High Court
Case Details
WP(C) 2047/2008 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV)
Legal Reasoning
Heard Mr. S. Dutta and Mr. D. Chakraborty, learned counsel for the petit ioner and Mr. M. Bhagawati, learned Government Advocate, Assam for respondent No s. 1 to 7. Also heard Mr. R.P. Sarmah, learned Senior counsel assisted by Ms. R. Rongmai, learned counsel for the respondent Nos. 8 to 41. Facts of the case, as projected in the writ petition, may be briefly not Petitioner in this case is the Silchar Municipal Board. 2. By way of this petition under Article 226 of the Constitution of India, 3. petitioner has prayed for cancellation of allotment of 8 bighas of land in favou r of respondent Nos. 9 to 40 vide Government letter dated 28.8.2003 as well as a llotment of 3 bighas of Government land to Rongmai Naga Graveyard (respondent No . 41) vide Government letter dated 23.2.2006. 4. ed. 5. Land measuring about 52 bighas was handed over to the Silchar Municipal Board by the Government of Assam in the year 1903. The said lands are covered by Dag Nos. 462, 463, 491, 504 and 506 of Pargona Barakpar, Mouza Ambikapur Pt-X. Dag No. 462 comprises an area of 36 bighas 12 kathas and 6 chataks. The said lan d was used as trenching ground by the Silchar Municipal Board for dumping of gar bage. Silchar Municipal Board had developed the said dumping ground by spending a substantial amount of money. 6. A few Naga families headed by respondent No. 9 submitted application dat ed 5.11.1996, before the Deputy Commissioner, Cachar, Silchar for allotment of l and. They claimed to be landless people. The Additional Deputy Commissioner, Cac har, Silchar vide his letter dated 8.11.1996 as well as his note dated 11.11.199 6 requested the Executive Officer of Silchar Municipal Board to submit report in this regard. The Executive Officer, however, in his report dated 12.11.1996, re ported that about 50 bighas of land at Meherpur was owned by the Silchar Municip al Board and used as trenching ground. It was not khas land but municipal land. The said land is required for use by the Silchar Municipal Board for dumping of garbage of Silchar town. 7. Another joint representation dated 7.1.1997 was submitted by a group of Naga people before the Deputy Commissioner for allotment of land to them at Mehe rpur, Silchar for their residential purpose. However, Executive Officer of Silch ar Municipal Board again submitted report like the earlier one and requested the Deputy Commissioner to reject the prayer of the Naga people. 8. The Deputy Commissioner sent a letter dated 8.7.2002, addressed to the C ommissioner and Secretary to the Govt. of Assam, Revenue Department pointing out that proposal for allotment of 8 bighas of land pertaining to Dag No. 462 was s ubmitted to the Government in the name of 32 Naga families for homestead purpose . The Deputy Commissioner pointed out in the said letter that the aforesaid land is standing in the name of Silchar Municipal Board which is used as trenching g round. He further informed that the District Administration was looking for alte rnative land for those Naga families and, therefore, the allotment proposal may be cancelled. 9. However, inspite of the aforesaid letter of the Deputy Commissioner, the Government settled 8 bighas of land covered by Dag No. 462 in the name of respo ndent Nos. 9 to 40, the 32 Naga families, for residential purpose on payment of 30% land value as premium vide Govt. letter dated 28.8.2003. The Deputy Commissi oner was directed to correct the land record and issue patta after realization o f the premium. 10. One Sri Indrajit Dutta Choudhury filed WP(C) No. 8362/2003 before this C ourt challenging the allotment of land vide letter dated 28.8.2003 and other con sequential communications. Silchar Municipal Board was arrayed as respondent No. 7. This Court by order dated 29.9.2003, while issuing notice, had stayed operat ion of the letter dated 28.8.2003. Aggrieved, petitioner has filed the present writ petition seeking the re 11. The Revenue (Settlement) Department, Govt. of Assam granted further allo tment of land measuring 3 bighas covered by the same Dag No. 462 under Ambikapur Pt. X Mouza, Pargana Barakpar in favour of respondent No. 41 for the purpose of Rongmai Naga graveyard vide Govt. letter dated 23.2.2006. The Deputy Commission er was requested to correct the land records and to handover possession of the l and to respondent No. 41. 