B.P. Katakey, J.@mdashThe petitioner, by the present writ petition, has prayed for directing the respondents not to evict the members of the petitioner''s committee from the land under their occupation and also to consider the application filed by them for grant of settlement of the land they are possessing.
2. I have heard Mr. M. Singh, learned Counsel for the petitioner, Mr. K.N. Choudhury, learned Addl. Advocate General, Assam for the respondent Nos. 1 to 3 and Mrs. Milli Hazarika, learned senior counsel appearing on behalf of the respondent No. 4, Assam Industrial Development Corporation Limited.
3. Mr. Singh, learned Counsel for the petitioner has submitted that the members of the petitioner''s committee, 18 in number, named in annexure 2 to the writ petition, are possessing the land measuring about 3 Bs each for last more than 70 years and as such, they acquire bona fide right of claim over the land under their possession due to the long and uninterrupted possession and, therefore, the land which was initially a Village Grazing Reserve (V.G.R.) and subsequently, de-reserved and became government khas land ought to have been settled in their favour pursuant to the applications filed by them for settlement as they are landless persons fulfilling the conditions required for getting settlement under the Assam Land and Revenue Regulation. The further submission of Mr. Singh is that they cannot be evicted under Rule 18 of the Settlement Rules as they acquired bona fide right of claim due to long possession and in any case, without following the procedure laid down under the said Rules. It has further been contended by the learned Counsel for the petitioner that the Government of Assam vide notification dated 20.1.1968 has taken a policy decision regarding the settlement of land and also removal of encroachment from the V.G.R. and other Government khas land, according to which the Government before removal of encroachment has to consult the Land Settlement Advisory Committee and in the instant case, the authority without making any consultation with the Land Settlement Advisory Committee has sought to evict the members of the petitioner''s committee and that too, without issuing any notice as required under Rule 18 of the Settlement Rules framed under the Assam Land Revenue Regulation.
4. Mr. K.N. Choudhury, learned Addl. Advocate General, Assam relying on the affidavit-in-opposition filed on behalf of the respondent No. 2 has submitted that an area of land measuring 166 Bighas-3 Kathas in the V.G.R. at Kundargaon in Titabor Town, part of which is being encroached upon by the members of the petitioner''s committee, processed to dereserve under the provisions of the Assam Land Revenue Regulation and keeping in view the necessity of industrialization in Assam and having found the said plot of land suitable for the purpose and after convening a meeting with all the leading people of the locality and Gaon Panchayat members and the President, an area of land measuring 120 bighas out of the said land has been settled in favour of the Assam Industrial Development Corporation for setting up of an Industrial Infrastructure Development Centre with the Government of India assistance. According to the learned Addl. Advocate General, the eviction of the unauthorized occupants of the said land was undertaken after issuing notice as required under Rule 18 of the Settlement Rules. But subsequently, by the strength of the interim Order passed by this Court in the present writ petition, all the evicted persons including the members of the petitioner''s committee re-occupied the land and in fact, growing tea bushes over the said land. According to the learned Additional Advocate General, the Government authority before carrying out the eviction operation has carefully verified the claim of each of the encroachers for settlement of the land and upon verification, it was found that 12 numbers of families out of 40 encroachers including some members of the petitioner''s committee were really found to be landless persons and accordingly, the land in the different areas has been settled in favour of the said 12 number of families, they having been found suitable for grant of settlement of land under the land policy of Assam as well as under the Assam Land and Revenue Regulation. The learned Addl. Advocate General has further submitted that other members of the petitioner''s committee do not deserve settlement of land as they were found not to be landless persons and as they were encroaching the Government land, which was initially the V.G.R. and, therefore, notices under Rule 18 of the Settlement Rules were issued and they were initially evicted on 14.9.2002 and 15.8.2002 from the land but came to re-occupy the same by virtue of the interim Order passed by this Court. The Addl. Advocate General has submitted that since the members of the petitioners'' committee are the encroachers occupying the V.G.R. and could not show any semblance of right to possess the land which they are possessing, they are liable to be evicted and that too, in view of the greater public interest involved as the land has been settled with the respondent No. 4 for establishment of the Industrial Infrastructure Development Centre with the Central Government assistance. Therefore, according to the learned Addl. Advocate General, the greater public interest must prevail on the interest of the individuals who are encroachers of the Government land, more so, when they do not have any right to occupy the Government land.
