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Wp(C) 977/2009

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Wp(C) 977/2009 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM & ARUNACHAL PRADESH) WP(C) 977/2009 1. Pradip Kumar Barman Village Hengrabari, Mouza Beltola, Guwahati, District Kamrup, Guwahati, Assam. 2. Tuntun Gogoi Village Hengrabari, Mouza Beltola, Guwahati, District Kamrup, Guwahati, Assam. 3. Rabindra Barman, Village Hengrabari, Mouza Beltola, Guwahati, District Kamrup, Guwahati, Assam. 4. Kanika Barman, Village Hengrabari, Mouza Beltola, Guwahati, District Kamrup, Guwahati, Assam. 5. Dipali Chakravorty, Ambikagiri Nagar, Guwahati, District Karmup (Metro), Assam. 6. Makhan Chandra Chakravorty, Ambikagiri Nagar, Guwahati, District Karmrup (Metro), Assam .... PETITIONERS -versus- 1. The State of Assam through the Commissioner and Secretary, Guwahati Development Department, 2 Government of Assam, Assam Secretariat, Dispur:6, Assam. 2. The Principal Secretary, Revenue (Settlement) Department, Government of Assam, Dispur, Guwahati, Assam. 3. The Guwahati Metropolitan Development Authority through the Chief Executive Officer, Guwahati Metropolitian Developemnt Authority, Bhangagarh, Guwahati-781005, Assam. 4. The Deputy Commissioner, Kamrup (Metro), Guwahati, Assam. ....RESPONDENTS BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY HON’BLE MR. JUSTICE MANOJIT BHUYAN Advocates for petitioners :: Mr. P.K. Tiwari, Sr. Counsel Mr. S. Kichu, Advocate Mr. R.J. Das, Advocate Advocates for the Respondents:: Ms. B. Goyal, GA, Assam Ms. M. Hazarika, GMDA Date of hearing :: 01.03.2016 Date of delivery of Judgment :: 01.03.2016 JUDGMENT & ORDER (Manojit Bhuyan, J) 1. There is no dispute and debate over the ownership of the land in favour of the petitioners covered by respective Patta and Dag Nos. at village Hengrabari 3 under Beltola Mouza, Guwahati. In fact, on separate applications made by the petitioners to the Deputy Commissioner, Kamrup (M) for settlement of land, the matter was processed and a hierarchy of Revenue Officials certified the proposed land for settlement as being plain and vacant land and not falling within the description of waterbodies. Eventually, three orders of settlement came to be issued by the Revenue (Settlement) Department indicating settlement of land measuring 1 katha 10 lechas each covered by Dag No. 602/989 (Pt) of Village- Hengrabari under Beltola Mouza. The first order of settlement dated 26.04.2006 was issued jointly in favour of the petitioner Nos. 3 and 4, the second order of like date i.e. 26.04.2006 in favour of the petitioner Nos. 1 and 2 and the third order of settlement dated 25.04.2006 in favour of the petitioner Nos. 5 and 6. In terms of the said orders of settlement, the Deputy Commissioner, Kamrup (M) was asked to handover possession of the land to the person concerned with further intimation that the land records be corrected and patta be issued after realisation of the premium in full. In consequence thereof, necessary premium were paid by the petitioners whereupon, respective pattas were issued in due course. Whereas the petitioner Nos. 1 and 2 were allotted Patta No. 218, the petitioner Nos. 3 and 4 were issued Patta No. 279 and petitioner Nos. 5 and 6 were issued 285, all covered by Dag No. 602/989 (old). 2. The petitioners claim to be residing over their respective patta lands by constructing residential structures. On record, permission for construction of building issued by the Guwahati Metropolitan Development Authority (GMDA) is only available in respect of petitioner Nos. 1 and 2. However, it is the case of the rest of the petitioners that they have constructed residential houses and are residing over their respective patta lands at village Hengrabari under Beltola Mouza. 3. The cause of action for instituting the present proceedings, in a joint capacity, arises upon the enactment of the Guwahati Waterbodies (Preservation and Conservation) Act, 2008 which was brought into force w.e.f. 07.08.2008. In Section 3 of the said Act it has been categorically laid down that the areas of land specified in Schedules I, II, III and IV of the Act shall be waterbodies and by virtue of Section 4 thereof it is prescribed that the area of land specified in the 4 aforesaid schedules are to be used as waterbodies and no person after coming into force of the Act shall- (i) undertake any activities including the filling up of waterbodies which may cause damage or reduce the size of the waterbodies; (ii) construct or erect any structure in the waterbodies; (iii) dump or throw solid waste or garbage in the waterbodies; (iv) extend or