12. liefs as indicated above. 13. Contention of the petitioner is that though the land in question has bee n described as ’Govt. khas land’ in the revenue record, the land actually belong s to Silchar Municipal Board as at the relevant point of time the municipality w as under the control of Deputy Commissioner. Therefore, the land was shown as ’G ovt. khas land.’ Since the land belongs to the petitioner, the Govt. had no auth ority to transfer or allot the said land to the respondent Nos. 9 to 41. No oppo rtunity of hearing was given to the petitioner before allotment of such land to the private respondents. Since the land in question is used as trenching ground for dumping of garbage, which the petitioner had developed at considerable cost, petitioner will suffer serious prejudice if the impugned allotment of land is n
Decision
The writ petition was admitted by this Court by order dated 26.5.2008 an ot interfered with. 14. d was directed to be listed along with WP(C) No. 8362/2003. 15. Respondent Nos. 8 to 41 have filed affidavit. Stand taken is that Rongma i Naga people have been residing in and around Silchar town for more than a cent ury, practicing their own religion and custom. As per their custom, the dead are given a burial for which burial ground is necessary. Since 1882 to 1955, they h ad their own burial ground over Dag No. 2143/Ka, 4293 under Silchar town Mouza i n the district of Cachar. The said area was known as Subash Nagar. The Silchar M unicipal Board forced the Rongmai Naga people to shift to alternative land over Dag No. 651 under Mouza Tarapur Part XVIII. The said respondents have denied the claim of the petitioner that 52 bighas of land covered by the dags mentioned in the writ petition, including Dag No. 462, belongs to the petitioner. The said r espondents have categorically stated that the land covered by Dag No. 462 is ’Go vt. khas land’ and does not fall within Silchar Municipal area. The land falls u nder Meherpur Gaon Panchayat and in this connection, President of Meherpur Gaon Panchayat had issued a certificate dated 16.3.2009. In one part of Dag Nos. 462 and 463, the burial ground is situated since 1983. Accordingly, the Govt. has se ttled the land in favour of respondent No. 41. 16. When application was filed for allotment of land, report was submitted b y the field staff before the Assistant Settlement Officer on 27.6.2000, on the b asis of which Sub-Divisional Level Land Advisory Committee recommended for allot ment of land in favour of respondent No. 41. The Settlement Officer also submitt ed report to the Deputy Commissioner on 31.7.2000. Ultimately, the Govt. vide le tter dated 23.2.2006 allotted 3 bighas of land to the respondent No. 41. The for mal handing over of the possession of the land took place on 21.7.2006. The priv ate respondents have contended that they have always been subjected to harassmen t by the local authority for which criminal proceedings have also been initiated . 17. 18. No reply affidavit has been filed by the petitioner. It may be mentioned that though the present writ petition i.e. WP(C) No. 2047/2008 was tagged with WP(C) No. 8362/2003 filed by Sri Indrajit Dutta Choud hury, on 15.11.2012, learned counsel for the petitioner in WP(C) No. 8362/2003 s ubmitted on instruction that the petitioner did not want to press the said writ petition. Accordingly, WP(C) No. 8362/2003 was dismissed on 15.11.2012. Mr. S. Dutta, learned counsel for the petitioner submits that the land i 19. n question belongs to the Silchar Municipal Board. Though in the land record the land was shown as khas land, in the remarks column, it was shown as municipalit y reserve which clearly indicates that the land was used for municipal purposes. Since at the relevant point of time the municipality was under the control of t he Deputy Commissioner, the land was shown as khas. He submits that the land in question is being used as dumping ground by the Silchar Municipal Board. Therefo re, under Section 62 (f) of the Assam Municipal Act, 1956, the said land could n ot have been taken out of the jurisdiction of the Municipal Board and allotted t o the private respondents. No notification has been issued under Section 62(2) o f the aforesaid Act, declaring that the land in question had ceased to be land b elonging to the Silchar Municipal Board and, therefore, the impugned action is i llegal and liable to be appropriately interfered with by this Court. 