5. Mrs. Milli Hazarika, learned senior counsel appearing on behalf of the respondent No. 4, relying on the affidavit-in-opposition filed on its behalf, while supporting the arguments put forward by the learned Addl. Advocate General, has also submitted that the land measuring 120 bighas, part of which at present being occupied by the members of the petitioner''s committee, was settled with the respondent No. 4 for a setting up of an industrial complex under the Industrial Infrastructure Development scheme which is a Government of India sponsored scheme formulated with the object, amongst others, to promote the clusters of small scale and time units with a view to create employment opportunities and development of exports. According to the learned senior counsel, because of the illegal occupation of the part of the land by the members of the petitioner''s committee, the respondent No. 4 has not been able to implement the said project which is to be implemented by December 2005, the project cost of which is Rs. 475.20 lakh borne by the Government of India. Mrs. Hazarika, learned senior counsel has further submitted that the land being the Government land the same was settle c with the respondent No. 4 keeping in view the greater public interest involved and as the members of the petitioner''s committee has not been able to demonstrate any semblance of right to occupy the Government land, the writ petition deserves to be dismissed.
6. I have considered the submissions of the learned Counsel for the parties, perused the pleadings as well as the records produced before the court by the learned Addl. Advocate General.
7. There is no dispute that the land presently under occupation of the members of the petitioner''s committee is part of Village Grazing Reserve and subsequently processed for de-reservation for the purpose of settling the same in favour of the respondent No. 4 setting up of an Industrial Infrastructure Development Centre with the Central Government Assistance.
8. The members of the petitioner''s committee claimed the right over the land under their possession, which is a part of the land settled in favour of the respondent No. 4 for setting up of an industrial centre, on the basis of their long possession over the said land. The further case of the members of the petitioner''s committee is that pursuant to the land policy of the Government of Assam, they filed applications for settlement of g the land under their possession and they being the landless persons qualified to get settlement under the land policy of the respondent No. 4 ought to have settled the same with the members of the petitioner''s committee. The further case of the members of the petitioner''s committee is that they cannot be evicted from the land as they have bona fide h right of claim over the land because of their long possession and at least until their application for settlement is disposed of by the authority. It is also the case of the petitioner that the land has been settled with the respondent No. 4 without passing any final Order of deservation of VGR and, hence, the settlement made in their favour is illegal.
9. Rule 16 of the Settlement Rules framed under the Assam Land and a Revenue Regulation prohibits any person from entering into the possession of the waste land of any area until a lease has been issued to him or otherwise the written permission of the Deputy Commissioner has been granted to him, pending issuance of such lease to enter into possession. Rule 95 of the Settlement Rules provides that when a grazing ground has been initially demarcated under Rule 89 of the said Rules, no person shall occupy any part of such grazing ground for purposes other than grazing and whoever contravenes the said Rules, the said persons shall be punished with fine to be imposed by the Deputy Commissioner which may extend to Rs. 50. Rule 95A of the said Rules provides for dereservation of any Village Grazing Ground.
10. In the instant case, the land measuring 120 bighas which is covered by Dag. No. 334 (Part)/373/374/383/385 and 507 of Kundargaon under mouza Thengal in Titabor Revenue Circle, and is a part of Kundargaon V.G.R. was proposed to be de-reserved in terms of the provisions contained in Rule 95A of the Settlement Rules. The writ petitioner claims to be in possession for last more than 70 years, initially through their forefathers. Unless a lease is granted by the competent authority or permission has been granted by the Deputy Commissioner to occupy any Government waste land as required under Rule 16 of the Settlement Rules, no person can enter into and possess the said land and if they possess the same, they will be treated as encroachers being illegal occupiers of the Government land or Village Grazing Reserve and the said character of the encroachers will not be changed because of long possession of the land by any person.
11. Sub-rule (1) of Rule 18 of the Settlement Rules provides that the Deputy Commissioner may eject any person from the land over which no person has acquired rights of the proprietor, landholder or settlement holder. Sub-rule (2) of Rule 18 of the Settlement Rules empowers the authority to evict any person, who has entered into possession of the land that has previously been reserved for roads or roadside land or for the grazing of village cattle or for other public purposes or enter into possession of the land from which ha has been excluded by general or special Order and when there is no bona fide claim of right involved. Such ejectment has to be made forthwith. Sub-rule (2) of Rule 18 of the Settlement Rules, therefore, does not provide for issuance of any notice before eviction, unlike Sub-rule (3) of the said rule which provides for issuance of notice before eviction from the land covered by Sub-rule (2) of the said Rules.
