High Court
Case Details
WP(C) 3662/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA By means of this writ petition, the petitioners have challenged the Annexure-X e viction notice dated 19.2.2011, by which, they were directed to vacate the land described therein within 7 days. The Deputy Commissioner, Kamrup (R) has filed its counter affidavit on 6.3.2012 indicating that the petitioners have encroached upon 52 Bighas of Government lan d in Block 27 (Gha) and the eviction of the encroachers was carried out on 3.2.2 011. In the said counter affidavit detailing the facts, it has been stated thus: (cid:28)5. That with regard to the statements made in paragraph-11 of the writ petition , the deponent states that the eviction of 52 bighas of land in Block No. 27 (Gh a) at Jaljali Khoala reserve was carried out on the basis of order by the Deputy Commissioner, Kamrup in Encroachment Case No. Nagabera/Encro-1/2010 (Annexure-1 ). In the order of the Addl. Deputy Commissioner, Kamrup stated that Sri Hukum A li, S/o Lt. Kalu Seikh and 28 others have encroached upon 52 bighas of land in B lock 27 (Gha) and directed the Circle Officer, Nagarbera to serve the eviction n otice (Annexure-2) that he had issued under Section 18(2) of the ALRR, 1886 and carry out eviction if the encroachers do not leave the land. The encroachers at first refused to accept the notice as per the report of the Process Server of Na garbera Revenue Circle Sri Upen Langthasa dated 4.3.2010 (Annexure-3). Then the Circle Officer next directed the Process Server to serve the notice with the hel p of the local Gaon Burah Sri Habibur Rahman on 20.3.2010 (Annexure-4). On 6.4.2 010 the concerned Lot Mandal reported that the encroachers were still cultivatin g the said 52 bighas of land inspite of the fact that the notice for eviction wa s served on 20.3.2010 (Annexure-5). After satisfying himself that the eviction n otice were served and that the encroachers has failed to act on the notice, the Circle Officer decided to proceed with the eviction of the 29 encroachers . So h e fixed 29.4.2010 as the date for eviction of the 52 bighas of land vide No. NBC .10/98/310 dated 17.4.2010 addressed to the Deputy Commissioner, Kamrup (Land Se ttlement Branch) and also requested for Rs. 2000/- as cost of eviction (Annexure -6). Again vide letter No. NBC.10/98/540 dated 14.6.2010 the Circle Officer info rmed the Deputy Commissioner, Kamrup that due to the flood situation the evictio n could not be carried for the time being (Annexure-7). The present Circle Offic er, Nagarbera vide letter No. NBC.10/98/Part/966 dated 22.11.2010 requested the Deputy Commissioner, Kamrup (Land Settlement Branch) to release the amount of Rs . 2000/- for completion of the eviction process as notice for eviction have alre ady been served (Annexure-8). After receipt of the amount, the eviction was carr ied out on 3.2.2011. The eviction was carried out only on the 52 bighas of land in Block 27 (Gha) as specified in the order of the Addl. Deputy Commissioner, Kamrup dated 22.2.2010 in Encroachment Case No. Nagarbera/Encro-1/2010 and not in the 43 ‰ bigha of lnd in Block-27 (Ga) already entitled to the petitioner and 28 others vide the Depu ty Commissioner’s order No. KRS.702/2002/67(A) dated 7.3.2007. The area evicted is shown as 27 (Gha) in the trace map (Annexure-9) submitted during the filing o f the encroachment case by the Circle Officer, Nagarbera vide letter No. NBC.10/ 89/81 dated 15.2.2010, where the Block-27 (Ga) was also shown separately. Thus t he eviction was carried out as per established procedure of law and after notice was served on the encroachers. On the day of eviction, it was found that there was cultivation of mustard on th e encroached land. From local enquiry it was ascertained that the mustard were c ultivated well after the notices were served and in defiance of the eviction ord er. Hence the Circle Officer found it appropriate to auction the cultivated crop as per established procedure of aw. Five bidders took part in the bidding proce ss and after 2 rounds of bidding the crop was auctioned to Esa Haque for an amou nt of Rs. 26,000/- only. The amount was deposited at the office of the Deputy Co mmissioner vide letter No. NBC.10/98/Part/167 dated 24.2.2011 (Annexure-10).
Decision
6. That with regard to the statements made in paragraph-12 of the writ petition, the deponent states that on the day of eviction i.e. 3.2.2010 it was discovered that there was a dwelling house within the 52 bighas of land whose eviction was carried out. The owner of the dwelling house was Sri Mortuz Ali, S/o Jabar Ali. He was not on the list of encroachers against whom notices were served. Hence, the eviction of the dwelling house was not carried out. He was verbally asked to remove his dwelling house within 7 days. When he failed to remove his dwelling house within the stipulated time the eviction notice dated 19.2.2011 was served (Annexure-11). It may be pointed out that neither Mortuz Ali nor his father is a petitioner or one of the 28 co-allottees with Hukum Ali. No order for removal o f dwelling house was issued against any of the petitioners or co-allottees of Hu kum Ali. Hence the allegation of serving notices to the petiitoenrs for removal of dwelling houses is totally false. 7. That with regard to the statements made in paragraph-13 of the writ petition, the deponent states that on receipt of the representation dated 16.2.2011 and 2 1.2.2011 the same was sent to Circle Officer, Nagarbera vide letter No. NBC.5/93 /592 dated 30.8.2011. It is seen that the representation dated 21.2.2011 is yet to be received by the Circle Officer, Nagarbera and on receipt of the representa tion dated 16.2.2011 from the petitioners, the Circle Officer, Nagarbera asked c oncerned Lot Mandal for report. In the report concerned Lot Mandal reported that the eviction was carried out specifically in the area earmarked for allotment t o Maidan Ali and others. The eviction did not transgression on the settled land of Hukum Ali & Others. The same was clearly informed to the petitioners when the y meet the Circle Officer, Nagarbera in his office to enquire about their repres entation. As per Receipt Register of Nagarbera Revenue Circle there is no record of having received the petition dated 21.2.2011. The Circle Officer, Nagarbera also does not recollect having received such a petition. On perusal of the petition dated 21.2.2011 as enclosed with the writ petition, it is seen that it is similar in c ontent to that of the petition dated 16.2.2011 (Annexure-12) Action of the petit ion dated 16.2.2011 was already taken, as stated above. (cid:29) From the above, what is seen is that the petitioners encroached upon 52 bighas o f Government land in Block-27 (Gha) and eviction was carried out on 3.2.2011. Th e stand in the counter affidavit filed on 7.2.2012 has not been denied by the pe titioner by filing any reply affidavit. In view of the above, I do not find any merit in the writ petition and according ly it is dismissed.