THE GAUHATI HIGH COURT AT GUWAHATI

Transcription

1 THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI WP(C) No. 1896/2011 Khagorijan Anchalik Krishak Suraksha Samiti, Represented by its Secretary, Registered office at Vill/PO-Majarvati, PS-Sadar, District-Nagaon, Assam, Pin , Assam. -Versus- 1. The State of Assam, Represented by the Secretary, Revenue Department, Govt. of Assam, Dispur, Guwahati. 2. The Deputy Commissioner, Nagaon, Dist.-Nagaon, Assam, Pin The Marwari Panchayat (Gopal Gosala), Represented by its President, Situated at Village-Hoiborgaon, PS-Hoiborgaon, District-Nagaon, Assam, Pin Petitioner. Respondents. BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY For the Petitioner: Sheeladitya. Advocate. For the Respondents: Mr. D. Nath, GA, Assam (R-1 & 2), Mr. S.K. Das (R-3), Mr. K. Das (R-3), Mr. S. Khound (R-3), Mr. S.C. Khound (R-3), Mr. R. Baruah (R-3). Advocates. Date of Hearing & Judgment : 23 rd November, 2017 WP(C) 1896/2011 Page 1 of 6

2 JUDGMENT AND ORDER (ORAL) Heard Mr. Sheeladitya, the learned counsel appearing for the petitioner. The respondent Nos.1 and 2 are represented by Mr. D. Nath, the learned Addl. Sr. Govt. Advocate, Assam. The contesting litigant in this case is the Marwari Panchayat (Gopal Gosala) and they are represented by the learned counsel Mr. R. Baruah. 2. The petitioner is a society registered under the Registration of Societies Act, 1860 and the objective of the society is, inter-alia, to protect the rights of the villagers residing in and around the disputed area, of Nagaon district. The society challenges the order dated (Annexure-6), whereby settlement of 75 bigha land for the Goshala (respondent No.3) was approved by the Government and direction was issued on (Annexure-8) for handing over possession to the beneficiary, who had deposited the premium of Rs.4875/- on , for the allotted land. 3. The petitioner contends that the concerned land was earmarked as Village Grazing Reserve (VGR) and without de-reservation of the land, allotment thereof to anyone, is legally impermissible. The counsel refers to the settlement order itself to project that only after granting the settlement, direction was issued for submitting the de-reservation proposal for the VGR land. 4. The villagers were all along utilizing the VGR land for grazing their household cattle and they specifically averred in paragraph 4 that on , the attempt was made by some people from Nagaon Town to occupy the grazing land of the villagers and it led to a law and order situation. Subsequently, the Marwari Panchayat (respondent No.3) claimed themselves to be the owner of the VGR land, which prompted the petitioner into making enquiries, under the Right to Information Act. In pursuant to such enquiry, the applicants were informed of the allotment of the VGR land in the year 1970 itself. But according to the petitioner, the allottees never asserted their rights to the VGR land for nearly 40 years and tried to take possession only on , when the nearby villagers resisted and later learnt of the hush hush allotment. WP(C) 1896/2011 Page 2 of 6

3 5. The petitioners refer to the Rules For The Allotment of Grazing Grounds in Chapter-II (hereinafter referred to as the Grazing Rules ) of the Assam Land and Revenue Regulation to contend that the procedure for de-reservation of the VGR land envisaged under Rule 95A, was disregarded and the affected villagers had no opportunity to file objection as notice was never published to invite objection for the de-reservation proposal. 6. The learned counsel Mr. Sheeladitya refers to the Govt. communication dated and (Annexures-9 and 11) to project that the Government also noticed the illegality in the procedure by observing the fact that VGR land is being allotted without de-reservation and accordingly the same was described as irregular and direction was issued to stop the settlement made to the Goshala. 7. On the other hand, Mr. D. Nath, the learned Addl. Sr. Govt. advocate refers to the counter affidavit filed on by the respondent No.2 to project that allotment of land was duly made on receipt of the Govt. premium and therefore he submits that this was as per norms. 8. The Govt. advocate further submits that the petitioner was provided all informations on their RTI application about the allotment of VGR land made in the year 1970 to the respondent No.3 and he submits that it is the responsibility of the allottee to utilize the land for the allotted purpose. 9. The learned counsel Mr. R. Baruah appears for the allottee and he submits that the respondent No.3 had paid the govt. premium and kept possession of the settled land. The construction of sheds for keeping cattle in the Goshala is also asserted by Mr. Baruah, on behalf of the allottee. 10. The fundamental question to be considered here is whether the land reserved for grazing of the cattle of the local villagers was allotted to the respondent No.3, even before the VGR land was de-reserved. The determination on this aspect can be drawn from the allotment order of (Annexure-6), which suggest submission of de-reservation proposal for the allotted VGR land. That is why in the communication made by the Government on , it was stated that allotment of VGR land without de-reservation is irregular and WP(C) 1896/2011 Page 3 of 6

