2: KODBHANU NESSA W/O- ABDUL KADER AGE ABOUT 27 YEARS VILL- KURSHAPAKRI PT-II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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3: HUSEN ALI S/O- KADER ALI AGE ABOUT. 28 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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4: SAHADAT ALI S/O- CHAYED ALI AGE ABOUT 44 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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5: SHIRAJ ALI S/O- ABDUL SAMAD AGE ABOUT 41 YEARS

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VILL- KURSHAPAKRI PT. II P.S- LAKHIPUR DIST. GOALPARA (ASSAM)

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6: RIYAJ ALI S/O- ABDUL CHAMAD AGE ABOUT 64 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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7: TAHER ALI S/O- JAYNAL ABEDIN AGE ABOUT 58 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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8: SOBUR ALI S/O- JOYNAL ABDIN AGE ABOUT 50 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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9: KADER ALI S/O- NURMAHAMMAD AGE ABOUT 63 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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10: MECHER ALI S/O- HAKIM ALI AGE ABOUT 53 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR

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DIST. GOALPARA (ASSAM) 11: JAMALUDDIN S/O- SAHAD ALI AGE ABOUT 62 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 12: HAFIJUR RAHMAN S/O- ABUL HOSEN AGE ABOUT 48 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 13: CHAHAR ALI S/O- A RASHID AGE ABOUT 62 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 14: BAKTAR ALI S/O- LATE KAHAR ALI AGE ABOUT 72 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 15: SHOHIDA KHATUN C/O- ABIYA BEWA AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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16: ACHUR UDDIN S/O- SAMSER ALI AGE ABOUT 41 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM). 17: EACHOB ALI S/O. SAHADI SHEIKH AGE ABOUT 33 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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18: YUNUS ALI S/O. SAHADI SHEIKH AGE ABOUT 45 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 19: ABDUR RAHMAN S/O- TAHER ALI AGE ABOUT 38 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA ASSAM 20: MOYJUDDIN MOLLAH S/O- IMAN MOLLAH AGE ABOUT 71 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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21: SURAJ JAMAL S/O- AR RAHMAN AGE ABOUT 71 YEARS

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VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 22: ABBACH ALI S/O- TAHER ALI AGE ABOUT. 45 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 23: JEL HOQUE ALI S/O- RAMJAN ALI AGE ABOUT. 44 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 24: BOKKAR ALI S/O- JAYNAL ABEDIN AGE ABOUT. 54 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 25: BAHADUR ALI S/O- OLI MAMUD AGE ABOUT. 61 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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26: SANOWAR HUSSAIN S/O- BABUR ALI AGE ABOUT 44 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR

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DIST. GOALPARA (ASSAM) 27: ABDUL HAI S/O- TORIFULLA SHEIKH AGE ABOUT. 61 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 28: KASHEM ALI S/O- BABUR ALI AGE ABOUT 60 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 29: RAFIKUL ISLAM S/O- ACHIRUDDIN SHEIKH AGE ABOUT 32 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 30: GOL HUSSAIN S/O- FOZLUR RAHMAN AGE ABOUT. 46 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 31: NUR HUSSAIN S/O- FOZLUR RAHMAN AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 32: SANOWAR ALI

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S/O- AJGOR ALI AGE ABOUT 43 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 33: SHOHIDUL ISLAM S/O- JUBBAR ALI AGE ABOUT 26 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 34: SAYED ALI S/O. MAHABBAT ALI AGE ABOUT 61 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 35: ABDUL KHALEK S/O- RAMJAN ALI AGE ABOUT. 61 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 36: MIAH CHAN ALI S/O- KURAN ALI AGE ABOUT 71 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 37: AKRAM ALI S/O- OLI MAMUD AGE ABOUT 66 YEARS VILL- KURSHAPAKRI

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PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 38: MINHAZUL HOQUE S/O- ABDUL CHAMAD AGE ABOUT 44 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 39: NURUL ISLAM S/O- SHOHOR ALI AGE ABOUT 36 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 40: ABJAL HOQUE S/O- LT. TAHER ALI AGE ABOUT. 53 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 41: MD. ABDULLA SHEIKH S/O- NURJAMAL AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 42: MOFIZ UDDIN S/O- MPHAMMAD ALI AGE ABOUT 76 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA

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(ASSAM)

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43: AJIRAN NESSA D/O- AZIBAR ALI AGE ABOUT 40 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 44: ATOWAR RAHMAN S/O- NURJAMAL HOQUE AGE ABOUT 29 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 45: LAL BHANU W/O- KADER ALI AGE ABOUT 36 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 46: PANAULLAH S/O- GULAP UDDIN AGE ABOUT 75 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 47: JAHAN ALI S/O- NAYAN ALI AGE ABOUT 41 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 48: ASMAT ALI

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S/O- MONSER ALI AGE ABOUT 53 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 49: ANOWAR ALI S/O- RAJOB ALI AGE ABOUT 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 50: JOINUDDIN SHEIKH S/O- GULAP UDDIN AGE ABOUT 75 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 51: AKLIMA KHATUN W/O- MAHAR ALI AGE ABOUT 32 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 52: BAREK ALI S/O- ZOBED ALI AGE ABOUT 50 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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53: AMIR HAMZA S/O. SOBUR ALI AGE ABOUT 36 YEARS VILL- KURSHAPAKRI

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PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 54: TUZAMMEL HOQUE S/O- EKRAM ALI AGE ABOUT 31 YEARS P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 55: KAMA UDDIN S/O- KORMOT ALI AGE ABOUT 40 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 56: BAHARUL ISLAM S/O- KUDDUS ALI AGE ABOUT 27 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 57: HUSSEN ALI S/O- KADER ALI AGE ABOUT 31 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 58: EDRIS ALI S/O- NAUSHAD ALI AGE ABOUT 46 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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59: JOHIR UDDIN S/O- AKBAR ALI AGE ABOUT. 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 60: NUR ISLAM S/O- HAFIZ UDDIN AGE ABOUT 55 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 61: ABDUR RAHIM S/O- BAKKAR ALI AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 62: NOJMUL SHEIKH S/O- AKBAR ALI AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 63: REJAUL KORIM S/O- TAHER ALI AGE ABOUT 23 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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64: ABU BOKKAR SIDDIK ALI S/O- JOYNAL UDDIN AGE ABOUT 55 YEARS

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VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 65: HAFIJUR RAHMAN S/O- ABU HUSSAIN AGE ABOUT 40 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 66: MAGRAB ALI S/O- SUKUR ALI AGE ABOUT 57 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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67: SHAHINUR ALOM S/O- ABDUL HAI AGE ABOUT 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 68: HASEM ALI S/O- BABUR ALI AGE ABOUT 48 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 69: EAR ALI S/O- SHOHAR ALI AGE ABOUT 31 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR

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DIST. GOALPARA (ASSAM) 70: JAMAL ALI S/O- KARMOT ALI AGE ABOUT 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 71: SAIFUL ISLAM S/O- MIYACHAN AGE ABOUT 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 72: BABUL HUSSEN S/O- JOBBAR ALI AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 73: HASEM ALI S/O- BABOR ALI SHEIKH AGE ABOUT 52 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 74: JOHIR UDDIN S/O- TAZEN ALI AGE ABOUT 55 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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75: ABDUL HAKIM S/O- AHAMMED ALI AGE ABOUT 56 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 76: OMOR ALI S/O- ABDUL KHALEK AGE ABOUT 28 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 77: MERAZUL HOQUE S/O- TAHER ALI AGE ABOUT 25 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 78: NAZMILA KHATUN W/O- SOMER ALI AGE ABOUT. 22 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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79: JOINUDDIN S/O- GOLAP UDDIN AGE ABOUT 72 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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80: MOHIDUL ISLAM S/O- HANIF UDDIN AGE ABOUT 30 YEARS

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VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 81: SOLEMON KHAN S/O- JAMAL UDDIN AGE ABOUT 42 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM) 82: BILLAL HUSSAIN S/O- KADER ALI AGE ABOUT 29 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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83: SOMER ALI MANDOL S/O- KADER ALI MANDOL AGE ABOUT 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM). 84: SURUT JAMAL S/O- ABDUR RAHMAN BEPARI AGE ABOUT 73 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM). 85: HAFIJUR RAHMAN S/O- ABUL HUSSAIN AGE ABOUT 35 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR

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DIST. GOALPARA (ASSAM).