20. Mr. M. Bhagawati, learned Government Advocate submits that though the St ate has not filed affidavit in the present case, he would support the decision o f the Government. He submits that the petitioner has not been able to show or pl ace any material on record that the land belongs to Silchar Municipal Board. As the land was Government khas land, the Government was within its right to allot the land to the private respondents based on field report and assessment made at the Government level. He submits that petitioner has failed to make out any cas Submissions made have been considered. Materials on record have also bee e for interference by the Court and prays for dismissal of the writ petition. 21. Mr. R.P. Sarmah, learned Senior counsel for the respondent Nos. 8 to 41 submits that it has been a long standing grievance of the people belonging to th e minority tribal Rongmai Naga community to have their own land where they can s tay permanently and also to have their own burial ground. The State Government t aking a sympathetic view and considering all relevant factors had allotted the l and to the Rongmai Naga families. No illegality has been committed in giving suc h allotment. He further submits that not only the land belongs to the Government , but it is also situated outside the Silchar Municipal area beyond the jurisdic tion of Silchar Municipal Board. Contending that no right of the Silchar Municip al Board has been infringed, learned Senior counsel prays for dismissal of the w rit petition. 22. n perused. 23. The basic objection of the petitioner to the allotment of land by the Go vernment to the private respondents is that the land belongs to the Silchar Muni cipal Board and, therefore, the Government had no jurisdiction to allot such lan d to the private respondents. The procedure prescribed under Section 62(2) of th e Assam Municipal Act, 1956, which provides for publication of notification by t he State Government declaring ceasation of property vested in the Municipal Boar d to be so vested, has not been followed. Therefore, according to the petitioner , allotment of land to the private respondents is illegal. 24. Annexure 1 document placed on record by the petitioner shows that the la nd is khas land with the remark ’municipality reserved’. Nothing has been placed on record by the petitioner to show that the land actually belongs to it. On th e other hand, respondent Nos. 9 to 41 have enclosed a copy of certificate dated 16.3.2009, issued by the Meherpur Gaon Panchayat to show that the land is situat ed outside the Silchar Municipal area. Contention of the petitioner is that though the land is shown as Governm 25. ent khas land, it is actually municipal land belonging to the petitioner. This c ontention of the petitioner cannot be accepted as it was always open to the peti tioner to have initiated appropriate legal proceeding for conversion of such lan d from Government khas land to land belonging to the Silchar Municipal Board. No such step appears to have been taken by the petitioner. Mere assertion by the p etitioner that the land belongs to them will not confer title. Moreover, the pet itioner has not controverted the statement made by respondent Nos. 8 to 41 that the land is situated outside the municipal limits of Silchar Municipal Board and falls under Meherpur Gaon Panchayat. 26. The provisions of Section 62 of the Assam Municipal Act, 1956, which pro tects municipal property and lays down procedure to be followed if the Governmen t seeks to divest the municipality of such property, will only come into play wh en the land belongs to the Municipal Board. In the present case, petitioner has failed to show with any degree of conviction that the land belongs to it. 27. Moreover, the claim of the petitioner, which is highly contested by all the respondents, is based on disputed questions of fact. Petitioner has not appr oached the appropriate legal forum for declaration of right, title, interest and for possession over the land in question. There is no document on record to con clusively show beyond doubt that petitioner was the owner of the land. 28. In such circumstances, this Court is not inclined to grant the relief(s) as sought for by the petitioner. 29. ordingly dismissed. However, there shall be no order as to cost. This Court, therefore, finds no merit in the writ petition, which is acc