THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM AND

ARUNACHAL PRADESH) WP(C) No. 530 OF 2011

SMT. JEEWAN MADHURI NEOG BORA, W/O. LATE ATUL CHANDRA BORA, R/O. AJALI TORA, BEAUTY PUBLICATION BUILDING, BHANGAGARH, GUWAHATI – 5, DIST : KAMRUP (M), ASSAM.

………… Petitioner -Versus-

1. THE STATE OF ASSAM, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, REVENUE & DISASTER MANAGEMENT DEPARTMENT, DISPUR, GUWAHATI – 6. 2. THE SECRETARY TO THE GOVT. OF ASSAM, REVENUE (S) DEPARTMENT, REVENUE BRANCH, DISPUR, GUWAHATI – 6. 3. THE DEPUTY COMMISSIONER, KAMRUP (M), GUWAHATI. 4. THE RESETTLEMENT OFFICER, OFFICE OF THE RESETTLEMENT, GUWAHATI, KAMRUP. 5. SHRI DEVA KANTA SAIKIA, @ DEVA KUMAR SAIKIA, ADVOCATE, S/O. SHRI PURNA KANTA SAIKIA, R/O. BORBARI, UPPER HENGRABARI, VIP ROAD, P.S : DISPUR, GUWAHATI – 36, KAMRUP (M), ASSAM. 6 (a). SMTI. ZIMI SAIKIA, W/O. LATE HEM KANTA SAIKIA. 6 (b). SRI MOHIT CHANDRA SAIKIA, S/O. LATE PURNA KANTA SAIKIA. 6 (c). SMTI. DIPALI SAIKIA, W/O. LATE HOMESWAR SAIKIA. 6 (d). SRI TARUN CHANDRA SAIKIA, W/O. LATE PURNA KANTA SAIKIA. NOS. 6 (a) TO 6 (d) ARE RESIDENTS OF VILLAGE – ALENGISATRA, P.O. SENCHOWA, DIST – NAGAON, ASSAM. 6 (e). SMTI. RITUMONI SAIKIA, W/O. LATE ANIL SAIKIA. R/O. BORBARI, VIP ROAD, GUWAHATI,

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DISTRICT – KAMRUP (M), ASSAM. 7. SHRI ANIL SAIKIA, S/O. LATE PURNA KANTA SAIKIA, R/O. BORBARI, UPPER HENGRABARI, VIP ROAD, PS : DISPUR, GUWAHATI – 36, KAMRUP (M), ASSAM. 8. SHRI RAMESH BARUAH, S/O. BAPUKAN BARUAH, R/O. BORBARI, UPPER HENGRABARI, VIP ROAD, PS : DISPUR, GUWAHATI – 36, KAMRUP (M), ASSAM. 9. THE SENIOR SUPERINTENDENT OF POLICE, DISPUR, GUWAHATI. 10. THE OFFICER-IN-CHARGE, DISPUR POLICE STATION. ….…… Respondents

For the Petitioner : Mr. BD Das, Sr. Advocate.

Mr. HK Sarma, Advocate. Mr. D Nath, Advocate.

For the Respondents : Mr. RP Sarmah, Sr. Advocate.

Mr. PK Deka, Advocate. Mr. RK Bora, Govt. Advocate, Assam.

BEFORE

THE HON’BLE MR. JUSTICE UJJAL BHUYAN

Dates of Hearing : 01.10.2013. Date of Judgment : 31.03.2014.

Judgment & Order (CAV)

This writ proceeding portrays a disturbing picture. Petitioner is

the widow of a legal professional, who at one point of time adorned the office

of Addl. Advocate General of the State. Petitioner claims that the contesting

respondent i.e., respondent No. 5 was a former junior of her late husband.

Her allegation against respondent No.5 is that he has encroached upon and

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taken over the adjacent plot of land allotted to her and her late husband by

the Govt. while he was asked to look after the property. If such an allegation

of the widow of the senior against a former junior is not enough, the manner

in which the litigation on behalf of the petitioner has been conducted has

further compounded the issue. A larger issue of considerable public interest

had also surfaced during the hearing of the case which has drawn the

attention of the Court. The issue is allotment/settlement of land to individuals

by the Govt. in Greater Guwahati and other towns of the State.

02. Having said what had to be said, I now first proceed to deal with

the grievance raised by the petitioner.

03. Case of the petitioner is that her late husband was a practicing

lawyer of the Gauhati High Court and a designated Senior at that time. He

was also the Addl. Advocate General of Assam. Respondent No. 5 was one of

his juniors.

04. Petitioner and her husband made an application before the

Government for allotment of land. Vide letter bearing No. RSS.878/90/15,

dated 24.07.1992, issued by the Deputy Secretary to the Govt. of Assam,

Revenue (S) Department, 1 katha 10 lechas of Sarkari land covered by dag

No. 192 of village No. 1 Hengrabari N.C. under Beltola Mouza within Guwahati

city was settled in the name of the petitioner and her husband for residential

purpose subject to payment of 60% land value as premium. The land value

was fixed at Rs. 20,000.00 per katha. On 19.03.1993 possession of the said

land was handed over to the petitioner’s husband by the Circle Officer, Dispur

Revenue Circle, Guwahati.

