High Court Form No.(J) 2. Heading of Judgment in original suit. District: Darrang.

In the Court of Civil Judge,Darrang,Mangaldai.

Present: F.Sultana , A.J.S., Civil Judge, Darrang,Mangaldai.

The 27th day of February,2015.

Title suit No.7 of 2011. -Parties- Sri Biswajit Baishya S/OSri Mahendra Baishya of Ward No.5, Mangaldai Town Mouza-Chapai, P.O. & PS-Mangaldai, Dist.Darrang(). --- Plaintiff. -VERSUS- 1)State of Assam a)Represented by Secretary to the , Revenue Department, Dispur,-6. AND b)Represented by Secretary to the Government of Assam, Municipal Administration, Dispur, Guwahati-6.

2)Deputy Commissioner, Darrang, Mangaldai.

3)Circle Officer, Mangaldai Revenue Circle, P.O. & PS- Mangaldai, Dist-Darrang(Assam). --Defendants. 4)Mangaldai Municipal Board Represented by Chairman, PO and PS Mangaldai,Dist-Darrang(Assam) --Proforma defendant. This suit is coming on for hearing on 06/02/2015 in presence of:

Sri R.C.Singh --Advocate for the plaintiff.

Sri H.R.Saharia - -Advocate for the defendant No.1 to 3 Sri J.Deja – Advocate for the defendant No.4.

And having stood for consideration to this day, this Court delivered the following judgment:

Contd.P/2 (2) JUDGMENT .

(1) This is a suit for declaration and permanent injunction.

(2) The case of the plaintiff in brief is that the plaintiff as an unemployed youth applied before the Mangaldai Municipal Board to put up one gumty on the schedule land and Mangaldai Municipal Board by its letter No.MMB/86/1777 dated 3/10/86 allowed the plaintiff to construct a gumty on the schedule land and allotted the schedule land in his name.

(3) It is stated that Mangaldai Municipal Board by its letter NO.MMB/T/2001/2030-31 dated 10/08/2001 settled 8 ft. x 10 ft. of land in the name of the plaintiff allowing him to construct pucca structure fixing Rs.5/- as annual rent per square feet of land and accordingly the plaintiff constructed pucca room with CI sheet roofing measuring 8 ft. x 10 ft by spending around Rs.1,00,000.00. The plaintiff also developed the schedule land by filing at least 10 ft. of earth and also constructed one pucca wall on side of the riverbed to support the filling earth and in such process the plaintiff spent about Rs.90,000.00. The plaintiff has also improved the front side of the road at a cost of Rs.3,000.00. The plaintiff is an unemployed youth. He deals various commodities depending upon the season of the market to earn his livelihood. The plaintiff is solely dependant on the income derivered from various business carried out in the room constructed upon the schedule land. The plaintiff has been paying regularly the land rent as fixed by the Mangaldai Municipal Board from time to time. The plaintiff has been peacefully occupying the room with due permission from Mangaldai Muncipal Board. The land upon which his gumty is situated is part of the land vested by the Government to the Mangaldai Municipal Board.

Contd.P/3 (3) (4) It is stated that on 24/12/10 Circle Officer, Mangaldai Revenue Circle along with his Revenue staff forcibly tried to evict the plaintiff from the schedule land, but on strong intervention of the public as well as the Municipal Authority the Circle Officer could not evict the plaintiff from the schedule land. But threatened the plaintiff to remove his gumty from the schedule land, failing which he will be evicted forcibly by engaging J.C.B/Bulldozer if necessary.

(5) It is further stated by the plaintiff that the plaintiff has been enjoying the schedule land for more than 24 years by spending huge amount. The plaintiff has got no other place to start his business. If the plaintiff is evicted from the aforesaid land the entire family of the plaintiff will be ruined. The plaintiff apprehends that he may be evicted at any time from the schedule land.

(6) That cause of action for the suit arose on 24/12/2010 and on every subsequent date thereafter within the jurisdiction of this Court. (7) Hence, the plaintiff has been compelled to file the suit for declaration and permanent injunction.

