High Court · 2009

The first respondent herein filed the above mentioned writ petition pray ing that the 4th respondent herein be directed to settle the Dhumarkur Private H att by the process of tendering in terms of the Assam Panchayat Act with a furth er prayer to direct the above mentioned respondent not to allow any private pers on to run the above mentioned Hatt until the same is settled in accordance with law. The case of the first respondent/writ petitioner is that a particular pi ece of land, the details of which are given in the writ petition and may not be necessary at present, was initially owned by one Late Ushangini Das and later mu tated in the name of one Ajay Kr Mukhapadhya in the year 1967. According to the petitioner the above mentioned piece of land was subsequently acquired by the St ate in the year 1983, as being ceiling surplus land, under the provisions of the relevant Ceiling Act and, therefore, the title of the above mentioned piece of land vests in the State. The petitioner further alleged that though the title of the above mentioned property vests in the State the right to carry one a Hatt w as not settled by the appropriate authority under the Assam Panchayat Act as con templated under Sec 107 of the Act. It is also specifically averred in the writ petition at para 4 that the respondents allowed some individuals to run the Hatt . It is worthwhile mentioning that the further details as to who was running the Hatt was not mentioned in the writ petition nor the person who was running the Hatt is made a party to the writ petition. It is further averred by the writ pet itioner that pursuant to certain complaints in this regard the 4th respondent he rein issued a notice dated 17-4-07 inviting tenders for settlement of the above mentioned Hatt. Even on the admission of the writ petitioner such a notice came to be challenged by the present appellant in WP(C) No.2619/07. It appears that t he above mentioned writ petition eventually came to be disposed of as having bec ome infructuous. It is the case of the first respondent/writ petitioner that not withstanding the lapse of the settlement by efflux of time no fresh process for settlement as contemplated under Sec 107 of the Assam Panchayat Act was initiate d by the official respondents. The writ petitioner/first respondent herein made a categoric assertion at para 5 of the writ petition (cid:28)therefore, the petitioner and other contesting parties are deprived from getting the settlement of the Hat . Hence this writ petition (cid:29). By the judgment under appeal, to which the present appellant was not a p arty, a learned Judge of this court on a consideration of the materials directed the respondents to settle the above mentioned Hatt as per the provisions of Ass am Panchayat Act. It is the specific case of the appellant that the land on which he is ca rrying on the business of running a Hatt is a private property and not a propert y owned by the State. It is also averred by the appellant that he is only a less ee of the land referred to above from the title holder and that he has been carr ying on the business of running a private Hatt on the strength of the above ment ioned lease. The right to carry on any business, which is not prohibited by law, on p rivate property is a fundamental right guaranteed to the citizens of this countr y under Article 19(1)(g) of the Constitution. Though Section 107 of the Assam Pa nchayat Act purports to regulate the right of the owners of land to carry one th e business of running a Hatt by inviting tenders from interested parties the leg ality and constitutional validity of the said provision came to be challenged in this court by a batch of writ petitions and by a judgment dated 30-3-09 in WP(C ) No.3828/2008 a Division Bench of this court, to which one of us is a party, de clared the said provision to be unconstitutional and it was also recorded in the said judgment that except for the provision of Section 107 of the Assam Panchay at Act and Rule 47 of the Assam Panchayat Financial Rules no other provision, wh ich enables the State of Assam or any one of the statutory authorities functioni ng under the Assam Panchayat Act, to regulate the carrying on the business of ru nning a Hatt on a private property, was brought to the notice of this court. In view of the above mentioned judgment and in view of the declaration i nsofar as Section 107 is concerned, the resultant situation is that as of now th ere is no other provision which seeks to regulate the establishment and running of private Hatts on private property. Therefore, the prayer of the writ petitioner that the respondent authori ties be directed to settle the Hatt in question in accordance with the provision s of the Assam Panchayat Act cannot be granted. However, when the writ appeal was taken up on an earlier occasion the fi rst respondent/writ petitioner argued that in view of his categoric assertion in the writ petition that the property on which the appellant is carrying on the b usiness of running a Hatt is a property the title of which vests to the State of Assam and, therefore, the State would still be competent and is required to set tle the right to carry on business of Hatt by tender system keeping it open to t he interested parties. On the other hand the appellant seriously disputes the fa ct that the title of the property in question vests in the State and asserts tha t it vests in a private person. In the background of the above mentioned disputed claims over the title of the property we called upon the respondent authorities to take a clear stand as regards the title of the property in question. The Deputy Commissioner, Barpeta, who is the respondent No.5 in the pres ent appeal, filed an affidavit dated 27-3-09 in substance stating that the prope rty in dispute in the present appeal is private property and not property owned by the State and also that the present appellant is running the above mentioned Hatt for the last 15 years after entering into an agreement with the owners of t he said property. In view of the categoric stand taken by the 5th respondent that the prop erty on which the appellant is carrying on business of private property in our v iew nothing further survives for examination in this appeal. However, Mr AS Choudhury, learned senior counsel for the first responden t very strenuously argued that the affidavit filed by the 5th respondent is inco nsistent with some documentary evidence produced by him to indicate that the tit le of the property vests in the State and, therefore, the affidavit be rejected. We regret our inability to accept the submission made by the learned counsel for the first respondent for the reason that rejecting a categoric affidavit filed by a responsible officer of the State on the ground of some documents produced b y the petitioner would require an examination of disputed facts and taking of ev idence to ascertain the truth of the matter. The forum under Article 226 of the Constitution is not a convenient forum and it is consistently held by the courts of this country that the disputed questions of fact are not normally adjudicate d upon under Article 226 of the Constitution and we do not see any reason to dep art from the said principle. If the first respondent/writ petitioner is aggrieve d otherwise it is open for him to agitate the question of title of the property, which is the subject matter of dispute in the present writ appeal, before such appropriate forum and in such manner permitted by law. For the above mentioned reasons the appeal is allowed. The judgment under appeal is set aside. The Misc Case No.129/2009 also stands disposed of.