Motilal Sarma Vs the State of Assam and 3 Ors.

Advocate for the Petitioner : Mr. S. Das, Advocate Advocate for the Respondents : Mr. H. Sarma, GA, Assam Date of hearing : 01.04.2025 Date of Judgment and order : 09.05.2025

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JUDGEMENT & ORDER (CAV)

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1. Heard Mr. S. Das, learned counsel for the petitioner and Mr.H. Sarma, learned Government Advocate, Assam, for the respondent Nos.1 to 3. No appears for the respondent No.4, though the name of the learned counsel for the said respondent is reflected in the cause list.

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2. The case of the petitioner in a nutshell is to the following effect :

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(i) The petitioner herein is the owner of a plot of land, measuring 2 Bighas, covered by Dag Nos. 20 & 21 under Patta No. 9 situated at Village- Nalaghat Nonke, Mouza- Boko, District- Kamrup, Assam. Along with the said 2 Bighas, the petitioner was also adversely possessing another plot of land, measuring 3 Kathas, 1 Lecha covered by Dag No. 60 under Patta No. 190 situated at VillageLangkona Mouza- Boko, District- Kamrup belonging to one Sukumar Sarkar.

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(ii) In the year 2013, the respondent No.4, Dilip Kumar Rabha, tried to grab the said 3 Kathas, 1 Lecha land, claiming to have purchased the same from the son of Sukumar Sarkar.

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(iii) Therefore, the petitioner filed Title Suit No. 378/2014 before the Court of Munsiff, Amingaon, Kamrup, praying for declaration of his right, title and interest over the said land against the respondent No.4, Dilip Kumar Rabha. The respondent No. 4 also filed a counterclaim therein.

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(iv) The learned Court of Munsiff, Amingaon, Kamrup after considering the shreds of evidence of both sides, passed judgment and order dated 30.09.2019 dismissing the suit of the petitioner as well as the counterclaim filed by the respondent No. 4.

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(v) On 01-02-2021, the respondent No.3, Circle Officer, Boko Revenue Circle, Boko, along with the office staff and the police personnel from Boko Police Station, arrived at the suit land and forcefully evicted the petitioner there from by demolishing the houses and other structures standing thereon. When the petitioner asked reason behind such action, the respondent No.3, the Circle Officer and other officials, they informed him that in pursuance of the judgment and order dated 30.09.2019 passed by the learned Court of Munsiff, Amingaon in Title Suit No. 378/2014, they have evicted the petitioner from the suit land to hand over the possession of suit land to the respondent No.4. However, no such order was passed by the learned Munsiff as the suit as well as the counter claim wrere dismissed.

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(vi) Therefore, it is alleged that the petitioner was illegally evicted from the suit land by the respondent authorities, wrongly citing the learned Munsiff Court’s order. Finding no alternative, the petitioner has preferred this petition.

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3. It is on record and not disputed by the State respondents that a Notice under No. BRC4/2020/62 dated 25.01.2021 was issued by the then Circle Officer, Boko

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Revenue Circle, Boko, respondent No. 3 addressing the respondent No. 4, informing him that the possession of the subject land, shall be handed over to the respondent No. 4 on 01.02.2021 at 11:00 AM in terms of the order dated 30.09.2019 passed by the Court of Munsiff, Amingaon.

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4. Another communication under No. BRC 4/2020/87 dated 30.01.2021 was issued to the Officer-in-Charge, Boko Police Station, Boko, asking the said Officer-in-Charge to remain present on 01.02.2021 at 11:00 AM in the subject land as the possession of the subject land shall be handed over to the respondent No. 4 on the said date, i.e., 01.02.2021. Accordingly, the possession of the subject land was handed over by the Circle Officer, Boko Revenue Circle, Boko, to the respondent No. 4. The fact of the initiation of the Suit by the petitioner against the respondent No. 4 and the dismissal of the same are not in dispute.

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5. It is also reflected from the aforesaid Notice dated 25.01.2021 and the communication dated 30.01.2021 that the possession of the subject land was proposed to be handed over as per the direction of the Court of Munsiff, Amingaon.

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6. In the aforesaid backdrop, this Court has perused the judgment and order dated 30.09.2019 passed in Title Suit No. 387/2014 preferred by the present petitioner. The aforesaid judgment and order go to show that the suit preferred by the present petitioner and the counterclaim filed by the respondent No.4, were dismissed without cost. Therefore, it is clear from the aforesaid judgment and order dated 30.09.2019 that there was no decree or order of recovery of possession of the subject land in favour of the respondent No. 4 in his counterclaim. Even otherwise, until and unless, an Executing Court directs the respondent No. 3 to hand over the possession of the property to the respondent No. 4, in execution of any decree, the respondent No. 3, being a revenue authority shall have no sanction at authority under law to hand over possession of the subject property to the respondent No. 4 by evicting the petitioner with the help of the local police. Such action is out and out illegal and beyond the jurisdiction of a Circle Officer. Such action is nothing but

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lawlessness.

