Dewan Jamsher Ali and another v. State of Assam and others

(cid:28)Heard Mr. A.K. Goswami, learned senior counsel appearing for the petiti oners. Mr. J. Patowari, learned standing counsel for the Public Works Department appears for respondents 2, 3, & 4. Respondents 1, 5 & 6 are represented by Mr. H. Rahman, learned Government Advocate. The petitioners claim that a village road from Kayakuchi Pather to Nashatra via Helacharpam is being constructed under the PMGSY Scheme over the Patta land of t he petitioner, without taking any steps for acquisition of the said land and pay ment of compensation to the Patta holders. In view of above, let a Notice returnable on 22.2.2010 be issued to enab le the Government Counsels to obtain instructions. In the mean time status quo on the construction over the land of the pet itioners measuring 4 Bighas, under Dag No. 328, patta No. 155, Mouza Paka, villa ge Kayakuchi Pather in the District of Barpeta be maintained. (cid:29)

4. During the pendency of the writ proceedings, the officials of the State respondent filed their pleadings in the form of an affidavit whereof the stands in the both writ petitions are identical. The stand of the respondent Nos.2, 3 a nd 4 as averred in the affidavit are that the construction of road from Helachar pora to Nasatra via Pethandipam including cross drainage works are carried out u nder the supervision of the answering department under the PMGSY (Regular) Ph-(V II) for the year 2007-08, package No.AS-01-74 which road is 3 km in length, wher efor the construction/ development of the road is carried out in the existing ro ad and not over the land as alleged. Moreover, as per the Detailed Project Repor t (’DPR’ for short) and the Right of Way (ROW for short) of the existing track i s 12 meter and there is no necessity of acquiring the petitioner’s land and simi larly, the question of destroying the movable and immovable properties belonging to the petitioners does not arise, since no construction is carried out over th e petitioner’s plot of land.

5. The stand of the respondent No.5 in both the cases are same wherein the respondent No. 5 contended that the bend as stated at paragraph-3 of the writ pe tition is existed in the original i.e. Koyakuchi Pathar to Pathadi Road and the bend road is utilized for movement of thela, rickshaw, bicycle, motorcycle and p edestrians also and the construction of the road is being carried out on the ori ginal existing road, hence there is no question to acquire land.

6. WP(C) No. 910/2010 came up for consideration after the pleadings were co mpleted and the Court after hearing the parties on 7.10.2010 passed the followin g orders: (cid:28) Heard Mr. A. Roshid, learned counsel appearing for the petitioner and Ms. Phukan, learned Government Advocate appearing for the State-respondents. Als o heard Mr. J. Patowary, learned Standing Counsel appearing for the respondent N os. 2, 3 and 4. The claim of the petitioners in this writ petition is that the State PWD had encroached upon the land of the petitioner which is described to be under D ag No. 328, Patta No. 155, Mouza-Paka, village Kayakuchi Pather in the District of Barpeta. The further contention of the petitioner is that the construction of the road in question has been started by the respondent authority under the PMG SY Scheme without acquiring the encroached portion of the petitioner’s land and as such a direction is sought for from this Court either for acquisition of land and payment of compensation thereto. This contention is disputed in the affidav it filed by the Chief Engineer of State PWD as well as by the Government respond ents by contending that while carrying out the construction of the road under PM GSY (Regular) Ph-VII for the year 2007-2008, Package No. AS-01-74, the construct ion/upgradation is done on the existing road and this assertion is again dispute d by the petitioner by filling a rejoinder affidavit. The Court is not in a posi tion to understand whether the land of the petitioner has been encroached upon b y the State PWD in the construction/upgradation of road under PMGSY scheme or no t and at the same time, the Court is not inclined to throw out this petition on the ground of involvement of disputed question by facts inasmuch as the dispute raised by the parties can be resolved once a proper demarcation of the area is d one by the competent authority. In this view of the matter, the Circle Officer, Sarthebari Revenue Circl e, District Barpeta who is the competent authority to conduct demarcation of the disputed land, is directed to conduct a demarcation of the area with the help o f the revenue records to find out whether the construction/upgradation of the ro ad has touched/encroached upon any portion of the land belonging to the petition er as claimed or the construction in question is within the existing road/govern ment land. The demarcation shall be done by the Circle Officer, Sarthebari Reven ue Circle, after giving due notice to the parties in the case i.e. the petitione r and the PWD, within a period of one month from the date of receipt of a copy o f this order. The Circle Officer is further directed to submit the report of the demarcation. List this matter on 11.11.2010. Registry is directed to send a copy of this order to the Circle Officer, Sarthebari Revenue Circle, through the Deputy Commissioner, Barpeta. (cid:29)

