Ashyutananda Hazarika and 31 Ors v. The Union of India and 7 Ors

ORDER

17.02.2023 Heard Shri S. Borthakur, learned counsel for the petitioners. Also heard Shri RKD Chodhury, learned Dy. SGI representing the Union of India for the respondent nos. 1, 3 & 4; Ms. G. Hazarika, learned Standing Counsel, Revenue Department for the respondent no. 2; Shri R. Talukdar, learned State Counsel for the respondent nos. 5 to 7 and Shri D. Gogoi, learned Standing Counsel, Forest Department for the respondent no. 8.

¶2In view of the development in this case including the report of the learned Advocate Commissioner, this writ petition is taken up for disposal today.

¶3The petitioners claimed to be permanent residents of Pub-Batahghuli area under Satgaon Police Station in the district of Kamrup (M). The petitioners claimed that they along with their family members are in use of a road which however falls in the land under the defence forces. The petitioners claimed that they have approached the authorities to transfer the land covered by the Road for public utility which however was not paid any heed to. The grievance of the petitioners is that a wall is being constructed to close the road, in which case petitioners claimed that they would suffer irreparable loss and injury. The case of the petitioners is that there is no other alternative route and if it is blocked by permanent structure, grave hardship would be caused to them.

¶4Shri Borthakur, learned counsel for the petitioner submits that though he would not dispute regarding the ownership of the land in question, he submits that greater public interest is involved in allowing the road to be used by the inhabitants of their area as it is the only access of the petitioners and their family members.

¶5On the other hand, Shri RKD Choudhury, learned Dy. SGI by referring to the affidavit-in-opposition filed on 20.07.2021 has submitted that the projection made by the petitioners is not correct. By referring to the said affidavit-in-opposition, the Page No.# 9/10 learned Dy. SGI has referred to the photographs and the map to show that there are alternative routes available and there being no dispute that the land in question is defence land, interest of public would require that such land should be made encroachment free and also free from any trespassing. The respondent no. 5 has also filed an affidavit on 25.08.2021. The petitioner has also filed rejoinder affidavit.

¶6When this matter was taken up for consideration on 04.01.2023 and this Court being confronted with the claims of the rival parties which involved factual determination, Shri RK Bhatra, a practicing advocate of this Court was appointed as Advocate Commissioner who was requested to make a local inspection / spot verification and submit the report. The said appointment was made with the consent of the parties.

¶7Subsequently, the learned Advocate Commissioner has filed the report on

06.02.2023, after an elaborate discussion in which the relevant photographs have also been annexed, the following conclusion has been put on record by the learned Advocate Commissioner: "During my visit the petitioners and their counsel present, or the local people present could not take me to a plot/ residential houses, where there was no access road or access had been blocked due to construction of the permanent wall. In my overall opinion, the houses of the petitioners I visited, have approach roads and those who have some difficulty have alternate accessible approach roads to their respective residential houses."

¶8A writ Court would not ordinarily enter into disputes which involves factual determination. In the instant case, to resolve such a dispute and taking into consideration the public interest involved, a report from the learned Advocate Commissioner was sought for, who had made a spot verification and has come to a finding that the projection that there would be blockage by the permanent wall is not Page No.# 10/10 correct. It is also not in dispute that the land in question belongs to the respondent no. 3 and therefore there cannot be any legal right of the petitioners over the said plot of land and the endeavor of this Court was only to come to a finding as to whether the road which was under the use of petitioners was the only access from the residential houses. The report of the learned Advocate Commissioner being otherwise wherein there is a clear finding that different roads which would cover all the residential houses, this Court is of the considered view that public interest would tilt towards the respondents in building a permanent wall so as to avoid any means of trespassing to the defence land.

¶9In that view of the matter, this Court is of the opinion that the present may not be a fit case for interference and accordingly the writ petition stands dismissed.

¶10At this stage, Shri Borthakur, learned counsel for the petitioners submits that the controversy was only with regard to a stretch of 100m which falls within the boundary between the defence land and the Government land. He accordingly prays for a liberty to approach the District Administration for improvement / development of a road so that it will ameliorate problems of the inhabitants in their access.

¶11In considering the aforesaid submission, the petitioners are at liberty to approach the appropriate authority of the District Administration for development of that stretch of the land so that the petitioners and other inhabitants of that area can use the same for their access.

JUDGE Comparing Assistant

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