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86: OSMAN GONI S/O- ABUL HUSSAIN AGE ABOUT 21 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM). 87: SONAB UDDIN S/O- HAZROT ALI AGE ABOUT 67 YEARS VILL- KURSHAPAKRI PT. II P.S. LAKHIPUR DIST. GOALPARA (ASSAM)

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY, FOREST DEPARTMENT, GOVT. OF ASSAM, DISPUR, GUWAHATI- 6.

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2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FOREST FORCE

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ARANYA BHAWAN PANJABARI GUWAHATI KAMRUP(M) PIN- 781037.

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3:THE DIVISIONAL FOREST OFFICER

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GOALPARA GEETANAGAR GOALPARA ASSAM PIN- 783121.

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4:THE DEPUTY COMMISSIONER GOALPARA

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DISTRICT- GOALPARA ASSAM PIN- 783121.

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5:THE FOREST RANGE OFFICER

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LAKHIPUR RANGE OFFICE DISTRICT- GOALPARA ASSAM PIN- 783129

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Advocate for the Petitioner : MR. M I HUSSAIN, MS. P AHMED,SK ABDULLAH,MR S ISLAM Advocate for the Respondent : GA, ASSAM, SC, FOREST

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BEFORE

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HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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Date : 03.03.2025

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Heard Mr. M. I. Hussain, learned Counsel for the petitioners and Mr. D. Gogoi, learned Standing Counsel, Forest Department, appearing for the respondents No. 1, 2, 3 and 5; and Mr. R. Dhar, learned Senior Government Advocate appears for the respondent No. 4.

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2. The petitioners in the present proceeding have presented a challenge to the eviction drive initiated by the Forest Department for evicting encroaches from the Kumarkhali Reserve Forest. It is the contention of the petitioners that although they are occupying revenue land situated outside the notified area of the said reserve forest, they have also been brought within the purview of said eviction exercise.

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3. The stand of the parties as reflected in the pleadings brought on record is noticed as under :-

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The petitioners herein have projected in the writ petition that on account of erosion their parents / grand parents had shifted and occupied vacant lands in village Kurshapakri Part II. It is projected that some of the petitioners and their families have been occupying lands in the said village since 1970. The petitioners submits that they have been enrolled

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as voters in the said village and various Governments Schemes including establishment of schools, Anganwadi Centers have also been extended to the residents of the said village.

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It is projected by the petitioners that on 07.12.2023, they came across a notice pasted at a conspicuous place in the village by the Zonal Forest Officer, requiring the villagers to vacate the land in question. The petitioners also project that the Forest Departmental Officials had on 11.01.2024 and 17.01.2024, informed the residents in the area over mike of the eviction drive to be conducted and such information was also given to the petitioners individually. The petitioners have also projected that the land occupied by them falls outside the notified area of the Kumarkhali Forest Reserve. Accordingly, it is contended that the land under the occupation of the petitioners could not have been brought within the purview of the eviction exercise initiated by the Forest Department which was so initiated for removing encroachers from the notified area of Kumarkhali Reserve Forest.

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Per contra, it is the contention of the Forest Department Officials that they are carrying out the eviction drive for removal of encroachers from the Kumarkhali Reserve Forest Area.

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It is further projected that vide a notification dated 26.04.1966, Kumarkhali Reserve Forest was so declared with a definite boundary. The forest department has further contended that the eviction drive is confined to the notified area of Kumarkhali Reserve Forest and no encroachers occupying revenue land is being brought within the purview of the eviction drive being carried out. It is contended by the Forest Department Officials that the revenue land having not been brought within the purview of the eviction drive exercise, the grievance of the petitioners as raised in the present proceedings of threatened eviction from land under this possession reflects that they are occupying land within the said Reserve Forest. The Forest Department Officials have further stated that the petitioners, herein, would also not be covered by the provision of the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act 2006.

