WP(C) 910/2010 - Gauhati High Court

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)WRIT PETITION (C) 910/20101. Dewan Jamsher Ali,S/O. Late Intaz Ali.2. Mrs. Fatema Begum,W/O. Dewan Jamsher Ali.Both are of village- Kayakuchi Pather,P.O.- Kayakuchi Bazar,Mouza- Paka,P.S.- Barpeta,District- Barpeta…PETITIONERS-VERSUS-1. The State of Assam,Represented by the SecretaryTo the Government of Assam,Department of land Revenue,Dispur, Guwahati-62. The State of Assam,Represented by the Secretaryto the Govt. of Assam,Deptt. of P.W.D., Dispur,Guwahati-63. The Chief Engineer,P.W.D., Chandmari,Guwahati-34. The Executive Engineer,P.W.D., Barpeta.5. The Deputy Commissioner,Barpeta.

26. The Officer-In- Charge,Barpeta Police Station,Barpeta.….. RESPONDENTSWRIT PETITION (C) 1187/20101. Tuta Mia,2. Dilowar HussainBoth are sons of Late Kasimuddin,3. Joygon Nessa,4. Nurbanu Nessa,3 & 4 are daughter of Late Kasimuddin.5. Ashmat Ali,S/o- late Hakimuddin,6. Meser Ali,S/o- Hasen Ali,All are of village-Kayakuchi Pathar,PO- Kayakuchi Bazar,PS & Dist.-Barpeta.…PETITIONERS-VERSUS-1. The State of Assam,Represented by the Secretaryto the Government of Assam,Department of land Revenue,Dispur, Guwahati-62. The State of Assam,Represented by the Secretaryto the Govt. of Assam,Deptt. of P.W.D., Dispur,Guwahati-63. The Chief Engineer,P.W.D., Chandmari,Guwahati-3

34. The Executive Engineer,Rural Roads, P.W.D., Barpeta.5. The Deputy Commissioner,Barpeta.6. The Officer-In-Charge,Barpeta Police Station,Barpeta.….. RESPONDENTSB E F O R EHON’BLE MRS. JUSTICE ANIMA HAZARIKAAdvocates for the petitioners : Mr. B Banerjee,Mr. A Roshid,Mr. J Laskar,Mr. DFA Ahmed,Mrs. T Yasmin,Mr. A Mobaraque,Advocates for respondentNos.1, 5 and 6 : Mr. J HandiqueState CounselAdvocates for respondentNos.2, 3 and 4 : Ms. R Deka,Standing Counsel, PWDDate of hearing & judgment : 03.08.2012

4JUDGMENT AND ORDER (ORAL)Heard Mr. B Banerjee, learned counsel appearing for thepetitioners. Also heard Mr. J Handique, learned State counselappearing for the respondent Nos.1, 5 and 6 and Ms. R Deka,learned Standing Counsel, PWD appearing for the respondentNos.2, 3 and 4.2. Making grievances against the construction of road onthe patta land under Pradhan Mantri Gramin Sadak Yojana(for short PMGSY), the petitioners, both in WP(C)No.910/2010 (Dewan Jamsher Ali and another Vs State ofAssam and others) and WP(C) No. 1187/2010 ( Tuta Mia andothers vs State of Assam and others), have approached thisCourt seeking direction in the nature of Mandamus not to usethe land of the petitioners situated in Dag No.328, Patta No.155 in WP(C) No. 910/2010 and Dag No.335, 327 Patta No.70and 54 in WP(C) No.1187/2010, Mouza Paka, villageKoyakuchi pathar, district Barpeta. Relief sought for in boththe writ petitions being identical, the same are being disposedof by this common judgment.3. WP(C) No. 910/2010 came up for consideration beforethis Court on 5.2.2010, wherein this Court passed thefollowing orders:“Heard Mr. A.K. Goswami, learned senior counselappearing for the petitioners. Mr. J. Patowari, learnedstanding counsel for the Public Works Departmentappears for respondents 2, 3, & 4. Respondents 1, 5 &

56 are represented by Mr. H. Rahman, learnedGovernment Advocate.The petitioners claim that a village road fromKayakuchi Pather to Nashatra via Helacharpam isbeing constructed under the PMGSY Scheme over thePatta land of the petitioner, without taking any stepsfor acquisition of the said land and payment ofcompensation to the Patta holders.In view of above, let a Notice returnable on22.2.2010 be issued to enable the Government Counselsto obtain instructions.In the mean time status quo on the constructionover the land of the petitioners measuring 4 Bighas,under Dag No. 328, patta No. 155, Mouza Paka, villageKayakuchi Pather in the District of Barpeta bemaintained.”4. During the pendency of the writ proceedings, theofficials of the State respondent filed their pleadings in theform of an affidavit whereof the stands in the both writpetitions are identical. The stand of the respondent Nos.2, 3and 4 as averred in the affidavit are that the construction ofroad from Helacharpora to Nasatra via Pethandipamincluding cross drainage works are carried out under thesupervision of the answering department under the PMGSY(Regular) Ph-(VII) for the year 2007-08, package No.AS-01-74which road is 3 km in length, wherefor the construction/development of the road is carried out in the existing roadand not over the land as alleged. Moreover, as per theDetailed Project Report (‘DPR’ for short) and the Right of Way(ROW for short) of the existing track is 12 meter and there is