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05. Respondent No. 5 had also filed an application along with the

petitioner and her husband for settlement of land. By letter, also dated

24.07.1992, issued by the Deputy Secretary to the Govt. of Assam, Revenue

(S) Department, 1 katha 10 lechas of Sarkari land covered by dag No. 192 of

village No. 1, Hengrabari under Beltola Mouza was settled with the

respondent No. 5 and his wife at the same price.

06. According to the petitioner, both the plots of land are adjacent.

Petitioner’s husband developed his land and constructed the boundary

fencing. He also constructed one temporary shed on his land and since then,

they have been possessing the land. Respondent No. 5 constructed a house

on his adjacent plot of land and he has been living there since then. Being

adjacent land holder, on being requested by petitioner’s husband, respondent

No. 5 was also looking after the land of the petitioner.

07. Husband of the petitioner died on 31.01.1999. At the time of his

death, petitioner and her husband were living in a rented house at

Jorpukhuri, Uzanbazar, Guwahati. After recovering from her bereavement,

petitioner went to inspect the land and also to repair the temporary shed on

23.04.2004. When she reached her plot of land, respondent No. 5 along with

some of his associates resisted the petitioner claiming that the land belongs

to him. Petitioner noticed that her land has been encroached upon by the

respondent No. 5 by removing the boundary fencing on the northern side and

by blocking the entrance to her land.

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08. Petitioner then filed Title Suit No.219/2004 in the Court of

Munsiff No. 1 at Guwahati. The suit was instituted for declaration of her right,

title and interest over the said land and also for recovery of possession.

Respondent No. 5 contested the suit by filing written statement contending

that petitioner had given wrong description of her land, which was, in fact,

allotted to the father of respondent No. 5 by the Govt. on 25.10.2000.

Respondent No. 6 (Purna Kanta Saikia) was the father of respondent No. 5,

who has since expired and has been substituted by his other legal heirs. He

had also filed written statement in the suit claiming that the land belonged to

him as per Govt. allotment.

09. In the course of the civil suit, the trial court called for a report

from the revenue authorities for identification of the suit land. According to

the petitioner, respondent No. 4 submitted report dated 08.08.2008 changing

the trace map of the area. Land which was allotted to the petitioner and her

husband was shown as land belonging to respondent No. 6 (Purna Kanta

Saikia).

10. Petitioner then filed representations dated 10.07.2010 and

24.11.2010 before the Principal Secretary to the Govt. of Assam, Revenue

Department, Secretary of the said Department and the Deputy Commissioner,

Kamrup (M) for cancellation of the settlement of land made in favour of

respondent No. 6 (Purna Kanta Saikia) and to restore her possession over the

land which was settled with her and her husband.

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11. As no decision has been taken, the present writ petition has been

filed for quashing of settlement of land in favour of respondent No.6 and for

a direction to the respondents to hand over possession of the land to the

petitioner as per settlement order dated 24.07.1992. Further prayer made is

for quashing of report dated 08.08.2008.

12. Respondent No. 3 has filed an affidavit. It is stated that as per

record a plot of land measuring 1 katha 10 lechas (4.01 Are) covered by dag

No.192/237 of No. 1 Hengrabari village under Beltola Mouza was settled in

the name of respondent No. 5 and the said settlement is continuing in his

name. Another plot of land measuring 1 katha 10 lechas (4.01 Are) covered

by dag No. 192/238 of village No. 1 Hengrabari under Beltola Mouza was

settled with the petitioner and her husband and the said settlement is

continuing. Further, a plot of land measuring 1 katha (2.68 Are) covered by

dag No.192/318 in the same area was settled in the name of respondent

No.6 (Purna Kanta Saikia) and the said settlement is continuing. During

resettlement operation, the dag numbers have been changed. A detailed

inquiry was conducted on the grievance expressed by the petitioner. As per

inquiry report, major portion of the land in the name of petitioner and her

husband is occupied by respondent No. 5 and the rest are occupied by two

persons, namely Sri Anil Saikia and Sri Ramesh Baruah. Paragraph 7 of the

said affidavit reads as under: -

“That with regard to the statements made in

paragraph 6 of the writ petition, the deponent reiterating the

statements made in paragraph 5 of the instant affidavit-in-

opposition begs to state that as per the available records a

plot of land measuring 1 K 10 Lechas (4.01 Are) covered by

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Dag No. 192/237 of No. 1 Hengerabari Village under Beltola

Mouza was settled in the name of Sri Deva Kanta Saikia,

respondent No. 5 and the said settlement is continuing in

his name. Another plot of land of 1 K 10 Lechas (4.01 Are)

covered by Dag No. 192/238 of Village No. 1 Hengrabari

under Beltola Mouza was settled in the name of Atul Ch.

