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Wp(C) 4534/2010

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Wp(C) 4534/2010 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) No. 4534 OF 2010 Smt. Jyotsnarani Poddar, W/o Late Jasoda Nandan Poddar, Resident of Masterpara, Digb oi Town, P.S. – Digboi, District – Tinsukia, Assam. …. Petitioner. VERSUS 1. The State of Assam, Represented by the Secretary to the Government of Assam, Revenue & Land Settlement Department, Guwahati, Assam. 2. The Deputy Commissioner, Tinsukia. 3. The Sub-Divisional Officer (Civil), Margherita, District- Tinsukia, Assam. 4. Sri Ningthoujam Geoffrey, The Sub-Divisional Officer (Civil), Margherita, District- Tinsukia, Assam. 5. Indian Oil Corporation Ltd. (Assam Oil Division), Represented by the Executive Director, P.O. & P.S.- Digboi, District-Tinsukia, Assam. 6. The Chief Administrative Manager, Indian Oil Corporation Ltd. (Assam Oil Division), P.O. & P.S.- Digboi, District-Tinsukia, Assam. 7. The Deputy Manager (Estate and Law), Indian Oil Corporation Ltd. (Assam Oil Division), P.O. & P.S.- Digboi, District-Tinsukia, Assam. …. Respondents. BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY For the petitioners : Mr. C. Baruah. … Sr. Advocate. Mr. U.J. Saikia, Ms. M. Saikia. .... Advocates. For the respondents 1 to 3 : Mr. J. Handique. … GA For the respondents 5 to 7 : Mr. S.N. Sarma … Sr. Advocate. Mr. A. Sarma, Mr. A. Jahid. … Advocates. Date of hearing and Judgment : 8.5.2014. JUDGMENT AND ORDER Heard Mr. C. Baruah, the learned Senior Counsel appearing for the petitioner. The respondent Indian Oil Corporation Ltd. (Assam Oil Division) [in short IOCL(AOD)] and their officers (respondents 6 & 7) are represented by the Senior Counsel Mr. S.N. Sarma. The respondents 1, 2 & 3 are represented by the learned Government Advocate Mr. J. Handique. WP(C) No. 4534/2010 Page 1 of 5 2 2. The petitioner is the owner of 8 Lechas of land covered by Dag No.1436, Periodic Patta No.78 by the side of the Digboi-Pengree road which he purchased in the year 1982 from one Lakheswar Gogoi. Alleging unauthorized demolition of his shop on the said land on 13.7.2010 by the State officials and the IOCL (AOD), the petitioner prays for restoration of possession and compensation for demolition. 3.1 Mr. C. Baruah, the learned Senior Counsel submits that the petitioner put up a shop on his purchased land with due permission from the Digboi Town Committee and since he as in permissible occupation, the respondents could not have forcibly demolished his shop and evicted him. 3.2 The learned Senior Counsel also makes an alternate argument that even if the demolished structure is construed to be constructed on land of the IOCL, it can’t be forcibly demolished and since this was done on 13.7.2010, the petitioner should be restored back possession. In support of his argument, the Senior Counsel relies upon Bishan Das vs. State of Punjab reported in AIR 1961 SC 1570. 3.3 The final contention of the petitioner is that the shop in question was in existence for several decades with full knowledge of the IOCL authorities and therefore if the shop was required to be removed for widening of the PWD road, compensation should have been paid to the petitioner through due process . 4.1 For the respondents IOCL (AOD), Mr. S.N. Sarma, the learned Senior Counsel firstly submits that the petitioner’s shop exrtended beyond his own land (covered by Dag No.1436 under Periodic Patta No.78) and the demolition was of the illegal front portion of the shop, abutting on to the PWD roadside on the IOC’s land in Dag No.557 under Periodic Patta No.1 and therefore it is argued that the petitioner is an encroacher of the Company’s land and moreover the demolished structure was not legally constructed. 4.2 Projecting that only the unauthorized front portion of the shop was demolished, Mr. Sarma refers to the construction permission granted by the Digboi Town Committee on 19.6.2004 (Annexure-B) to show that WP(C) No. 4534/2010 Page 2 of 5 3 permission was for within the petitioner’s own land (Dag No.1436 under Periodic Patta No.78) and the town Committee’s permission doesn’t authorize the petitioner to make construction over IOCL’s Dag No.557, Patta No.1. Moreover since construction was permitted to be made only w.e.f. 16.4.2006, the Senior Counsel submits that the petitioner’s contention of a long standing shop for last several decades is entirely without any foundation. 