High Court
Case Details
WP(C) 1874/2005 BEFORE HON’BLE MR. JUSTICE N.KOTISWAR SINGH Heard Mr. D.Baruah, learned counsel appearing for the petitioners and also Mr. A .Gogoi, learned Govt. Advocate appearing for the [2] In the present writ petition, the petitioner is challenging the eviction notices dated 17.02.2005 and 19.02.2005 issued by the respondent No.3, the Sub-Divisional Officer, Tejpur, directing the petitioner-Company to vacate t he lands under occupation by the petitioner-Company by invoking powers under Rul e 18(2) of the Assam Land & Revenue Regulation, Settlement Rules, 1886. [3] Facts, which may be relevant for the purpose of determination of respondents. this writ petition, may be briefly stated as follows.
Legal Reasoning
The petitioner-Company had been in possession of 84 bighas 4 kat has 1 lecha of Government land under Dag Nos. 12, 239, 280, 327, 329, 330 and 33 1 and also surplus ceiling lands measuring 28 bighas, 3 kathas of land under Da g Nos. 5585, 605, 609 and 678. The respondent No.3, the Sub-Divisional Officer, Tejpur, had issued the two eviction notices under Eviction Case No.27 /1996 and Eviction Case No.28 of 1996 alleging occupation of altogether 120 bighas 4 kath as 6 lechas of Government lands and surplus ceiling lands and directing the pet itioner-Company to vacate the said lands being occupied by the petitioner-Compa ny. Thereafter, the petitioner-Company filed their objections to the said notice s dated 17.02.2005 and 19.02.2005 wherein it was submitted that petitioner-Comp any was willing to exchange lands to the extent of the lands for which the Gover nment has sought for eviction. Apparently, after filing of the said objection, eviction proceedings initiated in respect of the aforesaid Eviction Case No.27 / 1996 and Eviction Case No.28 of 1996 were not proceeded. Thereafter, the petitio ner-Company received notices from the respondent No.3 on 20.7.2002 informing the petitioner-Company that as per the latest land policy of the Govt. of Assam, th e petitioner-Company would be required to submit application for settlement of land under encroachment and if the petitioner-Company desires to have the said l ands settled in their favour, the petitioner-Company could submit application wi thin 15 days or else eviction process would be initiated. Pursuant to the aforesaid letter dated 20.7.2002, the petitioner -Company submitted application for settlement of the land measuring 36 bighas 5 lechas under Dag Nos. 585, 605, 609, 647 and 678. The aforesaid communication da ted 20.7.2002 was in respect of the ceiling land which the petitioner-Company wa s in occupation. Subsequently, the petitioner-Company again received another comm unication from the respondent No.3 on 21.5.2002 to the same effect for settlemen t of the lands under possession of the petitioner-Company in respect of Governme nt lands. In respect of the aforesaid communication dated 21.5.2002 received by the petitioner-Company, the petitioner-Company approached the authorities for ex change of land with their own lands by referring to the earlier application subm itted by the petitioner-Company for exchange of lands with their own lands in re spect of Government lands. However, there was no progress as regards the said a pplication for settlement submitted by the petitioner with respect to the ceili ng lands as well as the application for exchange in respect of Government lands under occupation of the petitioner-Company. Subsequently, the respondent No.3 by invoking the powers under Rule 18(2) of the Assam Land & Revenue Regulation, Settlement Rules, 1886, issued the eviction notices dated 17.02.2005 and 19.02. 2005 stating that the petitioner had been possessing the notified lands without permission from the Government and accordingly, directed the petitioner-Company to vacate the same. Being aggrieved by the aforesaid eviction notices dated 17.02.20 [4] 05 and 19.02.2005 (Annexure-G and H respectively), the petitioner-Company has ap proached this Court by filing the present writ petition. [5]
Decision
The State respondents have filed their affidavit-in-opposition. In the affidavit-in-opposition, the respondents have not seriously disputed the various averments made by the petitioner in the writ petition and it has been s tated that the aforesaid notices have been issued under Rule 18 of the Assam Lan d & Revenue Regulation, Settlement Rules, 1886 as the petitioner had been occ upying the Government lands without permission of the Govt. of Assam. The respo ndents have also stated in para No.11 of the affidavit-in-opposition that even t hough the writ petitioner had submitted application for settlement of the lands measuring 36 bighas 5 lechas under Dag Nos. 585, 605, 609, 647 and 678 of Villag e No.2 Barjulit T.E., no such application for settlement of lands in respect of the remaining lands measuring 84 bighas 4 kathas 1 lecha of Government land und er Dag Nos. 12, 239, 280, 380, 327, 329, 330 and 331 of village Rangapara T.E. h ad been submitted. [6] Heard the learned counsel appearing for the parties. Learned counsel appearing for the petitioner-Company has contend ed that the aforesaid summary proceedings initated under Rule 18(2) of the Assam Land & Revenue Regulation, Settlement Rules, 1886 cannot be invoked against th e petitioner-Company in view of the fact that the petitioner-Company had been in occupation of the said lands for more than 100 years which had not been dispute d by the authorities and as such, the petitioner has a prima-facie title over th e suitland by virtue of law of prescription and as such, summary proceedings cou ld not be initiated for vacation and in this regard has relied upon a judgment o f the Hon’ble Supreme Court rendered in the case of Govt. of A.P. v. Thummala K rishna Rao, (1982) 2 SCC 134. The relevant paragraphs are quoted as under:- (cid:28)7. It seems to us clear from these provisions that the summary remedy for evict ion