Bora i.e. husband of the petitioner and the said settlement

is continuing in his name. Another plot of land of 1 Katha

(2.68 Are) covered by Dag No. 192/318 was settled in the

name of Purna Kanta Saikia, and the said settlement is

continuing in his name as per the records which are created

from the original Dag No. 192 (old). During the resettlement

operation, the Dag No. 192/237 has been converted to new

Dag No. 899, 192/238 to another new Dag No. 896 and

Dag No. 192/318 to new Dag No. 895. It is stated that out

of total land of 321 Bigha 4 Katha 0 Lechas (4304.98 Ares)

covered by Dag No.192 (old) of the Village No. 1 Hengrabari

under Beltola Mouza, 1 Bigha 4 Katha 18 Lechas (26.48

Are) is presently recorded as Periodic Patta Land and the

remaining part of 319 Bigha 4 Katha 2 Lechas (4278.50

Are) are still recorded as Government Land in the revenue

record.

A detailed enquiry was conducted in response to the

grievance of the petitioner. The Circle Officer, Dispur

Revenue Circle, Dispur vide his letter bearing No. Dist-

19/2011/5564, dated 22.11.2011 communicated the

findings of the enquiry enclosing the Lat Mandal report

dated 22.11.2011 enclosing the copies of the Chitha,

Jamabandi and the Trace Map.

From the aforesaid letter of the Circle Officer, Dispur

Revenue Circle dated 22.11.2011 and the report of the Lat

Mandal dated 22.11.2011, it could be ascertained that, No.

1 Hengerabari Village under Beltola Mouza, land measuring

4.01 Are covered by Dag No. 899 of KP Patta No. 106 is

recorded in the name of Sri Debakanta Saikia, son of Purna

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Kanta Saikia, land measuring 2.68 Are covered by Dag No.

895 of KP Patta No.157 is recorded in the name of Purna

Kanta Saikia, son of Late Belaram and land measuring 4.01

Are covered by Dag No.896 of KP Patta No. 16 is recorded in

the name of Sri Atul Bora, son of Motiram Bora. It was

further noted that land measuring 4.01 Are covered by Dag

No.899 of KP Patta No.106; land measuring 2.68 Are

covered by Dag No. 895 of KP Patta No. 157 and land

measuring 3.29 Are covered by Dag No.896 of KP Patta

No.16, all total a plot of land measuring 11.26 Are in the

Revenue Village-Hengerabari under Mouza-Beltola is found

to be in the possession of Sri Debakanta Saikia, son of

Purna Kanta Saikia. Further land measuring 0.40 Are

covered by Dag No. 896 of KP Patta No.16; land measuring

2.16 Are covered by Dag No. 898 (Govt. land) and land

measuring 0.78 Are covered by Dag No. 897 of KP Patta

No.219, a total plot of land measuring 3.34 Are is in the

possession of Sri Anil Saikia, son of Late Purna Saikia.

Further, 0.32 Are covered by Dag No. 896 of KP Patta No.

16; 0.96 Are covered by Dag No. 898 (Government land) and

1.24 Are covered by Dag No.897 of KP Patta No. 219, a total

plot of land measuring 2.52 Are is in the possession of Sri

Ramesh Baruah, son of Bapukan Baruah.

As per the enquiry report major portion of land in the

name of Sri Atul Borah (3.29 Are) is occupied by Sri

Debakanta Saikia and the rest are occupied by Sri Anil

Saikia and Sri Ramesh Baruah.

It, thus, appears that the land measuring 4.01 Are

i.e. 01 Katha 10 Lechas covered by Dag No.192 (old)/238

(old)/896 (new) of KP Patta No. 16 and standing in the

name of Atul Bora, son of Motiram Bora are in occupation of

the following 3 (three) persons in the following manner –

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Sl. No. Name Area of land belonging to Atul Bora under their possession

1. Sri Debakanta Saikia S/o. Purna Kanta Saikia

3.29 Are

2. Sri Anil Saikia

S/o. Purna Kanta Saikia 0.40 Are

3. Sri Ramesh Baruah

S/o. Bapukan Baruah 0.32 Are

Total 4.01 Are

”

13. Respondent No. 5 has filed two affidavits, one in response to the

writ petition and the other in response to the affidavit of respondent No. 3. In

the counter affidavit to the writ petition, stand taken is that petitioner has

raised disputed questions of fact, which may not be gone into in a writ

proceeding. Moreover, petitioner had already availed her remedy by

instituting civil suit. Reliefs claimed in the writ petition are matters of

adjudication by the Civil Court. Thus, writ petition is not maintainable. On

merit, it is stated that land was settled with Purna Kanta Saikia in the year

2000, whereafter he was put into possession. Respondent No. 5 has also

denied that he was a junior of petitioner’s husband, though he has admitted

to have conducted several cases jointly. Land which was allotted to the

petitioner and her husband is located about 75 feet away from the side of the

Narengi-Khanapara Road (now called VIP road). The said land is now under

possession of one Sri Ramesh Baruah (respondent No. 8). Respondent No. 8

was put in possession over the land by petitioner’s husband as caretaker.

Petitioner is not a landless lady. She has several plots of land in and around

Guwahati. Therefore, writ petition should be dismissed.

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14. In the affidavit filed against the affidavit of respondent No. 3,

respondent No. 5 has stated that the report relied upon by respondent No.3

does not reflect the correct position. No on spot enquiry was conducted,

which was prepared only on verification of papers in the office. This report is

in conflict with the report submitted before the Civil Court and, therefore, it

should not be relied upon.