6no necessity of acquiring the petitioner’s land and similarly,the question of destroying the movable and immovableproperties belonging to the petitioners does not arise, since noconstruction is carried out over the petitioner’s plot of land.5. The stand of the respondent No.5 in both the cases aresame wherein the respondent No. 5 contended that the bendas stated at paragraph-3 of the writ petition is existed in theoriginal i.e. Koyakuchi Pathar to Pathadi Road and the bendroad is utilized for movement of thela, rickshaw, bicycle,motorcycle and pedestrians also and the construction of theroad is being carried out on the original existing road, hencethere is no question to acquire land.6. WP(C) No. 910/2010 came up for consideration after thepleadings were completed and the Court after hearing theparties on 7.10.2010 passed the following orders:“ Heard Mr. A. Roshid, learned counsel appearing forthe petitioner and Ms. Phukan, learned GovernmentAdvocate appearing for the State-respondents. Alsoheard Mr. J. Patowary, learned Standing Counselappearing for the respondent Nos. 2, 3 and 4.The claim of the petitioners in this writ petition isthat the State PWD had encroached upon the land ofthe petitioner which is described to be under Dag No.328, Patta No. 155, Mouza-Paka, village KayakuchiPather in the District of Barpeta. The further contentionof the petitioner is that the construction of the road inquestion has been started by the respondent authorityunder the PMGSY Scheme without acquiring the

7encroached portion of the petitioner’s land and as sucha direction is sought for from this Court either foracquisition of land and payment of compensationthereto. This contention is disputed in the affidavitfiled by the Chief Engineer of State PWD as well as bythe Government respondents by contending that whilecarrying out the construction of the road under PMGSY(Regular) Ph-VII for the year 2007-2008, Package No. AS-01-74, the construction/upgradation is done on theexisting road and this assertion is again disputed bythe petitioner by filling a rejoinder affidavit. The Courtis not in a position to understand whether the land ofthe petitioner has been encroached upon by the StatePWD in the construction/upgradation of road underPMGSY scheme or not and at the same time, the Court isnot inclined to throw out this petition on the ground ofinvolvement of disputed question by facts inasmuch asthe dispute raised by the parties can be resolved once aproper demarcation of the area is done by thecompetent authority.In this view of the matter, the Circle Officer,Sarthebari Revenue Circle, District Barpeta who is thecompetent authority to conduct demarcation of thedisputed land, is directed to conduct a demarcation ofthe area with the help of the revenue records to find outwhether the construction/upgradation of the road hastouched/encroached upon any portion of the landbelonging to the petitioner as claimed or theconstruction in question is within the existingroad/government land. The demarcation shall be doneby the Circle Officer, Sarthebari Revenue Circle, aftergiving due notice to the parties in the case i.e. thepetitioner and the PWD, within a period of one monthfrom the date of receipt of a copy of this order. TheCircle Officer is further directed to submit the report ofthe demarcation.List this matter on 11.11.2010.

10common good and also be just and equitable. Thedetails of land made available should be reflected inthe local land records to avoid dispute.”9. A conjoint reading of paragraph-3 of the additionalaffidavit as indicated above along with its Annexures-A and Band trace map submitted by the Circle Officer, SarthebariRevenue Circle, Barpeta would amply demonstrate that theproposed road under PMGSY sought to be constructed underDag No. 328 Patta No.155 is encroaching the land, thereby,measuring 2 Kathas 3 Lechas of the petitioners’ land in WP(C)No. 910/2010 and the trace map would disclose that thereexists straight Government road under Dag No. 330 and thereis no impediment for construction of road of upgradation overthe Government land under Dag No. 330 under PMGSY.10. I have heard learned counsel appearing for the partiesat length. Perused the pleadings set forth by the respectiveparties along with the Annexures appended thereto. In view ofthe materials available on record, in the considered opinion ofthis Court, the writ petitioners have been able to make out acase for passing necessary order as prayed for by invoking thepower of writ jurisdiction.11. In the result, in view of the observation and discussionmade hereinabove, both the writ petitions are alloweddirecting the officials of the State respondent Nos. 2, 3, 4 and

115 to construct road and/or upgrade the existing road overthe existing Government road under PMGSY in Dag No 330which is a straight road and it should not encroach the pattaland of the petitioners, viz. Dag No. 327, 328 and 335, ofPatta No.155, 54 and 70 without taking recourse to clause6.12 of the PMGSY scheme and guidelines as indicated above.Grievances ventilated by the petitioners in both the writpetitions viz. WP(C) No. 910/2010 and WP(C) No.1187/2010is answered accordingly. The parties are left to bear their owncosts.JUDGEgunajit/naba