7. However, in pursuance of the order dated 7.10.2010 passed in WP(C) No. 9 10/2010, an additional affidavit has been filed by the respondent No. 5 in order to place the enquiry report submitted by the Circle Officer, Sarthebari Revenue Circle, Barpeta in compliance of the order dated 7.10.2010. From Paragraph 3 of the additional affidavit filed by the respondent No. 5, it would reveal that th e petitioners’ land has been used in the construction of the said road. For bett er appreciation and controversy raised in the pleadings of both the writ petitio ns, paragraph-3 of the additional affidavit is quoted hereunder: (cid:28) That I have filed this additional affidavit to place the enquiry repor t submitted by the Circle Officer, Sarthebari Revenue Circle, Barpeta, Assam. It is stated that the aforesaid Circle Officer upon enquiry submitted a report bei ng No.STB/LR-18/94/1446, dated 07-12-2010. In this report it has been stated tha t the land involved in the writ petition is situated under village-Kayakuchi Pat her, under Mouza- Paka and the same is stated to be of Dag No. 328, Patta No. 15 5 and it has been seen that the newly constructed road under PMGSY Scheme has en croached petitioners patta land. The trace map annexed herewith would show that the Government land where the road existed falls under Dag No. 330 whereas the r oad now aligned under PMGSY Scheme over the Patta No.155, Dag No. 328 belongs to the petitioners. After due measurement in presence of the pattadar Dewan Jamshe r Ali, the Public Works Department representatives and the local Gaon Burah it h as been found that about 2 kathas 3 lechas land of the said Dag and Patta has be en used in the construction of the said road. (cid:29)

8. - A bare reading of PMGSY scheme and guideline, it would disclose as thus, (cid:28)2. Programme Objectives. (Relevant portion)

2.1 & & & & & & & & & & &.

2.2. The PMGSY will permit the Upgradation (to prescribed standards) of the existing roads in those Districts where all the eligible Habitations of t he designated population size (refer Para 2.1 above) have been provided all- wea ther road connectivity. However, it must be noted that Upgradation is not centra l to the Programme and cannot exceed 20% of the State’s allocation as long as el igible Unconnected Habitations in the State still exist. In Upgradation works, p riority should be given to Through Routes of the Rural Core Network, which carry more traffic (see Para 3.7 below).

6.12 It will be the responsibility of the State Government/ District Pan chayat to ensure that lands are available for taking up the proposed road works. A certificate that Land is available must accompany the proposal for each road work. It must be noted that the PMGSY does not provide funds for Land Acquisitio n. This does not however mean that acquisition cannot be done by the State Gover nment at its own cost. The State Government may also lay down guidelines for vol untary donation, exchange or other mechanisms to ensure availability of land. Th e process of making land available for the road works should sub-serve the commo n good and also be just and equitable. The details of land made available should be reflected in the local land records to avoid dispute. (cid:29)

9. A conjoint reading of paragraph-3 of the additional affidavit as indicat ed above along with its Annexures-A and B and trace map submitted by the Circle Officer, Sarthebari Revenue Circle, Barpeta would amply demonstrate that the pro posed road under PMGSY sought to be constructed under Dag No. 328 Patta No.155 i s encroaching the land, thereby, measuring 2 Kathas 3 Lechas of the petitioners’ land in WP(C) No. 910/2010 and the trace map would disclose that there exists s traight Government road under Dag No. 330 and there is no impediment for constru ction of road of upgradation over the Government land under Dag No. 330 under PM GSY.

10. I have heard learned counsel appearing for the parties at length. Peruse d the pleadings set forth by the respective parties along with the Annexures app ended thereto. In view of the materials available on record, in the considered o pinion of this Court, the writ petitioners have been able to make out a case for passing necessary order as prayed for by invoking the power of writ jurisdictio n.

11. In the result, in view of the observation and discussion made hereinabov e, both the writ petitions are allowed directing the officials of the State resp ondent Nos. 2, 3, 4 and 5 to construct road and/or upgrade the existing road ov er the existing Government road under PMGSY in Dag No 330 which is a straight ro ad and it should not encroach the patta land of the petitioners, viz. Dag No. 32 7, 328 and 335, of Patta No.155, 54 and 70 without taking recourse to clause 6. 12 of the PMGSY scheme and guidelines as indicated above. Grievances ventilated by the petitioners in both the writ petitions viz. WP(C) No. 910/2010 and WP(C) No.1187/2010 is answered accordingly. The parties are left to bear their own cos ts.