(8) The defendant No.1,2,and 3 contested the suit by filing joint written contending inter alia that there is no cause of action for the suit, that the suit is barred by law of limitation and that the suit is bad for non joinder of necessary parties. It is denied by the answering defendants that the plaintiff is an unemployed youth applied before the Mangaldai Municipal Board to put up one gumty on the schedule land and Mangaldai Municipal Board by its letter No.MM/86/1777 dated 03.10.86 allowed the plaintiff to construct a gumpty on the schedule land and allotted the schedule land in his name.

Contd.P/4 (4) (9) It is stated by the answering defendants that the suit land is a Govt. land and the same has not been alloted to Mangaldai Municipal Board as such said Board has no authority to allow the plaintiff for construction of shop. The Mangaldai Municipal Board has no power to settle land and to collect rent threof to the plaintiff as the schedule land is a Govt. land. The statements that the plaintiff constructed one pucca room with CI sheet roofing measuring 8 ft. x 10 ft. by spending amount of Rs.1,00,000.00 is also denied by the defendants.

(10) It is also denied by the answering defendant that the plaintiff developed the schedule land by filing at least 10 ft. of earth, the plaintiff constructed one pucca wall on side of the riber be to support the filling, the plaintiff bears an expenditure of Rs.90,000.00, the plaintiff has improved the front side of the road at a cost of Rs.30,000.00.

(11) It is stated by the answering defendants that the schedule land is not the Municipal land, the Mangaldai Municipal Board has no right to fix rent and to collect the same from the plaintiff. The schedule land has not been vested with the Muncipal Board by the government.

(12) It is also denied by the answering defendants that on 24/12/10 the Circle Officer, Mangaldai Revenue Circle along with his staff forcibly tried to evict the plaintiff from the suit land. The District authority took step for eviction eviction from schedule land after obsering all formalities as per provision of Assam Land and Revenue Regulation,1886 and on the basis of the notice, eviction drive was carried out by the Circle Officer, Mangaldai.

Hence, the defendant No.1,2, and 3 prayed to dismiss the suit of the plaintiff. Contd.P/5 (5) (13) The defendant No.4 also contested the suit by filing written statement along with counter claim contending inter alia that the Municipality Board has no power to settle the land. It is a fact that in the year 1996 the administration of the Mangaldai Municipality Board was taken by the Govt. of Assam and Administrative Officer was appointed to run the administration of the Board. The then Executive Officer (he was also holding the Office of the Circle Officer of Mangaldai Revenue Circle) leased out the land measuring 25 x 15 feet of Dag No.1788 to the plaintiff. The present annual rent of the aforesaid land is fixed as Rs.3000/- per year and since then the plaintiff has been regularly paying the rent to the MMB. It is stated that the land is not vested by the Govt. to the Municipality Board. However, efforts has been made for the allotments of suit land in the name of Mangaldai Municipality Board. The resolution had taken by the M.M.B. urging the Govt. to allot the suit land in the name of Mangaldai Municipality Board as the Executive Officer of the M.M.B. has allowed the plaintiff to carry out the business activities in the suit land way back in 1996. Hence, the defendant No.4 prayed to dismiss the suit of the plaintiff.

(14) The answering defendant No.4 in the counter claim stated that in the year 1996 the administration of the Mangaldai Municipality was taken over by the Government of Assam U/S 298 of the Assam Municipal Act,1956 and an Executive Officer was appointed to carry out day to day works of the M.M.B.. During the tenure of the aforesaid Executive Officer an order was passed and he accorded permission to the plaintiff to construct room to carry out business from the suit land on 19/11/1996. Since 1996 the Mangaldai Municipality Board collected rent from the plaintiff.

(15) It is also stated that from the year 2010 Mangaldai Municipality Board urged upon the Government of Assam to formally allot Contd.P/6 (6) the suit land in their name vide application dated 29/04/2010 and 24/12/10 and the said application is still pending before the Deputy Commissioner,Darrang, Mangaldai.