15. Additional affidavit has been filed by the petitioner stating that

petitioner had filed Petition No. 283/2011 on 22.02.2011 before the Court of

Munsiff No. 4, Kamrup for withdrawal of TS No. 219/2004. However, the suit

was dismissed on 11.04.2012 for non-appearance of both the parties.

Thereafter, petitioner did not pursue the matter as she had already given up

the civil suit by filing the aforesaid petition. After receipt of the affidavit-in-

opposition filed by the respondent No. 3, petitioner has filed a complaint

before the Senior Superintendent of Police, Guwahati on 14.06.2012 alleging

land grabbing of her land by the respondent No. 5 and the others.

16. Other respondents have not filed affidavit.

17. Heard Mr. BD Das, learned Senior Counsel for the petitioner, Mr.

RP Sarmah, learned Senior Counsel for respondent No. 5 and Mr. PK Deka,

learned counsel appearing for respondent No. 6. Also heard Mr. RK Bora,

learned Govt. Advocate, Assam.

18. Mr. Das, learned Senior Counsel for the petitioner submits that

as per the Land Policy, 1989 of the Government, respondent No. 6 could not

have been settled with Govt. land, as he did not fulfill the criteria for such

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settlement. Since his son i.e., respondent No. 5 had been settled with land,

he (respondent No. 6) could not have been given further land settlement in

terms of the said land policy. Settlement of land in favour of respondent No.6

should therefore, be set aside and quashed. He further submits that in view

of the stand taken by respondent No. 3 in his affidavit, the State should now

ensure that the possession of the land which was settled with the petitioner

as per settlement order dated 24.07.1992, which has neither been cancelled

nor modified till date, should be restored to the petitioner by clearing all

encroachments.

19. Both Mr. Sarmah, learned Senior Counsel and Mr. Deka, learned

counsel appearing for the contesting respondents have vehemently argued on

the maintainability aspect. They submit that the writ petition not only raises

disputed questions of fact, which is eminently within the domain of the civil

court, but alternative remedy, which is both adequate and efficacious, is

available for adjudication of such dispute. In a case where the basic facts are

disputed and complicated factual issues depending on evidence are involved,

the writ court is not the proper forum. As a matter of fact, the petitioner

herself had availed her legal remedy for adjudication of such disputed

questions of fact by filing a civil suit. Therefore, she could not have filed the

present writ petition without withdrawing the civil suit, which, in any case,

has now been dismissed for default. Since petitioner’s suit has been

dismissed, she is barred from pursuing the present writ petition as the issue

raised in the writ petition is substantially same as the issue that was raised in

the civil suit. Mr. Deka further submits that after the civil suit was dismissed

for default, petitioner had filed an application for recall of the dismissal order

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to enable withdrawal of the suit with liberty to institute fresh proceeding.

That application was also dismissed as being time barred as no condonation

petition was filed. Thereafter, a fresh application has been filed along with a

condonation petition. On merit also, they have argued that there is no

encroachment either by respondent No. 5 or by respondent No. 6 over the

land of the petitioner, which was proved by the report dated 08.08.2008

submitted before the trial court. Petitioner cannot challenge the report dated

08.08.2008 as the same was submitted to the civil court on its order.

Petitioner had the liberty to question the said report but failed to do so. She

is, therefore, stopped from doing so in the present proceeding.

20. In his reply, Mr. Das, learned Senior Counsel for the petitioner

submits that when the petitioner has filed the writ petition, it shows that

petitioner has abandoned the civil suit. In any case, petitioner has questioned

the settlement of land with respondent No. 6, which has enabled respondent

No.5 being the son of respondent No. 6 to grab the land of the petitioner,

which was not the subject matter of the civil suit. Such settlement being in

contravention of the land policy, is liable to be interfered with by this Court.

Further, petitioner wants effective implementation of the settlement order

dated 24.07.1992. He, therefore, submits that writ petition is not only

maintainable but petitioner is entitled to the reliefs as sought for.

21. Submissions made have been considered. I have also perused

the materials on record.

WPC No. 530/2011 Page 13 of 27

22. Before proceeding further, reliefs sought for by the petitioner in

the present writ proceeding may, first, be noticed. The prayer portion of the

writ petition reads as under: -

“In the premises aforesaid, it is most respectfully

prayed that Your Lordships would be pleased to admit

this petition and issue a Rule calling upon the

respondents to show cause as to why the allotment of

the land in favour of the respondent No.6 vide

allotment order dated 25.10.2000 and possession

certificate dated 19.02.01 (at Annexure-8) handing

over land in favour of the respondent No. 6 shall not

be set aside and quashed and why the report dated

08.08.2008 (at Annexure-11) shall not be set aside

and quashed and why the respondent authorities

shall not be directed to hand over the possession of

the petitioner’s land as per allotment order dated

24.07.1992 (at Anneure-1) and Trace Map (at

Annexure-3) and after return of the Rule and after

hearing the parties be further be pleased to make the

Rule absolute by giving full and complete relief to the

petitioner and/or pass such order or further

order/orders as your Honour may deem fit and proper

in the facts and circumstances of the case”.