reinforce of any building standing upon the waterbodies; (v) carry out any kind of business except fish curing, aqua culture, conservation measure and flood control measures, that too with the specific previous permission of the Competent Authority. The penalty for violation of any of the provisions under Section 4 is prescribed under Section 6 of the said Act. 4. At Schedule-III appended to the Act, the Dag No. 602 under revenue village Hengrabari, amongst others, have been declared as waterbodies within the definition of Section 2(e) of the Act. The petitioners being impacted by the legislative enactment declaring their patta land as waterbodies with prohibition from undertaking activities over their patta land, prays for declaring Section 3 read with Schedule-III of the Act as unreasonable to the extent of declaring Dag No. 602 as waterbodies. 5. Mr. P.K. Tiwari, learned senior counsel representing the petitioners makes forceful submission that the applicability of Section 3 and Schedule-III of the Act cannot be extended in so far as the land of the petitioners are concerned and having regard to the facts of the case the particular provisions of the legislative enactment needs to be relaxed qua the petitioners by application of the doctrine of exclusion and severability. 6. During the course of hearing Mr. P.K. Tiwari makes submission that the challenge to the legislative enactment, as indicated above, can however stand for appreciation in future as because, the affidavit-in-opposition filed by the State Respondents is presently sufficient to render the immediate relief to the petitioners. 5 7. Ms M. Hazarika, learned senior counsel representing GMDA submits that the role of the authority is only limited to the extent of issuing permission for construction of building. In fact, the GMDA had indeed issued No Objection Certificate allowing the petitioners Nos. 1 and 2 to construct building on their allotted patta land. 8. Ms. B. Goyal, learned State Counsel makes reference to the affidavit-in- opposition filed on behalf of the Guwahati Development Department and submits that the stand of the Government indicated therein requires no intervention of this Court in the matter in hand. She further submits from the affidavit-in- opposition that the State Government at present has no agenda to disturb the petitioners in any way, inasmuch as, the Act, 2008 do not intend to disturb any title and/or entitlement to any land, save and except, restricting construction of building thereon. It is contended that mere ownership of land would not allow any one to construct any type of building on the plots earmarked as waterbodies. The use of land has to satisfy to the extent of permissibility allowed by the Master Plan for Guwahati Metropolitan Area (Development of Land and Zoning Regulation) and Building Bye-Laws, 2014. Ms. Goyal also submits that the Act does not take away the title or possession of any land holder or settlement holder and in case any action is taken, which may perhaps affect any right or title, the same shall be done only in accordance with law. 9. A summation of the pleaded stand of the State Respondent is that the title/ownership and possession of the petitioners over their respective land will stand undisturbed and the Act, 2008 will not impede any restriction on their rights, save and except for the further use of the land in question. The stand as indicated in the affidavit-in-opposition is taken on board. Mr. Tiwari also submits that justice will be done if the State Respondents do not take any adverse action affecting the title, ownership and possession of the petitioners over their respective patta lands located at village Hengrabari under Beltola Mouza. It does not require repetition that the reliefs sought for by the petitioners at this stage is squarely made and answered in the affidavit-in-opposition field by the State Respondents. 6 10. Having noticed the facts above and the respective stands of the parties, this writ petition would not detain this Court for adjudication of the case to any further date. Accordingly, a direction is made to the State Respondents to effect its stand as indicated in the affidavit-in-opposition in letter and spirit without disturbing the title, possession and ownership of the petitioners over their respective lands as indicated above. In so far as the challenge to the legislative enactment is concerned, this Court refrains from addressing any issue, leaving it for due appreciation in an appropriate case in future. 11. Resultantly, this writ petition stands disposed of. JUDGE JUDGE sds .
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