4 accordingly report was sought from the D.C., Nagaon and allotment was ordered to be kept in abeyance, in the meantime. 11. The above facts makes it clear that the Government settled the land reserved for grazing purpose, without de-reservation of the land. This naturally is impermissible. The Rule 95A of the Grazing Rules requires publication of notice on de-reservation of VGR land, the hearing of objections and then the final order of the Government. The issue of payable compensation to the affected villagers who would be deprived of the grazing rights, is also to be considered. Claims of those who may have surrendered their patta land for constituting the VGR and whether their right gets revived on cancellation of reservation, is another aspect of examination, under Rule 95A of the Grazing Rules. But none of these steps were taken by the authorities and thus the affected villagers were totally unaware of the allotment to the respondent No.3, in the year The averments made in the govt. affidavit suggest that information of settlement about the 75 bigha VGR land to the respondent No.3 was furnished only because of the RTI application made by the petitioner. From this it can be reasonably concluded that until , the villagers were unaware of the allotment as the concerned VGR land continued to be used for regular grazing of the household cattle, by the neighbouring villagers. 13. It is also a matter some significance that there is no specific denial by respondent No.3 on the assertion of possession at first instance, only on by the allottee. Instead there is vague and innocuous claim of retaining possession for past 40 years by payment of the land revenue and deposit of premium, for the allotted land. Moreover in paragraph 32 of the counter affidavit filed by the respondent No.3, the deponent speaks off construction of sheds for keeping cattle, but it is the specific contention of the petitioner that shed construction activity started only after May, 2010 but before that, the allottee never ever asserted possession and the VGR land was utilized undisturbed by the local villagers. In fact, the petitioner s lawyer produces several photographs with the self-generated date of , which shows construction of bamboo and tin sheds, on the allotted VGR land, in the year Therefore it can be WP(C) 1896/2011 Page 4 of 6

5 reasonably concluded that although allotment was made in 1970, the respondent No.3 asserted possession only in 2010/2011 and not before. 14. Under the Land Revenue Regulation, the Deputy Commissioner is vested with the power for de-reservation of grazing land, but due process for dereservation specified under Rule 95A of the Grazing Rules, must be followed in all such cases. Neither the case records nor the affidavits of the respondents suggest the publication of any notice inviting objection on the de-reservation proposal. Therefore it is obvious that the affected villagers were denied any hearing or opportunity to file objections. Hence clear infringement of the procedure for dereservation envisaged by the Grazing Rules, is seen in the present case. 15. Now let us revert back to the fundamental question on whether land reserved for grazing purpose can be allotted, without first undertaking the exercise envisaged by Rule 95A of the Grazing Rules. The case records show that the proposal for de-reservation of the VGR was given much after the settlement was made on The learned Govt. advocate has produced the letter dated , which shows that the proposal (for de-reservation of 75 bighas of land of the Majar Ati VGR) was approved only on , by the Government. 16. Apart from the above infirmity, the entire allotment was made in a hush hush fashion keeping the affected villagers in the dark. They were denied the opportunity to file objection or to make their claim as envisaged by the Grazing Rules. Moreover, the allottee too kept quiet about the allotment and never asserted their right of possession for around forty years during which, the local villagers continued to use the land for grazing their household cattle or to keep them protected on the high land, during flood times. 17. In the above circumstances, the allotment of reserved land in secrecy and without de-reservation, cannot be legally sustained and accordingly the allotment made on (Annexure-6) to the respondent No.3, is set aside and quashed. However, this verdict will not foreclose the option of the authorities to re-consider allotment, but this must be done only by strict adherence to the due process envisaged by Rule 95A of the Grazing Rules. In other words, notice on proposed de-reservation must be published to invite objection, the affected WP(C) 1896/2011 Page 5 of 6

6 villagers must be heard and their entitlement be considered. Moreover, the revival of rights of those who surrendered their patta land for constitution of the VGR, must also be taken into account before any final decision is taken on dereservation. It is ordered accordingly. 18. With the above order, the case stands allowed without any order on cost. JUDGE Roy WP(C) 1896/2011 Page 6 of 6