(16) Hence, it is prayed to pass permanent injunction for maintaining statusquo as on 24/12/2010 in respect of the suit land to the plaintiff and for declaration that the M.M.B. has acquired the possessory right over the suit land and to give direction to the Deputy Commissioner, Darrang to dispose of the application filed by the M.M.B. for allotment of the suit land.

(17) On consideration of the pleadings of the parties my learned predecessor-in-Office was pleased to frame the following issues-- (1) Is there any cause of action for the suit? (2) Whether the suit is barred by limitation? (3) Whether the plaintiff has acquired possessory right over the schedule mentioned land of the plaint ? (4) Whether the plaintiff is entitled to a decree as prayed for? (5) Whether the defendant No.4 has acquired the possessory right over the suit land? (6) Whether the defendant No.4 is entitled to a decree as per prayer of the counter claim? (7)To what relief/reliefs the parties are entitled to ?

(18) In support of the plaintiff's case the plaintiff has examined 4(four) witnesses. The plaintiff has also exhibited certain documents. On the other hand, the defendant has adduced one DW and certain documents in support of the case of the defendant No.4. (19) I have carefully gone through the evidence on record, both oral and documentary and also heard argument advanced by the learned counsel of both the sides. Contd.P/7 (7) DISCUSSION, DECISION AND REASOMNS THEREON :

(20) For discussion and decision on the points for determination, I have heard the Learned Counsels for both sides and also, scrutinized the evidence of all the witnesses. I have also, carefully scrutinized the documents submitted by both the parties.

ISSUE NO.1

(21) Let us first decide the Issue no. 1 at the outset of our discussion. The Plaintiff has stated that, he was allowed to construct a Gumty shop, on 03-10-86, by the Municipality Board, at his prayer, considering his unemployment, vide its letter no. MMB/86/1777. The Boar, also, allotted the land in his name. Thereafter, the the Plaintiff constructed his Gumty shop and started his business. In the course of time the Plaintiff developed the Gumty and its surrounding. As per letter no. MMB/T/2001/2030, the Mangaldoi Municipal Board, settled a plot of land in the name of the Plaintiff, @ Rs.5/- per square Feet, as annual rent. Accordingly, the Plaintiff constructed a pucca house over the said land and carried on his business. But, according to him the defendant no. 3, along with his staff tried to forcibly tried to evict him from the suit land, although he failed in his attempt, on strong resistance from the public. This contention of the Plaintiff shows that there is certainly cause of action for the suit. Accordingly, the Issue is decided in affirmative .

ISSUE NO. 2 (22) This issue has been framed at the insistence of the Defendant. But, during the course of trial neither the defendant has neither stated in his written statement regarding any any allegation about the suit being barred by Law of Limitation nor he adduced any evidence in this regard. The learned Counsel for the defendants have also, not Contd.P/8 (8) advanced any argument with respect to this. On the other hand, From the averments of both the Plaintiff and the defendants show that, the Plaintiff is claiming his possessory right over the suit land, for last 30 years in the suit land. Hence, it can be said that the suit is well within time and accordingly, not barred by law of limitation.

ISSUES NO. 3 and 4 :

