Anynal Hoque @ Aynal Hoque Choudhury and 37 Ors v. The State of Assam and 7 Ors

ORDER 30-01-2023 Heard Shri A. R. Sikdar, learned counsel for the petitioners. Also heard Ms. G. Hazarika, learned Standing Counsel, Revenue Department for the respondent No. 1; Ms. S. Sarma, learned State Counsel for the respondent Nos. 2 and 3 and respondent Nos. 4 and 5 by Shri S. Dutta, learned Standing Counsel, P&RD.

¶2Considering the facts and circumstances of the case and also the fact that the writ petition is pending since the year 2014, the same is taken up for disposal at the admission stage.

¶3The petitioners claimed to be educated unemployed youth. They claimed to be have moved from the erstwhile Tarabari Bazar in the district of Barpeta which was eroded in the flood forcing the people to run their business in the adjacent village of Bahari Reserve in which various areas of ½ to 2 lechas were allotted to the petitioners. The petitioners claimed to have been paid certain taxes/cess to the Bazaar authority.

¶4Apprehending some kind of eviction, the petitioners had earlier approached this Court by filing WP(C) No. 3148/2013. The said writ petition alongwith few other writ petition Page No.# 7/8 on the same subject was disposed of by this Court vide a common judgment dated

23.08.2013 by directing them to make a representation before the authorities which would be taken into consideration. The grievance of the petitioners is that though such representation was submitted, no steps have been taken on the same. On the other hand, the petitioners could learn that in a meeting dated 23.06.2014, a proposal was made for setting up of a regulated market at Bahari.

¶5Shri Sikdar, the learned counsel for the petitioners submits that they are the flood affected persons and require special attention as they had lost their land in the flood which was in the erstwhile Tarabari area. The learned counsel for the petitioners also submits that they are in possession of the land in the present area for a long time and in the event a regulated market is constructed, preference is liable to be given to the petitioners for allotment.

¶6Ms. S. Sarma, learned State Counsel however submits that neither any legal right of the petitioner has been infringed nor they are vested with any such rights. The State Counsel however fairly submits that in the event a regulated market is set up, the cases of the petitioners, if are within the permissible limits would be considered alongwith other similarly situated persons. The learned State Counsel however disputes that the petitioner are in possession of the area in question and the actual process to allot the area of the Market is yet to begin.

¶7In this connection, the learned State Counsel has referred to the affidavit-in-opposition filed by the respondent No. 2 on 21.05.2015.

¶8Ms. G. Hazarika, learned Standing Counsel, Revenue Department as well as Shri S. Dutta, learned Standing Counsel, P&RD Department additionally submits that the dispute raised would be a factual one which perhaps cannot be adjudicated in a writ proceeding. So far as the prayer for consideration of the representation is concerned, the learned counsel for the respondents have submitted that unless the Court is convinced regarding existence of a legally enforceable right, a mechanical exercise should not be done to simply forward the representation.

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¶9The contentions advanced by the learned counsel for the parties have been duly considered and the materials placed before this Court have been duly examined.

¶10The principal basis of filing this petition of the petitioners is that they are flood affected persons and their original area have been completely eroded in the river flood for which they have to shift from the erstwhile Tarabari area to the Bahari Reserve wherein they are depending on their livelihood by opening of shops in the particular area on which a regulated market is sought to be constructed. The issue which would arise for determination is as to whether a direction can be given for consideration of the case of the petitioners in case such a regulated market is constructed.

¶11The assertion of the petitioners that they are having shops in the particular area has been categorically denied by the respondents in their affidavits. The prayer for allotment of land to each of the petitioners at the rate of 2 Katha (which Shri Sikdar, learned counsel admits to be a typographical error and it should have been 2 leches) will also not be a part of a legally forcible right as allotment of Government land is by a process wherein various pre conditions are to be met and it is in discretion of the Government which is to be exercised in a judicious manner.

¶12In view of the above, this Court is of the opinion that the present writ petition can be disposed of with a direction that there is no embargo on the part of the authorities to have a regulated market in the area concerned. However, vide allotting space in the said Market, the cases of the petitioners, if found to be otherwise eligible, be considered in accordance with law alongwith other similarly situated persons. If however, on facts the petitioners or any of them are able to establish that they are in possession of the land in question for a long period of time, some weightage may be given on that aspect.