12. As discussed above, Rule 16 of the Settlement Rules read with Rule 95 of the said Rules any person from occupying either Government waste land or the Village Grazing Reserve. Rule 16 of the Settlement Rules provides that no person can possess any waste land without lease or any permission from the Deputy Commissioner. Therefore, it is evident that to acquire bona fide claim of right over the land possessed by a person, he must have a lease in his favour or written permission from the competent authority to possess the same. Unless a lease or permission is granted in his favour, he cannot occupy the land and consequently, he has to be termed as an encroacher and liable to be evicted by virtue of Rule 18 of the Settlement Rules. In the instant case, the petitioner has not been able to show any semblance of right or any document issued by any authority allowing its members to occupy the land which is presently under their possession and, therefore, however, long period of possession may be, such unauthorized act on the part of the members of the petitioner''s committee shall not give rise to any bona fide claim of right to remain in possession and consequently, not evictable by invoking the provisions of Rule 18 of the Settlement Rules. As discussed above, the land is the Village Grazing Reserve, the occupation of which has been prohibited by Rule 95 of the Settlement Rules.
13. The members of the petitioner''s committee, as discussed above, are occupying the Village Grazing Reserve land, the occupation of which is prohibited under Rule 95 of the Settlement Rules and, therefore, they are liable to be evicted by virtue of Sub-rule (2) of Rule 18 of the Settlement Rules and in that case, no notice is required to be issued before such eviction. It appears from the record produced by the authority that notices in fact, were issued and the eviction operation was carried on after notice. It is also evident from the record that the verification was done by the revenue authority regarding the claim of the 40 occupants of the land which include some of the members of the petitioner''s committee and out of which 12 encroachers were found to be entitled for settlement and, therefore, different lands were settled with those 12 persons. The authority after conduct of verification have found the members of the petitioner''s committee who were occupying the land earlier, not entitled to get settlement of the land as they were not landless persons and some of them belong to the same family.
14.The notification dated 20.1.1968 issued by the Government of Assam, which has been relied upon by the learned Counsel for the petitioner, has provided that all encroachment of Forest and Grazing Reserves should be dealt with firmly and expeditiously and the Government while removing the encroachment, is to examine the eligibility and genuineness of the stray encroachers with consultation with the Land Settlement Advisory Committee, but at the same time, it has the stipulation that such consideration will not in any way create any right to get settlement or remain under unauthorized occupation of the land and in any way, no encroachers, even if found eligible, shall have any claim of settlement of land except for homestead purpose up to a maximum of 2 bighas, the exact location of which will be decided by the district authority. In the instant case, the claim of the members of the petitioner''s committee were duly scrutinized and not found suitable for settlement. The members of the petitioner''s society are admittedly planting tea bushes thereby undertaking tea cultivation over the land which they are illegally possessing without any authority of law.
15. The learned Additional Advocate General, has fairly submitted that though the process for deservation of the VGR land, which was settled with the respondent No. 4 vide Order dated 15.9.2002, was initiated by the concerned Deputy Commissioner as required under Rule 95A of the Settlement Rules framed under Assam land and Revenue Regulation, 1886, no final Order has been passed by the Government as required under the said Rule 95A.
16. Settlement Rules framed under the Assam Land and Revenue Regulation prohibits possession or settlement of any VGR unless such VGR is dereserved first. The notification dated 20.1.1968 issued by the Government of Assam also prohibits such action. In the instant case the Deputy Commissioner allotted the land in favour of the respondent No. 4, without there being a final Order passed by the Government of Assam under Rule 95A of the Settlement Rules though the land in question is a part of VGR. The Deputy Commissioner has no power and authority to make such settlement of VGR without such final Order of Government. Therefore, though it has been held that the members of the petitioner''s association have no right to occupy the land in question, they being the encroachers of the land and they are to be evicted therefrom, the respondent Nos. 1 to 3 are directed not to allow the respondent No. 4 to undertake any activities over the land allotted to them, unless and until final Order is passed by the Government under Rule 95A of the Settlement Rules, on the proposal for deservation of VGR submitted by the Deputy Commissioner.
17. In view of the aforesaid discussion, the writ petitioner is not entitled to any relief as claimed for and, hence, the writ petition is dismissed with the observations and directions made above. Considering the facts and circumstances of the entire case, the parties are directed to bear their own costs. Interim Order passed earlier stands vacated.