(23) As these issues are related to each other, I intend to take up together for convenience of discussion. The Plaintiff has stated in his Plaint that the Municipal Board, Mangaldoi, allotted a plot of land measuring, 8ftx 10 ft, and settled the same vide their letter no. MMB/T/2001/2030-31, dated 10-08-2001. The rate of annual rent was settled at Rs.5/-, per square feet of area, and also, allowed to construct a pacca ghumti over it. Accordingly, the Plaintiff expended Rs. 1,00,000/- for development of the plot of land allotted to him and constructed a concrete wall and also, a pacca room with tin roof. It has been further stated by the Plaintiff that, he has been regularly paying the rent as fixed by the Municipal Board. The plaintiff has exhibited some receipt of the rent paid to the Board, by him. It has been further stated that, the land which was allotted to the Plaintiff was initially settled to the Municpal Board, Mangaldoi. The Plaintiff while deposing before the Court as PW-1, has stated that, the Circle Officer, Mangaldoi Revenue circle, along with his staff tried to evict the Plaintiff from the suit land, without any prior information. He has also, stated that although due to strong resistance from public, the Circle Officer, could not succeed in his attempt. The Circle Officer, threatened him that if he did not remove his gumty, from the said plot of land, it will be removed using Bulldozer etc. In his cross examination he has stated that his relation with the Municipal Board, is that of tenant -landlord. According to PW-1, the suit land belongs to the Municipal Board, Mangaldoi, but, he failed to submit any document in Contd.P/9 (9) support of this contention. PW-1, brought on record Ext-1, allotment order given to him by the Mangaldoi Municipal Board; Ext-2,3,4 and 5, are receipts of tax paid to the Municipal Board;, Ext-6 and 7, are the application given under the RTI Act and its answer given by the Mnagaldoi Municiapl Board.

(24) The next witness examined by the Plaintiff side is the father of the Plaintiff, Sri Mahendra Nath Baishya, PW-2. PW-2, corroborated the evidence of the Plaintiff. PW-3, Sri Dayal Sutradhar and PW-4, Sri Bhabtosh Talukdar, has also, corroborated the evidence of the Plaintiff. From the evidence of all the witnesses it transpires that, the suit land belonged to Municipal Board, Mangaldoi and the Plaintiff was a tenant on the said suit land under Municipal Board. They have also, asserted regarding possession of the Plaintiff for last 25 years. In this regard the Learned Counsel for the Plaintiff has argued that, the Municipality Board was created, by the State Govt. under section 4 of the Assam Municipality Act 1956, and accordingly, as per section 6 of the said Act, any local area included in the Municipality Board, by a notification, published u/s 5(2) all the provisions of the Act, and all rules, bye laws made, orders directions and notices issued thereunder and in force, through the Municipality at the time when the local area is so included, shall apply, thereto unless the state Govt. other wise direct by a notification. Since, there was no notification in this regard, the existing rules will apply. Moreover, the Ld. Counsel has also, argued that, even if the contention of the Govt. is admitted that, the suit land is a Govt. Land, still the Govt. cannot evict the Plaintiff by force. In this regard the Ld. Counsel for the Plaintiff has submitted a decision of the Hon'able Bombay High Court, reported in AIR 1996 Bombay 98, wherein it has been held that, the rightful owner of a property, cannot evict the person in possession by force and he has to follow due course of law for eviction. Contd.P/10 (10) (25) From the evidence of the Plaintiff's witnesses it is clear that admittedly, the Plaintiff is the tenant under Mangaldoi Municipal Board. Except stating that the land was allotted to the Mangaldoi Municipal Board, the Plaintiff has not been able to produce any document in support of his contention. According to the provisions of Assam Land Revenue Regulation the Government is the actual owner of any plot land within the territory of the State. DW-1, Anowar Hussain Tax Daroga of the Mangaldoi Municipal Board has deposed before the Court that, the suit land is not vested by the Govt. to the Mangaldoi Municipal Board. He has further admitted that, although by taking resolution, the Mangaldoi Municipal Board has been making efforts for settlement of the suit land in their favour, but, it is not yet done. He has also, stated that, the Mangaldoi Municipal Board had applied for the same vide letter, no. MMB.83/2010/334 dated 29 .04.2010 and again, on 24-12-2010, before the defendant no.2, for allotment of the suit land in their favour. Ext-A, is the said letter, dated 24.12.10. Ext-B, is another such letter issued by the Minicipali Board, praying for allotment of land in their name. But, the petitions are still pending before the Defendant no.2. D.W-1, has admitted that the suit land is a Govt. land and there is no patta in respect of the said land. He has further stated that, the land under the Municipal Board were originally Govt. land, but, after constitution of the Municipal Board, the said land came under the Municipal Board and the Municipal Board has been allowing different persons to stay on rent and also, getting tax. He further stated that, the Govt. has not issued any letter asking them to return the suit land to the Govt. Ld. Counsel for the Defendant no. 4, that the Plaintiff was allowed to stay on the suit land on rent and as such he cannot claim possessory right over the suit land. On the other hand Ld. Counsel for the State, has argued that, since the suit land is a Govt. land, defendant no. 4 does not have any right to rent it to anyone, and as such the Plaintiff is liable to be evicted from it at any time. Ld. AGP, has also argued that at no point of time the suit land was Contd.P/11 (11) allotted to the Mangaldoi Municipal Board, and hence, question of returning of the same by Municipal Board does not arise.