which is provided for by Section 6 of the Act can be resorted to by the Gove rnment only against persons who are in unauthorised occupation of any land which is (cid:28)the property of the Government (cid:29). In regard to property described in sub-sec tions (1) and (2) of Section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction prov ided for in Section 6. A person who occupies a part of a public road, street, br idge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by Section 2 to be the property of the Government and, theref ore, it is in public interest to evict him expeditiously, which can only be done by resorting to the summary remedy provided by the Act. But Section 6(1) which confers the power of summary eviction on the Government limits that power to cas es in which a person is in unauthorised occupation of a land (cid:28)for which he is li able to pay assessment under Section 3 (cid:29). Section 3, in turn, refers to unauthori sed occupation of any land (cid:28)which is the property of the Government (cid:29). If there i s a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the propert y belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unques tionably a genuine dispute between the State Government and the respondents as t o whether the three plots of land were the subject-matter of acquisition proceed ings taken by the then Government of Hyderabad and whether the Osmania Universit y, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the Un iversity was dismissed on the ground of limitation, inter alia, since Nawab Habi buddin was found to have encroached on the property more than 12 years before th e date of the suit and the University was not in possession of the property at a ny time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they c annot be evicted save by the due process of law. The summary remedy prescribed b y Section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due pro cess of law for evicting the respondents. (cid:29) & & & & & & & &. & & & & & & & &.. 9. The conspectus of facts in the instant case justifies the view that the quest ion as to the title to the three plots cannot appropriately be decided in a summ ary enquiry contemplated by Sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in-title of these plots raises a genuine dispute between them and the Government on the question of title, remembering es pecially that the property, admittedly, belonged originally to the family of Naw ab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached up on that property thereafter and perfected his title by adverse possession must b e decided in a properly constituted suit. Maybe, that the Government may succeed in establishing its title to the property but, until that is done, the responde nts cannot be evicted summarily. (cid:29) Similarly, this Court in the case of Shri Kamala Kanta Das vs. T he State of Assam & ors. reported in (1983) 2 GLR 258 had also held in paras No. 11 and 13 as below:- (cid:28)11. In our opinion, before an authority takes a summary eviction proceeding it must consider whether there exists any bonafide claim of right of the possessor or the occupant. The rule-making authority itself considered that even in such l ands there might be bonafide claim of right of the possessor, and, accordingly m ade it a condition that only where there exists on bonafide claim of right the a uthority can exercise power under Rule 18(2). While serving notice, it is desira ble for the authority to consider the nature of the claim of the occupier or pos sessor, before taking summary action under Rule 18(2). In the instant case, it a ppears from the revenue records that the petitioner was in continuous possession of the land for the last 10 to 12 years and he had a tea stall. A summary enqui ry would have revealed that the petitioner was authorised to construct the stall , that the petitioner was permitted to run it by the Superintendent of Police, t hat the petitioner had constructed structures and other constructions openly. Th erefore, the petitioner had a strong claim to continue in possession and it was surely a bonafide claim of right. These apart, continuous occupation or possessi on by the petitioner and openly running a tea stall in the Verandah of the offic e without any let or hindrance by the authority for 10/12 years, rather with the ir permission which clearly show that the petitioner was a permissive occupier a nd has had possessory right. By virtue of his long possession he acquired some r ight, he paid rent, made with the permission of the authorities. All these facts show the existence of bonafide claim of right of the petitioner. Under these ci rcumstances, no action could be taken by the authorities. In the instant case, t he authorities could have taken resort to some other provisions of the law, or, should have taken resort to some other law or could have gone to the civil court and could have obtained the relief asked for. We are positive and hold that on the facts and circumstances of the case the petitioner has had bonafide claim o f right in the property and the authority had no jurisdiction to evict him under Rule 18(2) of (cid:28)the Rules. & & & & & & & & & & &. & & & & & & & & & & 13. In a summary proceeding under Rule 18, the authority is not to adjudicate an y complicated question of possessory right or title of the occupant. If it finds that there exists a semblance of claim of bonafide right, it should not proceed under Rule 18(2). While considering the bonafide claim of right, the authority should consider the duration of the occupation of the land by the occupant, the nature of the property on which the encroachment is alleged to have been committ ed and whether the claim of the occupation or possession is malafide or bonafide . When a property is occupied or possessed by a person, the authority competent to take action under Rule 18(2) should not shut its eyes