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7. The respondent State has filed an affidavit. In the aforesaid affidavit, it is candidly admitted that the petitioner preferred a Title Suit being Title Suit No. 378/2014, before the Court of learned Munsiff, Kamrup at Amingaon. By the judgment and order dated 30.09.2019, the learned Trial Court dismissed the aforesaid suit and against the aforesaid judgment and order dated 30.09.2019, the petitioner preferred title appeal, which was numbered and registered as TA No. 20/2022 and the same is pending for adjudication at present before the Court of learned Civil Judge, Kamrup at Amingaon.

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8. Though in the aforesaid affidavit, a statement has been made that the authorities are duty bound to honour the order of the Court and to follow the direction passed in the aforesaid proceeding, however, nothing is disclosed as to under what authority, they have taken the impugned action, more particularly, referring to the decision of the learned Trial Court. An additional affidavit was also filed by the Circle Officer, Boko Revenue Circle, Boko. A specific stand has been taken that it could not be understood from the records available in the office of the Circle Officer as to why the then Circle Officer, Boko Revenue Circle, Boko passed the order to hand over the possession of the subject land to the respondent No. 4.

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9. Thus, from the affidavits, it is clear that the action of handing over possession of the subject land to the respondent No. 4 by the then Circle Officer, Boko Revenue Circle, Boko is an high-handed action resulting in violation of the right of a citizen not only under Article 21 of the Constitution of India but also 300A of the Constitution of India.

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10. Therefore, in the considered opinion of this Court, the respondents have failed to justify their impugned action and this Court is of the unhesitant view that such illegal action is required to be set aside and accordingly, such notice dated 25.01.2021 as well as the communication dated 30.01.2021 and the action of handing over the

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possession of the subject land, are declared to be illegal and void.

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11. In the given facts of the present case, in the considered opinion of the Court, only a declaration would be manifestly insufficient, and to properly redress the petitioner, it requires restoration of the possession from where he had improperly been ejected with the help of the police. There is no iota of doubt in the mind of this Court that this Court, in the given fact of the present case, shall be justified in restoring such possession of subject land inasmuch as such direction is based on the principle that a writ Court, which is a Court of equity and justice, can repair the injury done to the writ petitioner in the hands of the State and its officers in total illegal manner.

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12. The Hon’ble Apex Court in Shri Sohan Lal Vs. Union of India and another reported in AIR 1957 SC 529 dealing with an illegal eviction in contravention of Section 3 of the Public Premises (unauthorised Occupation) Eviction Act, in no unambiguous term held that where the eviction of a person was in contravention of expressed provision of Section 3 of the said Act, the same is illegal and therefore, writ of mandamus, could be issued against the State to restore possession of the property to him, from which he has been evicted.

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13. In the consideration of this Court, such principle shall squarely be applicable in the given facts of the present case, given the determination made hereinabove by this Court. Accordingly, it is directed that the Circle Officer, Boko Revenue Circle, Boko, respondent No. 3 shall forthwith hand over the possession of the subject land to the petitioner, and the respondent No. 4 shall cooperate with such handing over.

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14. The action of the then Circle Officer, Boko Revenue Circle, Boko, is a disturbing trend which is against the rule of law and in fragrant disregard of law inasmuch as a Civil Servant holding the responsible post of the Circle Officer, could not have evicted a citizen without any authority under law, more particularly, without there being any direction from the learned Munsiff.

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15. That being the position, in the prima facie view, such illegal action of the Circle Officer, should be brought to the notice of the Chief Secretary of the State. Accordingly, the Registry is to communicate this order to the Chief Secretary, Government of Assam, Revenue and Disaster Management Department, to do the needful.

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16. This Court is also of the opinion that it is a fit case where a cost should be imposed upon the State for its failure to protect the right of a citizen as recorded hereinabove. Accordingly, the cost is quantified as Rs. 2,00,000/- (Rupees Two Lakhs), which is to be paid to the petitioner by the State, more particularly, i.e., the Commissioner and Secretary to the Government of Assam, Revenue and Disaster Management Department. Such cost be paid to the petitioner within 4 (four) weeks after receipt of a certified copy of this order, which is to be furnished by the petitioner to the Commissioner and Secretary to the Government of Assam, Revenue and Disaster Management Department.

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17. It is needless to say that the said respondent shall be at liberty to recover the aforesaid amount from the concerned officer, if they so desire, by following due process. The state shall also be at liberty to proceed departmentally against the erring officer, if it so desires.

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18. While parting with the record, it is made clear that the present order is passed taking note of the illegal action on the part of the then respondent Circle Officer, Boko Revenue Circle, Boko and such determination made hereinabove, therefore, shall not be treated as comment on the right, title, interest over the subject land, either of the petitioner or the respondent No. 4 or of any party, who may claim such right, title, interest over the subject land and any Court dealing with the matter relating to the subject land, shall not treat the present order as comment on the merit of the claim of the parties regarding right, title, interests and possession of the subject land.

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19. With the above observation and direction, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Motilal Sarma v. the State of Assam and 3 Ors.

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Motilal Sarma v. the State of Assam and 3 Ors.

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