(26) Moreover, it is also, apparent from the evidence on record that the Plaintiff is a tenant under the Municipal Board, as he has been admittedly paying rent to the Municipal Board. From the discussion made above it is quite clear that it has been established by both oral and documentary evidence that, the suit land which the Plaintiff is claiming is originally Govt. land. Although the Municipal Board prayed for allotment of the land to it, the same is not yet allowed. Since, admittedly Municipal Board, does not have any right over the suit land, it had no right to let it to anyone.

(27) At last but,not t least, it is provided by section 6 of the Specific Relief Act, that, If any persons is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him, may by suit recover possession thereof notwithstanding any other title that may b st up in such suit (2) No such suit under this section shall be brought –(a) after expiry of six months from the at of dispossession ; or (b) against t Govt. Hence, in view of this the suit is barred an accordingly, not maintainable.

(28) Accordingly, it is decided that the Plaintiff does not have any possessory right over the suit land and hence, he is evictable from the suit land and not entitled to get any decree.

ISSUES NO. 5 and 6 : (29) As both these issues are correlated, they are taken up together for discussion. From the oral as well as the documentary evidence on record it is established that the suit land is actually Govt. land and that it has not yet been allotted to the Mangaldoi Municipal Contd.P/12 (12) Board. Although Mangaldoi Municipal Board has applied for allotment of the said plot of land to it , but, the Govt, has not yet allotted it to the Board. Hence in view of the same it cannot be said that the Mangaldoi Municipal Board has acquired any kind of right whatsoever, over the suit land. Merely falling under the Mangaldoi Municipal Board does not also, mean that the Board has got right over the area. Accordingly, both these issues are decided against the defendant no.4.

ISSUES NO. 7:

(30) From the decisions reached under the aforesaid issues, there is no option but, to hold that neither the plaintiff nor the defendant no.4 is entitled to get any decree or relief as claimed for and this issue is decided accordingly.

O R D E R . (31) In the result, the suit of the plaintiff as well as counter claim of the defendant No.4 are dismissed on contest without any cost. Draw up a decree accordingly. Given under my hand and seal of this Court this 27th day of February,2015. Dictated and corrected by me and each page bears my signatures (F.Sultana) Civil Judge, Darrang,Mangaldai. Civil Judge, Darrang,Mangaldai.

Contd.P/13 (13)

APPENDIX

Plaintiff's witnesses:

I) PW1Sri Biswajit Baishya. ii) PW2 Sri Mahendra Nath Baisya iii)PW3 Sri Dayal Sutradhar. iv)PW4 Sri Bhabatosh Talukdar.

B)Defendant's witnesses: I) DW1 Md. Anowar Hussain.

C)Plaintiff's exhibits: I) Ext.1 allotment order. ii) Ext.2,3,4 and 5 tax paying receipts. iii)Ext.6, RTI application. iv)Ext.7, answer in respect of RTC Act.

D)Defendant exhibits i)Ext. A, letter dated 24.12.10 ii)Ext.B letter dated 29.4.10.

Dictated and corrected by me.

Civil Judge, Darrang,Mangaldai.