23. Thus petitioner seeks quashing of land settlement dated

25.10.2000 in favour of respondent No. 6 (Purna Kanta Saikia) and the

possession of the said respondent over the land allotted to him as per the

above settlement order vide the possession certificate dated 19.02.2001. The

second prayer of the petitioner is for quashing of the report dated 08.08.2008

(Annexure-II to the writ petition), which was submitted by the Settlement

Officer, Guwahati before the Munsiff No. 4, Kamrup in connection with TS

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No.219/2004. The final prayer made in the writ petition is for a direction to

the respondents to hand over possession of the land to the petitioner as per

allotment order dated 24.07.1992 and as per the Trace Map (Annexure-3).

24. Before deliberating on the reliefs claimed by the petitioner, it

would be apposite to see how the parties to the lis i.e., the petitioner,

respondent No. 5 and respondent No. 6 have been settled with land by the

Government.

25. It is not disputed that all the three parties named above, were

settled with their respective plots of land as per Land Policy, 1989 framed by

the Govt. of Assam and notified vide notification No.RSS.359/88/23, dated 13

July, 1989. Clause 14 of the said Land Policy is relevant for the purpose of

the present case. It deals with settlement and reservation of land in towns.

Clause 14.1 says that no land within municipal corporation or any town

constituted under the Assam Municipal Act, 1956 shall be settled for

agricultural purpose and Clause 14.2 limits the area of land to be settled per

family for homestead purpose. Clause 14.3 specifically deals with settlement

of land within Greater Guwahati and other towns. This aspect of the matter

will be dealt with more in detail in the latter part of the judgment. For the

present, suffice it to say that as per the said provision, land within Greater

Guwahati and any other town may be settled on payment of due premium

with the indigenous persons of the State in order of preference mentioned

therein. Various situations have been enumerated therein which would entitle

an indigenous person of the State to settlement of land by the Government

WPC No. 530/2011 Page 15 of 27

within Greater Guwahati or any other town subject to fulfillment of the

conditions mentioned therein.

26. All the three parties have been settled with land by the Govt. as

per the provisions contained in Clause 14 of the Land Policy. As a matter of

fact, both petitioner and respondent No. 5 were settled with land by the Govt.

on the same day i.e., 24.07.1992. Respondent No. 6 (Purna Kanta Saikia),

father of respondent No. 5 was allotted similar plot of land in the vicinity of

the lands settled with petitioner and respondent No. 5 on the same terms and

conditions. This settlement was made in the year 2000, to be precise on

25.10.2000. Challenge to the said settlement has been made by filing the

present writ petition in the year 2011 i.e., after a period of 11 years. Nothing

has been stated by the petitioner explaining the delay in instituting the

challenge. In fact, as per the own statement of the petitioner, when she filed

TS No.219/2004, respondent No. 5 filed written statement stating that land

claimed by the petitioner actually belongs to his father (respondent No.6),

which was allotted to him by the Govt. on 25.10.2000. Respondent No.6 also

filed his written statement in the suit, where also, he stated about settlement

of land with him by the Govt. These written statements, it appears, were filed

in the years 2004 and 2006 respectively. Even if it is accepted that the

petitioner came to know about settlement of land with respondent No. 6 after

filing of the written statements, still then there is substantial delay of seven

years in filing the writ petition. This delay has remained unexplained. In the

meanwhile, respondent No. 6 expired on 11.11.2008 and he has now been

substituted by his legal heirs. For the delay in instituting the challenge, which

has remained unexplained, this Court is not inclined to examine the same.

WPC No. 530/2011 Page 16 of 27

Moreover, petitioner is herself a beneficiary of land settlement as per the

Land Policy under which respondent Nos. 5 & 6 had also been favoured with

settlement of land by the Government. When the Land Policy, more

particularly Clause 14 thereof, which pertains to settlement of land within

Greater Guwahati and other towns by the Government is itself questionable

(which has been separately dealt with in the latter part of the judgment), this

Court is not inclined to entertain the belated challenge, that too at the

instance of the petitioner who is herself a beneficiary of such largesse.

27. Coming to the second relief sought for by the petitioner, namely,

quashing of the report dated 08.08.2008 issued by the Settlement Officer,

Guwahati (Annexure-II), it is seen that the said report was submitted to the

Civil Court as per order of the Court in TS No.219/2004 instituted by the

petitioner herself. The said report allegedly demarcates the land of the

petitioner and has become a part of the record of TS No.219/2004, which has

been dismissed for non-prosecution. Petitioner has adequate remedy under

the Civil Procedure Code to challenge such a report. Examination of such a

challenge would require adducing of evidence and verification of facts,

including on spot physical verification. When adequate remedy is available to

the petitioner, this Court is not inclined to invoke its extra ordinary jurisdiction

under Article 226 of the Constitution of India, where the contours of the

dispute are entirely factual without any legal connotation. The second prayer

made is, therefore, declined.