4.3 Referring to the petitioner’s own letter dated 6.6.2009 (Annexure-C) addressed to the SDO (Civil), Margherita, the respondents contend that the shop owner knew of the road widening exercise by the PWD and therefore the claim made that the evictee was unaware of the joint inspection carried out on 2.6.2010 which concluded that the petitioner’s unauthorized structures are on the IOC’s land covered by Dag No.557, Periodic Patta No.1, is rebutted by the respondents. 4.4 The Inquiry Report given by the Addl. D.C., Tinsukia on 27.9.2010 in the petitioner’s case filed by her before the Assam Human Rights Commission was read in detail by the IOCL’s lawyer. This report was preceded by notice and hearing to all concerned including the petitioner and Mr. Sarma submits that the Inquiry Report revealed that the front portion of the petitioner’s shop on the Digboi-Pengree Road was abutting on to the roadside land of the IOC, covered by Dag No.557, Periodic Patta No.1 and therefore since demolition of only that extended portion standing on the IOC’s land was carried out the evictee can’t claim any compensation. The inquiry reports revealed that all the 123 property owners in the concerned area had voluntarily removed their structures abutting on to the PWD road for the road widening exercise and since the petitioner didn’t voluntarily remove the unauthorized structure despite receipt of notice dated 29.6.2009 from the IOCL, the authorized structure which stood out in the concerned roadside space, was only demolished on 13.7.2010. 5. Mr. J. Handique, the learned Government Advocate in his turn submits that the road widening exercise was completed long back and since the demolition of only the unauthorized structure was carried out on 23.7.2010, restoration of possession now is an impossibility. Moreover only the unauthorized portion of the shop on the IOC’s land was demolished and WP(C) No. 4534/2010 Page 3 of 5 4 the remaining shop structure within the petitioner’s land covered by Dag 1436, Periodic Patta No.78 is still intact in the same area. Therefore the petitioner’s claim for damage is contended to be unjustified by Mr. Handique. 6. On the issue of legality of the construction with due permission of the Digboi Town Committee, the construction permission given on 6.5.2004 (Annexure-B) shows that the authority allowed construction of the shop on the petitioner’s own land covered by Dag No.1436, Periodic Patta No. 78. This permission doesn’t however allow extension of construction on the roadside land of the IOC covered by Dag No.557, Periodic Patta No.1. Therefore, the demolition of the illegal portion on the IOC’s land can’t in my view be assailed on the basis of the construction permission given to the petitioner by the Digboi Town Committee. 7. For considering the plea of restoration of possession on the ratio of Bishan Das (supra), it is necessary to take note of the facts in that case where the Supreme Court was examining the dispossession of the Dharamshala which stood on Government land. The Court having found that the Dharamshala was constructed with due permission of the State authority, directed restoration of the disposed property. But in this case, the demolition exercise was limited to the unauthorized portion not on Government land but on the land of the IOCL (AOD) and the IOCL hadn’t permitted the encroacher to extend his shop on to IOCL land. Even the Digboi Town Committee’s permission to the petitioner was confined to petitioner’s own land covered by Dag No.1436, P.P. No.78. Therefore this is not a case of demolition of permitted structure. Under this backdrop I hold that restoration of possession can’t be granted to the petitioner by applying the ratio of Bishan Das (supra) since the demolished portion of the shop was on IOCL’s land and the Company never granted construction permission to the petitioner. 8. In the eviction notice of 29.6.2010 (Annexure-D) sent by the IOCL, it was clearly indicated that the petitioner is encroaching on the Company’s land covered by Dag No.57 under P.P. No.1 and removal of the unauthorized structure was requested through that notice. But since the WP(C) No. 4534/2010 Page 4 of 5 5 petitioner failed to voluntarily remove the unauthorized portion to facilitate the widening of the PWD road and finding that only the petitioner’s unauthorized extension was obstructing the road widening exercise at that stretch of the PWD road (since other 172 land owners had voluntarily demolished their illegally extended portion), the impugned demolition exercise was carried out on 13.7.2010. Therefore since the demolished portion was illegally constructed by the petitioner beyond her own Patta land and the demolition was carried out for a public purpose i.e. widening the PWD road, I do not see any basis to order restoration/compensation to the petitioner.
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