High Court
Case Details
WP(C) 6995/2004 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI Heard Mr. AC Sarma, learned counsel for the petitioners. Also heard Ms. B Choudh ury, learned counsel appearing for the private respondents. Mr. Sheikh Noor Moha mmed, learned State counsel is also heard. The challenge made in this writ petition is against an order dated 02.08.2004 (A nnexure-VIII) passed by the learned Deputy Commissioner, Sivasagar in pursuance of an order dated 13.05.2004 passed by the learned Assam Board of Revenue in Cas e No. 18 RA(S)/02. By the said order, periodic patta No. 140 of Rupahi Pathar G aon was restored in the name of Rupahi Pathar Krishi Pam Samabai Samity, respond ent No. 5, in respect of 75B 3K 3LS of the land of Dag No. 725. Mr. Sarma submits that Case No. 18 RA(S)/02 was filed by the appellants therein, who are the private respondents in this writ petition, against the eviction not ices issued by the learned Additional Deputy Commissioner, Sivasagar in Encroach ment Case No. 15/01-02 and accordingly, prayer was also made in the appeal limit ed to setting aside of the said notices. In view of the above, directions of the learned Assam Board of Revenue to settle the land with the appellants of 18 RA( S)/02 or to restore the names of the appellants in the patta, is clearly not per missible in law, he submits.
Legal Reasoning
It is also submitted by him that the petitioners are in possession of the land in question. The petitioners had also preferred an appeal being Case No. 90 RA(S )/01 before the learned Assam Board of Revenue against the eviction notices issu ed to the petitioners in Encroachment Case No. 15/01-02 and the learned Assam Bo ard of Revenue, by a separate order dated 13.05.2004, had disposed of the said a ppeal remanding the matter to the learned Deputy Commissioner, Sivasagar, and ti ll date, no order has been passed by the learned Deputy Commissioner, Sivasagar. Ms. B Choudhury, learned counsel for the private respondents submits that the or der dated 13.05.2004 passed in Case No. 18 RA(S)/02 as well as the order dated 0 2.08.2004 passed by the learned Deputy Commissioner, Sivasagar, were the subject matter of challenge in WP(C) No. 4743/05 and this Court, by an order dated 13.0 3.2013, had dismissed the writ petition. She submits that though the said writ p etition was not filed by the present petitioners, as the validity and legality o f the order dated 02.08.2004 was considered and upheld by this Court, there is n o merit in this application. Ms. Choudhury has also submitted that there is no averment in the writ petition stating that the learned Deputy Commissioner, Sivasagar did not make any enquiry pursuant to the order of the learned Assam Board of Revenue dated 13.05.2004 pa ssed in Case No. 90 RA(S)/01. I have heard the learned counsel for the parties and have perused the materials on record. The records of WP(C) No. 4743/05 has also been placed alongwith the records of W P(C) No. 6995/04. The following is the order passed by this Court on 13.03.2013 in WP(C) 4743/05: (cid:28)The petitioner is aggrieved by the judgment dated 13.05.2004 passed by the Assa m Board of Revenue, Guwahati in Case No. 18 RA(S)/2002, by which the matter rela ting to settlement of land in favour of Rupahi Pathar Krishi Pam Samabay Samity was remanded back to the Deputy Commissioner, Sivasagar for re-examination of th e claim of the appellant, share holders of the said Samabay Samity. Pursuant to the said direction, the Deputy Commissioenr, Sivasagar passed the Annexure-III o rder dated 02.08.2004 allotting the particular land in favour of the petitioner Samabay Samity. The distribution of land was also made in favour of some other o rganizations including the land for the approach road. According to the petitioner, the said two orders have been passed behind his bac k and accordingly he was not aware of the same. It is his case that he is in pos session of over 5 bighas of land. It was only when he was sought to be evicted, he came to know that the said land has been allotted to the Samabay Samity. On p erusal of the materials on record, it appears that the Samabay Samity was regist ered way back in 1955 and they have been enjoying 133 bighas 2K 11 Lessas of lan d covered by Dag No 760 in A.P. No. 126. The dispute was relating to the said la
Decision
nd. If the petitioner is in occupation of part of the said land, he cannot claim that the same should be allotted to him to the deprivation of the Samabay Samit y. Moreover, the matter having attained finality cannot be re-opened at the inst ance of the petitioner. During the pendency of the writ petition, MC No. 909/2006 was filed praying for a direction for restraining the respondent No. 5 i.e. the Samabay Samity from en tering into the land of the petitioner. The said MC was dismissed. In view of the above, the writ petition is dismissed. Interim order passed on 01 .07.2005 stands vacated. (cid:29) The petitioners have not challenged in this proceeding the order dated 13.05.200 4 passed by the learned Board of Revenue in Case No. 18 RA(S)/02. The learned Assam Board of Revenue in Case No. 90 RA(S)/01 held as follows: (cid:28)Record revealed that land was converted as sarkari on 07.02.2000 from the name of Secretary Rupahi Pathar Krishipam Samabai Samity and altogether 54 notice was issued against the encroacher of the land including the appellant. So there is no basis of allegation by the appellant that there is a conspiracy between the D eputy commissioner and Rupahi Pathar Samabai Samity for evicting the appellant a nd to get mutated the land in the name of Rupahi Pathar Samabai Samity. On the o ther hand record also revealed that appellant are formerly encroachers of the la nd allotted to Rupahi Pathar Krishipam Samabai Samity and lastly encroachers of the Govt. land without permission from authority concerned. In their appeal petition though appellant stated them as a member of Hatikhoh Ma tihin Krishak Samabaye, but they failed to produce any document of registration, Govt. reorganisation for the society or permission to enjoy possession of the l and. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & From these land revenue paying receipts it is revealed that appellant paid the l and revenue in different year by different name. Society status of which still not recognised by any authority concern, appellant fail to produce any doc ument of registration/ reorganisation in the name of 1. Hatikhosh Bhumihin Sama bai 2. Hatikhosh Matihin Krishak. 3. Rupahi Pathar Krishi Karjya. There is no an y report or relating document in the original record of the Encroachment case No . Enc.15/2001-2002. So it is a question of doubt how the revenue collecting staf f/Mouzadar received revenue in the name society which has no legal entity at all . It is malpractice by the revenue staff of the respective Mouza, for which the Deputy Commissioner should take action against the person and remind them about their limitation of collecting revenue. Govt. advocate plead that as the appella nt is in possession of the Govt. land without permission from the authority conc erning, so they are encroachers in the eye of law. Moreover the land so which re venue shown (photostat copy) as paid is not allowed to them till date. So paying land revenue by them is nothing but a encroachment fine without any status upon the land so they cannot claim benefit of paying revenue. (cid:29) [Extracted from the typed copy of the order annexed by the petitioners]. This order was not challenged by the petitioners before any forum. There is no categorical averment in the writ petition that the enquiry contempl ated in terms of the order dated 13.05.2004 in Case No. 90 RA(S)/01 was not cond ucted by the learned Deputy Commissioner, Sivasagar. The only averment made in t his connection is to be found in para 19 wherein it is stated that the learned D eputy Commissioner acted illegally and with material irregularly in restoring th e name of respondent No. 5 in the patta in as much as the learned Assam Board of revenue, while disposing of RA.90(S)/2001, directed the learned Deputy Commissi oner, Sivasagar to hear Encroachment Case No. 15/2001 while disposing the case o f the writ petitioners. Be that as it may, as this Court had upheld the order dated 02.08.2004 in WP(C) No. 4743/05, which order is also under challenge in this writ petition, this wri t petition is also liable to be dismissed. Accordingly, the writ petition is dismissed. No cost.