28. Coming to the third prayer i.e., for a direction to the respondents

to ensure possession of the petitioner over the land settled with her as per

WPC No. 530/2011 Page 17 of 27

order dated 24.07.1992, ordinarily, this Court would have declined to

entertain this prayer, since this also involves adjudication of disputed

questions of fact and when the petitioner herself had invoked the ordinary

civil remedy by instituting civil suit for declaration of right, title and interest

over the said land and also for recovery of possession. The writ court

normally does not enter into such an arena not because it does not possess

such power or jurisdiction, but because it does not entertain such challenge

on principles of self imposed restriction when adequate and efficacious

alternative remedy to adjudicate disputed questions of fact is available, to

ensure that judicial discipline is maintained. But in an appropriate case, the

writ court can still invoke its jurisdiction even where disputed questions of

fact are involved. However, considering the fact that petitioner, a widow, is

before this Court since the year 2011 and her civil suit instituted in the year

2004 having made no headway at all, this Court feels that shutting the doors

of this Court on the petitioner at this stage, who is only seeking custody of

her land as settled with her by the Govt., would neither be just nor fair.

Moreover, this entire problem where boundaries have become blurred is a

creation of the State Govt. because of settlement of land to the parties

adjacent to each other without proper description of land and demarcation of

boundary. Nobody has denied or disputed that petitioner and her late

husband were settled with land measuring 1 katha 10 lechas covered by Dag

No. 192 of village No. 1 Hengerabari under Beltola Mouza vide settlement

order dated 24.07.1992. The said settlement order has neither been revoked

nor modified by the Govt. Since it is the Govt. which has created the

situation, it is the Govt., which should now clear the mess. As the Govt. has

WPC No. 530/2011 Page 18 of 27

settled land with the petitioner, it must ensure that petitioner is able to enjoy

the fruits of such settlement. Needless to say, to ensure that, the entire

administrative machinery is at the command of the Govt. Since the Govt. had

made the settlement in favour of the petitioner, it is legally obliged to ensure

that the petitioner is able to enjoy the said settlement.

29. Accordingly and in the light of the discussions made above,

respondent No. 1 i.e., Principal Secretary, Revenue (S) Department, Govt. of

Assam is directed to ensure that petitioner is handed over possession of the

land covered by the settlement order dated 24.07.1992 (Annexure-I) by

doing all that is necessary in accordance with law within a period of six (6)

months from the date of receipt of a certified copy of this order.

30. While examining the claim of the rival parties and as already

noticed above, the attention of the Court was drawn to the Land Policy, 1989

of the Govt. of Assam. The issue of settlement of Government land with

private individuals at rates much lower than the market value on mere filing

of applications to the exclusion of others is an issue of considerable public

interest. This issue had surfaced during the hearing of the case as all the

three parties to the lis are beneficiaries of such settlement. Therefore, this

aspect is also required to be gone into in some detail.

31. But before that, a word or two about the way in which the

litigation had been conducted. The civil suit (Title Suit No. 219/2004) was

instituted by the petitioner in the year 2004. While it was pending, the

present writ petition was filed on 25.01.2011. Petition for withdrawal of the

suit with liberty was filed only thereafter under Order 23 Rule 3 on

WPC No. 530/2011 Page 19 of 27

22.02.2011. While the said petition was pending, the suit itself was dismissed

for non-appearance of the parties on 11.04.2012. Petition filed for recall of

the order dated 11.04.2012 and for allowing withdrawal of the suit with

liberty was dismissed on the ground of limitation as the petition was filed

belatedly without condonation petition. Thereafter, fresh petition was filed

with condonation petition, in which, it appears, no progress has been made.

The above sequence of events only goes to show how casually the litigation

was conducted on behalf of the petitioner. In the additional affidavit filed by

the petitioner on 21.06.2012, stand taken is that during the pendency of the

writ petition, petition for withdrawal of the suit was filed but the suit itself

was dismissed for default whereafter petitioner has given up the suit. Is this

the legal position? Can it be allowed? It is another matter that

notwithstanding the above, the Court has entertained the writ petition to a

limited extent in so far relief No. 3 is concerned for the reasons mentioned

above. And what about the respondent No. 5? He denies being the junior of

Late Atul Bora, husband of the petitioner. Even if that is accepted, Late Atul

Bora was certainly his colleague, a senior colleague at that. The fact that

equal plots of adjacent land were settled with them by the Government on

the same day indicates that both of them might have applied for land

together and is a reflection of their close association. What the respondent

No. 5 is saying may be correct or may not be correct. But could he not have

conducted himself in a better way? Beyond this, I do not think anything more

needs to be said.

32. It has already been noted in the earlier part of this judgment

about the land policy. More specifically, it is Clause 14, which deals with

WPC No. 530/2011 Page 20 of 27

settlement and reservation of land in towns. Clause 14.3 deals with

settlement of land within Greater Guwahati and in the other towns. Since

Clause 14.3 is relevant, the same is quoted hereunder: -

“14.03. Land within Greater Guwahati notified under

Government Notification No.RSR21/59/126, dated 1st

October, 1966 and in any other Towns may be settled on

payment of due premium with the indigenous persons of the

State in order of preference as follows –

(i) An indigenous person, who has no land in his name or in

the name of any member of his family and who has been in

occupation of Government land with members of his family

for last 15 years or more.

(ii) An indigenous person, who has land in rural area of the

State, but has no land in City or Town in his name or in the

name of any member of his family and has been in

occupation of Government land with members of his family

for last 15 years or more.

(iii) An indigenous person, who has no land in rural areas or

in City or Town in the State either in his name or in the

name of any member of his family and has been staying in

urban area for last 15 years or more with the members of

his family.