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3. I have heard the learned counsel for the parties and also perused the materials coming on record. The parties to the proceeding have made their submissions in line with

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the stand so taken by them in their respective pleadings.

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4. The eviction drive to remove encroachers from the Kumarkhali Reserve Forest was so initiated in pursuance to the directions passed by this Court vide the Judgment and Order dated 05.09.2022 in PIL (Suo Moto) No. 1 of 2022. The directions passed by this Court vide the said Judgment and Order dated 05.09.2022, being relevant, is extracted herein below :-

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“ Considering both the affidavits-in-opposition filed by the respondent Nos. 2 and 3, respectively, this Court is of the opinion that the respondent State authorities are taking some steps, however, in order to see that the human-elephant conflict is minimised and the forest area is maintained and the encroachment is removed, following directions deserves to be given;

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(i) The State Government in Environment & Forest Department shall adhere to the steps already initiated by it and shall continue the same in order to curb any mischief or loss of live of both of wild elephants and human beings.

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(ii) The State Government is further directed to constitute special task force to be headed by Principal Chief Conservator of Forest which would include the Divisional Forest Officer as well as the Superintendent of Police and Deputy Commissioner of Goalpara district as member of such task force which shall monitor the steps more particularly enumerated in paragraph 5 of the affidavitin-opposition as observed hereinabove, permanently.

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(iii) The Development Commissioner of Goalpara district and Divisional Forest Officer, Goalpara shall conduct survey of encroachment made in the forest area within a period of 3 (three) months from the date of receipt of copy of this order and shall immediately initiate steps for eviction of such illegal encroachment in accordance with law. However, it is clarified that while conducting eviction drive, the authorities shall follow the due process of law.

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(iv) The respondent authorities shall create facilities of veterinary treatment f or injured elephants at the Headquarter of district Goalpara.

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(v) It would be the responsibilities of the Principal Chief Conservator of Forest & Head of Forests Force, Assam, respondent No. 2 to carry out the aforesaid directions.”

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5. The present writ petition was initially being considered by the Division Bench of this Court along with Contempt Case (C) (Suo Moto) 3/2023, which was instituted alleging violation of the judgment and order dated 05.09.2022, passed in PIL (Suo Moto) No. 1/2022. This Court vide order dated 29.05.2024 with regard to the present writ petition had passed the following order :-

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“ WP(C) No. 314/2024

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WP(C) 314/2024 is filed by the petitioners being aggrieved with the General Eviction Notice issued by the Zonal Forest Officer, Goalpara Zone, addressing the encroachers to remove their encroachments from the Kumar Khali Reserve Forest of Lakhipur Range.

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The petitioners are claiming that they are residents of village Kurshapakri Pt.-II, which is adjacent to Kumar Khali Reserve Forest and they have not encroached upon any land under the Kumar Khali Reserve Forest, but in the guise of the order passed by this Court in PIL (Suo Moto) 1/2022, the respondent Forest Department is forcefully evicting them from their lands.

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In this writ proceeding, affidavit-in-opposition has been filed on behalf of the respondent Forest Department wherein it is claimed that the eviction drive is confined only to the Kumar Khali Reserve Forest area under Lakhipur Forest Range. In other words, the stand of the respondent Forest Department is that they are not evicting the persons who have not encroached upon the Kumar Khali Reserve Forest land.

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This Court, in WP(C) 314/2024 passed an interim order on 19.01.2024 to the effect that no action shall be taken pursuant to the general eviction notice issued by the Forest Department in respect of the Kumar Khali Reserve Forest till the next date. On the

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next date of hearing, it was contended on behalf of the petitioners in WP(C) 314/2024 that in violation of the interim order passed by this Court on 19.01.2024, the respondent Forest Department also dispossessed those persons who are not encroachers upon the Kumar Khali Reserve Forest area.

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Vide order dated 22.01.2024 passed in WP(C) 314/2024, the learned Single Judge, taking note of the facts and circumstances of the case, has directed the concerned official of the respondent Forest Department to file affidavit explaining whether the order dated 19.01.2024 passed by this Court has been complied with, or not, and has also extended the interim order dated 19.01.2024 till the next date. Thereafter, the said interim order dated 19.01.2024 has been extended from time to time and is in currency till today.