to the existing facts r evealed from the records. If an occupant openly makes construction, his acts mig ht create a bonafide right, title or interest in the property. The duration of o ccupation is undoubtedly a relevant factor when the occupation is open and for a n appreciable length of time. When some right to occupy in favour of the occupan t is detected, it requires an impartible adjudication according to the establish ed procedure of law. The length of possession, the nature of the open acts of po ssession, construction of the structures and dealing the property as his own cer tainly created a bonafide right in his favour. Such cases should go to the civil court for adjudication or the authorities may take resort to the other provisio ns of law or take resort to some other law. (cid:29) [7] In the present case, according to the learned counsel appearing for the petitioner-Company, the petitioner-Company is claiming ownership of the lands by virtue of being under occupation for more than 100 years which had bee n specifically mentioned in their objection submitted by the petitioner-Company on 07.7.1997 in reply to the eviction notice dated 02.4.1996. That apart, the petitioner-Company had already submitted applica tion for settlement of the ceiling lands as well as the Government lands under o ccupation of the petitioner-Company vide application dated 7.8.2002 and subseq uently, also on 17.01.2008 pursuant to the modified policy of the Govt. of Assa m as contained in their letter No.RSS.609/98/74 dated 13.9.2006 issued by the Re venue (Settlement) Department, Govt. of Assam in which it has been provided th at Government had decided to settle Government lands being encroached by the T ea Estate of the State on realization of 100% premium subject to admissibility a nd as per rules without going into conflict with the other rules and regulations that are in existence in the State provided that such encroachment had been for the last 20 years. Learned counsel appearing for the petitioner-Company submits that even though the petitioner-Company had submitted application for settlemen t in respect of the ceiling lands, they had not yet submitted any application in respect of the Government land, in view of the earlier claim for exchange of la nd. The learned counsel appearing for the petitioner-Company submits that the pe titioner-Company may now be allowed to submit an application for settlement in t erms of the new policy decision of the Govt. of Assam as contained in the lette r dated 19.3.2006 issued by the Revenue (Settlement) Department, Govt. of Assam . Learned counsel appearing for the petitioner-Company submits that even though the said letter provides for submission of application within four months, cons idering the fact that the petitioner-Company had already submitted an applicatio n for exchange of lands with their own lands, submission of application at this stage would not cause any prejudice to anyone. [8] Since there are already applications pending before the authorit ies for settlement by way of allotment or by way of exchange of lands vis-à-vis the lands which are stated to be under encroachment of the petitioner-Company ag ainst which eviction processes have been initiated, which is under challenge in the present writ petition, this Court is of the view that till such applicatio ns for settlement or exchange of lands are decided by the authorities concerned, it will not be proper for the authorities to proceed with the eviction processe s without first considering and deciding on the issue of settlement of land unde r encroachment by the petitioner-Company. This Court is also of the view that since the petitioner-Company had already applied for settlement of the lands by way of exchange, no prejudic e would be caused to anybody in allowing the petitioner-Company to submit applic ation for allotment of land in respect of Government lands under the Company’s o ccupation and as such, the petitioner-Company may file application for settlemen t of lands under occupation by the petitioner-Company in terms of the letter dat ed 13.9.2006 issued by the Revenue (Settlement) Department, Govt. of Assam. In view of the above, this Court is of the opinion that the pres ent petition can be disposed of with a direction to the authorities concerned to consider the applications filed by the petitioner-Company for allotment of land s in respect of the ceiling lands as well as the Government lands which are und er occupation of the petitioner-Company by way of encroachment. Since the petiti oner had already submitted application for allotment of lands in respect of the ceiling land vide application dated 7.8.2002 as well as application dated 17.1. 2008, the Government may look into the said applications for settlement in accor dance with law. As regards the settlement for Government lands under occupation of the petitioner-Company, the petitioner-Company may be allowed to file a fres h application for settlement of the Government land under occupation of the peti tioner-Company within a period of one month from today in terms of the letter da ted 13.9.2006 and on receipt of the application, the authorities may dispose of the application and take appropriate consequential actions in accordance with la w. Further in view of the law laid down by the Hon’ble Supreme Cour t in Govt. of A.P. (supra) as well as by this Court in Shri Kamala Kanta Das (s upra), since the respondents have not denied the occupation of the ceiling lands and the Government lands in issue by the petitioner-Company for the last many y ears, this Court is of the view that invoking the power of summary eviction as provided under Rule 18 of the Assam Land & Revenue Regulation, Settlement Rul es, 1886 is not appropriate and accordingly, the impugned eviction notices date d 17.02.2005 and 19.02.2005 are set aside. With the above observation and direction, the present petition i s disposed of.