(iv) An indigenous person, who has land in rural areas, but

has no land in any urban areas either in his name or in the

name of any member of his family, and who has been

residing in urban area for last 15 years or more with

members of his family:

Provided that such person is required to reside in urban

area permanently by very nature of his service/professions

and who has not been able to purchase land in urban area

on account of poor pecuniary condition.

(v) Other indigenous landless persons of the State.”

WPC No. 530/2011 Page 21 of 27

33. Thus Clause 14.3 visualizes five situations where land can be

settled by the Government with an indigenous person. Sub-clause (i) provides

that an indigenous person who has no land in his name or in the name of any

member of his family and who has been in occupation of Govt. land with

members of his family for last 15 years or more would be entitled to

settlement in first preference. As per sub-clause (ii), an indigenous person

who has land in rural area of the State, but has no land in city or town in his

name or in the name of any member of his family and has been in occupation

of Govt. land with members of his family for last 15 years or more, would be

entitled to settlement of land in second preference. As per sub-clause (iii), an

indigenous person who has no land in rural area or in city or any town in the

State either in his name or in the name of any member of his family and has

been staying in urban area for last 15 years or more with the members of his

family would be entitled to settlement in third preference. Sub-clause (iv)

provides that an indigenous person who has land in rural area, but has no

land in any urban area either in his name or in the name of any member of

his family and who has been residing in urban area for last 15 years or more

with members of his family would also be entitled to settlement of land.

However, as per the proviso, such person is required to reside in urban area

permanently by very nature of his service/profession and who has not been

able to purchase land in urban area on account of poor pecuniary condition.

Lastly, as per sub-clause (v), other indigenous landless persons of the State

would also be entitled to settlement of land.

34. Though there may be some justification entitling landless people

to settlement of land, who are in occupation of Govt. land for last 15 years or

WPC No. 530/2011 Page 22 of 27

more, this Court is unable to find any justification at all for settlement of land

to the categories of persons covered by sub-clauses (ii) and (iv) above. As

per sub-clause (ii), an indigenous person who has land in rural area, but has

no land in city or town either in his name or in the name of any member of

his family and who has been in occupation of Govt. land with members of his

family for last 15 years or more becomes eligible for settlement of land in

Greater Guwahati or in any other towns. To the comprehension of the Court,

this provision defies all logic. Why should the State encourage people, who

already have land in rural areas, to come to Guwahati city or other towns of

the State and encroach upon Govt. land so that after 15 years of such

encroachment, they become entitled to settlement of land in Guwahati city or

any other towns at Govt. rate, which is usually a fraction of the market value

of the land. More astonishing is the provision contained in sub-clause (iv),

which enables an indigenous person who has land in rural area, but has no

land in urban area either in his name or in the name of any of his family

members and who has been residing in urban area for last 15 years or more

with members of his family. As per the proviso, such stay in urban area must

bear some permanence by virtue of his service or profession and that he has

not been able to purchase land in urban area on account of poor pecuniary

condition. Question is why should such a person, who already has land in

rural area, staying in an urban area in connection with his service or because

of professional requirement be settled with land by the Govt. at a throw away

price only on the ground that he is unable to purchase such land in urban

area because of poor pecuniary condition? Or why should a person who has

land in rural area of the State, but has no land in the city or town, be

WPC No. 530/2011 Page 23 of 27

favoured with settlement of land in the city or town, if he is in occupation of

Govt. land with members of his family for last 15 years or more? Why should

the State make an exception in favour of persons who already have land in

rural areas by favouring them with settlement in urban areas? These are

legitimate questions. We are a society governed by the rule of law where

every State action must conform to the constitutional requirement of fairness,

reasonableness and transparency. Moreover, requiring such a person to be in

occupation of Govt. land for 15 years or more virtually encourages and puts a

premium on illegal encroachment of Govt. land. Illegal encroachment of

various categories of land has become rampant, more particularly, in

Guwahati city in recent times. There cannot be any noble objective or great

philosophy behind rewarding such persons with settlement of land at

negligible price, who already have land in rural areas. Why should service

holders and professionals like the petitioner and the respondents in the

present case be made eligible for settlement of Govt. land at much lower

price, thereby causing substantial loss to the State exchequer?

35. Moreover, no procedure is prescribed for settlement of such land.

What Clauses 14.3(ii) and 14.3 (iv) visualize is filing of an application by a

person fulfilling the criteria laid down in the two sub-clauses and if they fulfill

the criteria, they would be settled with land. There would be thousands of

such people, who may have land in rural areas but no land in Guwahati or in

the other towns and who may be in occupation of Government land for 15

years or more in urban area or who may be staying in an urban area

permanently because of his service or professional requirement. How can one

be selected or preferred over another in the matter of land settlement? Such

WPC No. 530/2011 Page 24 of 27

a procedure is neither transparent nor reasonable. The State Government

cannot grant largesse by way of land settlement to any individual according

to its sweet will and by following such arbitrary and non-transparent

procedure. The State has no such unfettered discretion. In matters of

distribution of State largesse, such as, allotment of land, grant of quotas etc.,

State action must be non-arbitrary and non-discriminatory. State action

cannot be influenced by favouritism. Such discretion must be exercised on

sound principles which are consistent with the mandate of Article 14 of the

Constitution of India. There cannot be any unfettered discretion in such

matters.