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Since WP(C) 314/2024 has not been finally adjudicated, we propose to remand WP(C) 314/2024 back to the learned Single Judge for adjudication on merits in accordance with law. However, taking into consideration the directions issued by this Court in PIL (Suo Moto) 1/2022, we deem it appropriate to clarify that the respondent forest authorities can initiate eviction drive in the Reserve Forest land only but not in respect of other revenue land inasmuch as for removal of encroachment upon the revenue land inasmuch as for removal of encroachment upon the revenue land, only the District Administration is having the jurisdiction.

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In view of the above observations, the interim order dated 19.01.2024 passed in WP(C) 314/2024 is modified to the extent that the forest authorities are free to initiate eviction drive in respect of the encroachments in Kumar Khali Reserve Forest land only.”

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6. In terms of the said order dated 29.05.2024, the present writ petition was listed before this Court for consideration.

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7. The petitioner although have claimed that they were occupying revenue land, in the pleadings brought on record there is no description of the land being occupied by them. The only contention of the petitioners is to the effect that they are occupying revenue land in village Kurshapakri Part II. The further contention of the petitioners is that in addition to being enrolled as voters, the residents of the said village were being extended

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with the various governmental schemes. It is the submission of the petitioners that there is a primary school along with Anganwadi Centers existing in the said village. Further it is the contention of the petitioners that the villages have also been electrified. In the event the petitioners are found to have been so occupying land within the Kumarkhali Forest Reserve, the extension of Governmental Scheme benefits to the residents of the village would be of no consequence inasmuch as, it is a settled position of law that the forest land cannot be utilized for non-forest uses.

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8. Further, it is also a settled position of law that no rights can be created or accrued in a reserve forest and accordingly the eviction drive initiated by the Forest Department Officials and impugned in the present proceedings cannot be held to be one without jurisdiction. However, it is to be noted that such exercise of jurisdiction by the Forest Department Officials shall be confined only to the notified area of the Reserve forest concerned and cannot be extended to Revenue Lands. Insofar as, illegal encroachment of revenue land is concerned, it is for the District Administration to take appropriate steps in the matter. Having noticed the above position and also considering that the parties have also agreed for disposal of the writ petition, the present writ petition need not be detained any further and can be disposed of with the following directions :-

¶111

(i) While the eviction drive initiated by the Forest Department Officials for removing encroachers from the Kumarkhali Reserve Forest, impugned in the present proceeding is not interfered with, it is provided that such exercise shall be confined to the eviction of illegal encroachers from the notified area of the Kumarkhali Reserve Forest. In the event the petitioners are found to be occupying lands within the notified area of the Kumarkhali Reserve Forest, they would be liable to be evicted, however, by following the due process of law.

¶112

(ii) In the event there arises any issue with regard to the determination of the land occupied by the petitioners, the Forest Departmental Officials before carrying out the exercise shall consult the District Administration and thereafter, ascertain as to whether the land so occupied by the petitioners falls within the Reserve Forest and after ascertaining the said aspect of the matter shall take action against such of the petitioners

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who have been found to have illegally encroached upon forest land. This Court having not interfered with the eviction drive so initiated by the Forest Departmental Official, impugned in the present proceedings, it would now be upon to the Forest Department Officials to proceed in the matter in term of the directions passed by hereinabove, and conclude the same strictly in accordance with law.

¶115

(iii) In the event the petitioners are found to have been illegally encroaching upon revenue land, the petitioners would not be brought within the purview of the eviction drive carried out by the Forest Department Official and it will be open to the District Administration to take appropriate steps in the matter by following the due process of law.

¶116

9. With the above observations and directions the writ petition stands disposed of. Interim order passed earlier stand vacated.

¶117

JUDGE

¶118

Comparing Assistant

Nurtazul Hoque and 86 Ors. v. the State of Assam and 4 Ors.

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Nurtazul Hoque and 86 Ors. v. the State of Assam and 4 Ors.

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