High Court · 2009

In the W.P.(C) No. 2988/08, the order dated 30.6.08 issued by the Chief 2. Executive Officer, Zilla Parishad, Dhubri was put to challenge whereby a decisio n was taken to settle the Gowalerchar Babarhat Bazar (hereinafter referred to as the (cid:28)Bazar (cid:29)), under Nayeralga Development Block on experimental basis for one m onth w.e.f. 1st July, 2008 to 31st July, 2008. The writ petitioners contended th at the market was established as a private Bazar on their patta land in the year 1998 and therefore the Zilla Parishad has no authority to give settlement of th e said Bazar. The respondent No. 5 filed counter affidavit contending that the Bazar 3. has been set up on Govt. khas land and it was averred that some of the sheds in the Bazar have been constructed out of Govt. funds under different development schemes of the government.

4. In course of the proceedings, certain reports were made available on the basis of information given by the Dhubri Zilla Parishad and Asstt. Settlement O fficer, Bilasipara, which indicated that the bazar is located on Govt. khas land . The writ petitioners, however, continued to contend that the Bazar is being ru n on the private land of the petitioners and not on Govt. land.

5. Whether the Bazar is being run on Govt. land or private land was conside red to be a disputed question of fact by the learned Single Judge and accordingl y the writ petition was disposed of on 22.8.08 by relegating the writ petitione rs to approach the appropriate Court to resolve the issue. W.A. No. 290/08 is filed by the writ petitioners to challenge the Single Bench’s order dated 22.8.08 where the authority of the Zilla Parishad to make the settl ement of bazaar set up on privately owned land is being questioned.

6. Pursuant to the dismissal of the writ petition, the C.E.O., Dhubri Zilla Parishad, issued an order dated 20.9.08 settling the Bazar from 20.9.08 to 30.6 .09 with one Laily Khatun Bibi. This order was challenged by Ziaruddin Ahmed who filed W.P.(C) No. 4536/08 by contending that he is the Secretary of the Bazar C ommittee and the Zilla Parishad has no authority to settle the Bazar, which is s et up over patta land.

6.1. This Court on 10.11.08 passed interim order in W.P.(C) No. 4536/08, stay ing the settlement order dated 20.9.08 granted in favour or respondent No. 5 Lai ly Khatun Bibi.

6.2. filed by respondent No. 5 Laily Khatun Bibi. Subsequently the stay order was vacated on 24.11.08 in M.C. No. 3160/08

6.3. Aggrieved, the writ petitioner Ziaruddin Ahmed has filed W.A. No. 8 of 2 009 to challenge the settlement of the Bazar by the Zilla Parishad and operation of the same by the settlement holder.

7. Before this Court a counter affidavit has been filed by the Deputy Commi ssioner, Dhubri, where it is indicated that the Bazar in question at Kathaldi Pt -II under Bilasipara Revenue Circle, is being run on Govt. land covered by Dag N o. 807/811/ 812/911 and 912 and part of the bazar encompasses patta land covered by different Dag numbers. The details of the private land are specifically indi cated in the affidavit filed by the Deputy Commissioner on 27.8.2009.

8. As can be seen from the case papers that initially Dhubri Zilla Parisha d settled the market on 30.6.08 on experimental basis, only for a month. But aft er the W.P.(C) No. 2988/08 was disposed of on 22.8.08, a 2nd settlement order wa s issued on 20.9.2008 by the Zilla Parishad w.e.f. 20.9.08 to 30.6.09. The peri od of even the 2nd settlement is now over and as such in so far as the orders im pugned in the writ petitions, the appeals have become infructuous.

9. As regards the right of the Panchayat Authorities to make settlement of bazaar set up on private land, this Court in the case of Rupam Talukdar vs. St ate of Assam & ors reported in 2009 (4) GLT 126 has already resolved this issue . In this case, the Court on a similar challenge has declared Section 107 of the Assam Panchayat Act and Rule 47 of the Assam Panchayat (Financial) Rules as ult ra vires and unconstitutional and the petitioners who were running private marke t on their patta land, have been held entitled to carry on their business, witho ut interference from the Panchayat authorities.

10. Having regard to the above decision in Rupam Talukdar (Supra), there can be no manner of doubt that the provisions of the Panchayat Act cannot be applie d to give settlement of markets set up over private land by the Zilla Parishad.

11. But at the same time it would be appropriate to declare that the Panchay at authorities are entitled to give settlement of bazars set up on Govt. or Panc hayat lands, and the submissions of Mr. D.C. Mahanta, learned senior counsel app earing for the respondent on this aspect is accepted.

12. Having indicated the law as aforesaid, we do not consider it necessary t o decide which part of the Bazar in question, is located over Govt. land and whi ch part is located over private land. This aspect according to us, should be exa mined by the authorities, as and when they decide to make settlement of Gowalerc har Babarhat Bazar, by reference to the contemporaneous records and applicable p rovisions of law.

13. to bear their own costs. The Writ Appeals are disposed of in light of above, leaving the parties