36. In the case of AKHIL BHARTIYA UPBHOKTA CONGRESS VS.

STATE OF MADHYA PRADESH & ORS., reported in (2011) 5 SCC 29, the

Hon’ble Supreme Court held that there cannot be any policy of allotting land

on the basis of applications made by individuals dehors an invitation or

advertisement by the State. By entertaining applications made by individuals

for allotment of land, the State cannot exclude other eligible persons from

lodging competing claims. Any allotment of land by the State by treating the

exercise as a private venture is liable to be treated as arbitrary, discriminatory

and an act of favouritism violating Article 14 of the Constitution of India. This

is what the Hon’ble Apex Court held in that case:-

“65. What needs to be emphasized is that the State

and/or its agencies/instrumentalities cannot give largesse

to any person according to the sweet will and whims of the

political entities and/or officers of the State. Every

action/decision of the State and/or its

agencies/instrumentalities to give largesse or confer benefit

WPC No. 530/2011 Page 25 of 27

must be founded on a sound, transparent, discernible and

well-defined policy, which shall be made known to the

public by publication in the Official Gazette and other

recognized modes of publicity and such policy must be

implemented/executed by adopting a non-discriminatory

and non-arbitrary method irrespective of the class or

category of persons proposed to be benefited by the policy.

The distribution of largesse like allotment of land, grant of

quota, permit licence, etc. by the State and its

agencies/instrumentalities should always be done in a fair

and equitable manner and the element of favouritism or

nepotism shall not influence the exercise of discretion, if

any, conferred upon the particular functionary or officer of

the State.

66. We may add that there cannot be any policy,

much less, a rational policy of allotting land on the basis of

applications made by individuals, bodies, organizations or

institutions dehors an invitation or advertisement by the

State or its agency/instrumentality. By entertaining

applications made by individuals, organizations or

institutions for allotment of land or for grant of any other

type of largesse the State cannot exclude other eligible

persons from lodging competing claim. Any allotment of land

or grant of other form of largesse by the State or its

agencies/instrumentalities by treating the exercise as a

private venture is liable to be treated as arbitrary,

discriminatory and an act of favouritism and/or nepotism

violating the soul of the equality clause embodied in Article

14 of the Constitution.

67. This, however, does not mean that the State can

never allot land to the institutions/organizations engaged in

educational, cultural, social or philanthropic activities or are

rendering service to the society except by way of auction.

Nevertheless, it is necessary to observe that once a piece of

land is earmarked or identified for allotment to

WPC No. 530/2011 Page 26 of 27

institutions/organizations engaged in any such activity, the

actual exercise of allotment must be done in a manner

consistent with the doctrine of equality. The competent

authority should, as a matter of course, issue an

advertisement incorporating therein the conditions of

eligibility so as to enable all similarly situated eligible

persons, institutions/organizations to participate in the

process of allotment, whether by way of auction or

otherwise. In a given case the Government may allot land at

a fixed price but in that case also allotment must be

preceded by a wholesome exercise consistent with Article

14 of the Constitution.

68. The allotment of land by the State or its agencies

/instrumentalities to a body/organization/institution which

carry the tag of caste, community or religion is not only

contrary to the idea of secular democratic republic but is

also fraught with grave danger of dividing the society on

caste or communal lines. The allotment of land to such

bodies/organizations/ institutions on political

considerations or by way of favouritism and/or nepotism or

with a view to nurture the vote bank for future is

constitutionally impermissible.”

37. Evidently and in the light of the above declaration of law by the

Apex Court, the above Clauses 14.3 (ii) and 14.3 (iv) of the Land Policy, 1989

of the Govt. of Assam cannot stand the test of judicial scrutiny on the

touchstone of Article 14 of the Constitution of India. The above two

provisions would therefore require a re-examination/review by the State Govt.

in the Revenue Department.

38. Keeping the above aspects in mind, this Court considered the

option of directing the parties to the present lis i.e., the petitioner,

WPC No. 530/2011 Page 27 of 27

respondent No. 5 and the legal heirs of respondent No. 6 to pay the market

value of the land settled with them. However, on due consideration, this

Court has refrained from embarking upon the said course of action as all the

beneficiaries of settlement of land in terms of the above two clauses are not

before the Court. Directing only the petitioner, respondent No. 5 and legal

heirs of respondent No.6 to pay the market value of the land to the exclusion

of the other beneficiaries would neither be fair nor just.

39. Thus having regard to the above, respondent No. 1, i.e.,

Principal Secretary to the Govt. of Assam, Revenue Department is directed to

review Clauses 14.3 (ii) and 14.3 (iv) of the Land Policy, 1989 of the Govt. of

Assam keeping in view the observations made above. Such a review should

be carried out within a period of six (6) months from today. Till such exercise

is undertaken and carried out, State respondents are directed not to make

further settlement of land in Greater Guwahati and in other towns of the

State in terms of the above two clauses.

40. Writ petition is accordingly disposed of as per directions

contained in paragraphs 29 and 39 above. No costs.

Judge Beep!