Rafikul Islam and Anr. Vs the State of Assam and 3 Ors.

THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, REVENUE AND DISASTER MANAGEMENT DEPARTMENT, DISPUR, GUWAHATI-781006

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2:THE DEPUTY COMMISSIONER DARRANG DIST-DARRANG ASSAM

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3:THE CIRCLE OFFICER DOLGAON REVENUE CIRCLE DIST-DARRANG ASSAM

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4:THE OFFICER-IN-CHARGE DOLGAON POLICE STATION DOLAGAON DIST-DARRANG

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ASSA

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Advocate for the Petitioner : MR. A SARMA, MR. LENTSO,MR H KALITA

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Advocate for the Respondent : SC, REVENUE, GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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Date : 19.03.2025

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Heard Mr. Lentso, learned counsel for the petitioners. Also heard Ms. G Hazarika, learned counsel for the respondent No.1 and Mr. S Baruah, learned counsel for respondent Nos. 2 to 4.

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The grievance of the petitioners is that they purchased a plot of land measuring 3 Katha 10 Lechas covered by Dag No.50 of Bechimari village under Mouza Pachchim Dolgaon in the district of Darrang purchased from their vendor Abdur Rashid by way of an unregistered deed of sale dated 16.05.2005.

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Accordingly their names have been registered in the chita copy of the year 2010 itself and said Abdur Rashid was shown as an occupier.

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According to the petitioners, after purchasing the said land, the petitioners applied before the Circle Officer, Dolgaon Revenue Circle to allot the said plot of land in favour of the petitioners. According to the petitioners, the said plot of land is under possession of the petitioners since last 13-15 years.

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It is their further case that the Circle Officer Dolgaon Revenue Circle by impugned letter No.DC(MISC)1/2020/PT-2/967 dated

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23.12.2021 requested the Officer-in-charge, Dolgaon Police station to do the needful in evicting the petitioners from the said plot of land.

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It is the case of the petitioners that no notices have been issued to them prior to the eviction.

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Perused the impugned communication dated 23.12.2021. The same was issued by the Circle Officer, Dolgaon Revenue Circle to the Officer in charge, Dolgaon Police station and it was intimated that though a land measuring 3 katha, 10 lechas of land and other plot of land measuring 1 bigha, 1 katha and 7 lechas of Dag No.50, totaling land measuring 1 bigha 4 kathas and 17 lechas situated in revenue village Bechimari under Mouza Pachim Dolgaon, is recorded as government land, however, someone has illegally encroached the land measuring 3 katha 10 lechas of Dag No.50 by constructing tin Sali house and accordingly the said Inspector of Police was requested to evict those persons. The State has also filed an affidavit taking a similar stand. Though there was a direction to evict but there is nothing on record or affidavit filed by the Circle Officer to show that any notice was issued to the petitioners.

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A Division Bench of this court in WP(C) 1057/2022 (Md. Salak Uddin Vs. State of Assam and 2 Ors.), while dealing with a reference as to whether a notice is required to be issued under Section 18(2) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 has made certain conclusion. Since such conclusions are having importance and determinative factor in adjudication of an eviction process, the same are curved out in the following manner:

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I. Rule 18(2) of the Settlement Rules clearly shows that Deputy Commissioner or such authority duly empowered under Rule 3 of the Settlement Rule has to arrive at a subjective satisfaction that there is no bona-fide claim of right.

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II. Revenue authorities cannot be permitted to unilaterally decide as to whether an occupier/ possessor has a bona-fide claim of right involved inasmuch as it would require adjudication of both law and facts and without providing an opportunity to the occupier / possessor, such decision would be in violation of the principle of natural justice which in turn would violate Article 14,19 and 21 of the Constitution.

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III. Though Rule 18 (2) is silent on the question of issuance of the notice, but use of the word ‘forthwith’ does not necessarily and absolutely exclude the prior application of audi alteram partem Rule inasmuch as immediacy or urgency requiring swift action is a situational fact, having a direct nexus with the likelihood of adverse affect.

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IV. Bona-fide claim, in case of Government khas land or waste land, may involve a bona-fide claim of right to claim settlement over the land on the basis of settlement Rules and extant land policy of the Government of Assam. In respect of other lands i.e. lands previously reserved for roads or roadside lands, or for grazing of village cattle or for other public purposes or the occupant had entered into possession of land from which he has been excluded by general or special order, such lands are outside the purview of settlement, there may be various

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situations, where the question of disputes pertaining to the boundary or there may be disputes pertaining to reservations or de-reservation for grazing of village cattle or for that matter, there may be a dispute that the persons who have been granted the settlement in respect of a land even prior to being previously reserved for the purpose, may arise.

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V. Under such circumstances, issuance of a notice shall be necessary to form a subjective satisfaction, which is in consonance with the principles of natural justice inasmuch as same will facilitate a just, fair and transparent procedure, which are facets of Article 14,19 and 21 of the Constitution.

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In the backdrop of the aforesaid settled proposition of law, now let this court consider the factum of the present case. In the factum of the case in hand, the allegation is that the petitioners are occupying government land. At the same the petitioners claim a right over the aforesaid land. Admittedly, no notice of any kind not to say any notice under Rule 18 was issued to the petitioners, rather on the basis of the determination made by the Circle Officer on its own after spot verification, directed the Officer in charge, Dolgaon police station to evict the petitioners from the land. In the considered opinion of this court, such course of action is not mandated under the settlement rules or any of the provisions under the Assam land Revenue Regulations, 1886. In fact, such kind of direction will amount excess of jurisdiction not only by the Circle Officer but also by the police. Without issuing any notice, a direction cannot be issued to evict a person who is allegedly occupying the government land, inasmuch as, such person

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might have some bona fide claim over such land and such claim is to be determined as stated in Salak Uddin (supra).

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Accordingly, the impugned direction dated 23.12.2021 issued by the Circle Officer, Dolgaon Revenue Circle to the Officer in charge, Dolgaon Police station stands set aside and quashed being without jurisdiction and beyond the scope of the Rule 18 of the Assam Land Revenue Regulation, 1886.

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While parting with the record, it is made clear that this order shall not restrict the revenue authorities to issue a notice of eviction under the settlement rules, however, the decision to evict the petitioner, if any, shall be made in terms of the principle laid down in the case of Md. Salak Uddin (supra).

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In view of the above, the writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Rafikul Islam and Anr. v. the State of Assam and 3 Ors.

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