¶13The writ petition accordingly stands closed.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010012962014 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3780/2014o ANYNALoHOQUEo@oAYNALoHOQUEoCHOUDHURYoando37oORS.o S/O-oLT.oALIoMIYA,oVILL.-oHARIPUR,oP.O.-oBAHARIHAT. 2:oIBRAHIMoSIKDAR oS/O-oLT.oABDULoKARIMoSIKDAR 3:oSAJAHANoBHUYAN oS/O-oLT.oKORBANoBHUYAN oVILL.-oBAHARI oP.O.-oBAHARIoHAT. 4:oTUTAoMIAH oS/O-oZAFARoALIoMIAH 5:oKHRSHEDoALI oS/O-oLT.oMINNAToALI 6:oLATIFoBHUYAN oS/O-oLT.oLALCHANDoBHUYAN 7:oABUoBAKKARoMALLICK oS/O-oLT.oSATTARoMALLIK 8:oABUoBAKKARoSIDDIQUE PageoNo.#o2/8 oS/O-oIMANoALI 9:oJAHEDULoISLAM oS/O-oIMANoALI 10:oABDULoROUF oS/O-oIMANoALI 11:oABDULoMALEK oS/O-oLT.oALIoMIYA 12:oJABBARoKHAN oS/O-oJAMALoKHAN 13:oABULoBASHAR oS/O-oLT.oNAYANoUDDINoAHMED 14:oNAZRULoISLAM oS/O-oSAMSULoBEPARI oVILL.-oBAHARIoRESERVE oP.O.oBAHARIoHAT. 15:oABDULoROUFoKHAN oS/O-oSATTARoKHAN 16:oLIADURoALIoKHAN oS/O-oLIAKAToALIoKHAN 17:oJIAURoRAHMANoKHAN oS/O-oLT.oBANIZUDDINoKHAN PageoNo.#o3/8 18:oSAROWARoSIKDAR oS/O-oLT.oABDULoKUDDUS oVILL.oandoP.O....... 19:oAFTADURoALIoKHAN oS/O-oLIAKAToALIoKHAN oVILL.-oBAHARIoMUSLIMPARA oP.O.-oBAHARIoHAT. 20:oMAKIBURoKHAN oS/O-oMAHARoKHAN oVILL.-oKAKDUWA 21:oNAZRULoSIKDAR oS/O-oLT.oUMARoALIoSIKDARo@oUMARoALI oR/O-oBANDALI oP.O.-oJATRADIA. 22:oTAZUDDIN oS/O-oLT.oMINNAToALI 23:oABDULoMALEQUE oS/O-oLT.oMOSHARAFoHUSSAIN oVILL-oHARIPUR 24:oSAJAHANoMIAH oS/O-oLAEoMUAZAMoMIAH oP.O.-oBAHARIoHAT. 25:oIBRAHIMoALI oS/O-oABDURoRASHID oVILL.-oGOMA 26:oAKBARoBHUYANo@oAGBARoKHAN oS/O-oKARIMoBHUYANo@oEDILoKHAN 27:oMANIRoHUSSAIN oS/O-oHAKIMoALI PageoNo.#o4/8 28:oMUFAZZALoHUSSAIN oS/O-oLT.oBARHANoALI oVILL.-oBAHARIoMUSLIMPARA 29:oKASHEMoSIKDAR oS/O-oAMIRoSIKDAR 30:oABDULoMANNANoALI oS/O-oLT.oAMZADoALI oVILL.-oGOMA oP.O.-oFULBARI. 31:oROKIBULoISLAM oS/O-oLT.oNABBESHoALI oVILL.-oGOMA 32:oABDULoRASHID oS/O-oLAToAFAZUDDIN oVILL.-oGOMA 33:oABDULoGAFUR oS/O-oLT.oKURBANoALI oVILL.oandoP.O.-oBAHARIoHAT. 34:oAYUBoKHAN oS/O-oLT.oMARTUZoKHAN oP.S.-oBAHARIHAT. 35:oHUSSAINoKHAN oS/O-oJAMALoKHAN 36:oABDULoMAZID oS/O-oLT.oALTAFoHUSSAIN 37:oBAHADURoISLAM oS/O-oLT.oMUSARAFoHUSSAIN Page No.# 5/8 VILL.- HARIPUR P.O.- BAHARIHAT. 38: SHANI ISLAM S/O- NAZRUL ISLAM BAHARI RESERVE P.O.- BAHARI HAT ALL ARE OF DIST.- BARPETA ASSAM VERSUS THE STATE OF ASSAM and 7 ORS. REP. BY THE SECY. TO THE GOVT. OF ASSAM, REVENUE DEPTT., DISPUR, GHY- 6. 2:THE DY. COMMISSIONER BARPETA P.O. and DIST.- BARPETA ASSAM. 3:THE CIRCLE OFFICER CHENGA P.O.- CHENGA DIST.- BARPETA. 4:BARPETA ZILLA PARISHAD REP. BY ITS PRESIDENT- P.O. and DIST.- BARPETA ASSAM. 5:THE B.D.C. CUM- SECRETARY GUMAFULBARI ANCHALIK PANCHAYAT VILL.- BHAGERPAR P.O.- GUMAFULBARI DIST.- BARPETA ASSAM. 6:THE ASSAM STATE AGRICULTURAL MARKETING BOARD REP. BY ITS CHEIF EXECUTIVE OFFICER RAMKRISHNA MISSION ROAD ULUBARI GHY- 7. 7:THE CHAIRMAN BAHARIHAT MARKETING COMMITTEE P.O.- BAHARI HAT DIST.- BARPETA Page No.# 6/8 ASSAM PIN- 781301. 8:THE LAND ADVISORY COMMITTEE BARPETA SUB-DIVISION REP. BY THE D.C. BARPETA P.O. and DIST.- BARPETA ASSAM PIN- 781301 Advocate for the Petitioner : MS.M DEKA Advocate for the Respondent : SC, P AND R.D. BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI