Nazrul Hussain Choudhury and 3 Ors v. The State of Assam and 3 Ors

PageoNo.#o1/4 GAHC010277352023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7595/2023o NAZRULoHUSSAINoCHOUDHURYoANDo3oORSo S/O-oLATEoGAUSULoHUSSAINoCHOUDHURY,oRESIDENToOFoS.S.oROAD,o HOUSEoNO.o455oAFSARoLANE,oNEARoHOTELoCITYoPARK,oLAKHTOKIA,oP.S.o PANBAZAR,oDIST.-oKAMRUPo(M)o(ASSAM),oPIN-o781001 2:oIRAoCHOUDHURY oW/O-oLATEoIQBALoHUSSAINoCHOUDHURY oRESIDENToOFoS.S.oROAD oHOUSEoNO.o455oAFSARoLANE oNEARoHOTELoCITYoPARK oLAKHTOKIA oP.S.oPANBAZAR oDIST.-oKAMRUPo(M)o(ASSAM) oPIN-o781001 3:oAFZALoHUSSAINoCHOUDHURY oS/O-oLATEoIQBALoHUSSAINoCHOUDHURY oRESIDENToOFoS.S.oROAD oHOUSEoNO.o455oAFSARoLANE oNEARoHOTELoCITYoPARK oLAKHTOKIA oP.S.oPANBAZAR oDIST.-oKAMRUPo(M)o(ASSAM) oPIN-o781001 4:oIBADoHUSSAINoCHOUDHURY oS/O-oLATEoIQBALoHUSSAINoCHOUDHURY oRESIDENToOFoS.S.oROAD oHOUSEoNO.o455oAFSARoLANE oNEARoHOTELoCITYoPARK oLAKHTOKIA oP.S.oPANBAZAR oDIST.-oKAMRUPo(M)o(ASSAM) oPIN-o78100o PageoNo.#o2/4 VERSUSo THEoSTATEoOFoASSAMoANDo3oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,oREVENUEoDEPARTMENT,oDISPUR,oGUWAHATI-6 2:THEoDISTRICToCOMMISSIONER oKAMRUPo(M) oP.S.oDISPUR oDISTRICT-oKAMRUPo(M) oASSAM 3:THEoCIRCLEoOFFICER oGUWAHATIoREVENUEoCIRCLE oULUBARI oGUWAHATI-o781007 oDISTRICT-oKAMRUPo(M) oASSAM 4:SRIoCHANDoRATANoSWAMI oS/O-oLATEoMOHANoLALoSWAMI oRESIDENToOFoS.R.C.B.oROAD oM/S-oINDIANoUMBRELLA oFANCYoNAZAR oGUWAHATI-01 oP.S.oPANBAZAR oDIST.-oKAMRUPo(M)o(ASSAM) oPIN-o78100o AdvocateoforotheoPetitionerooooo:oMDoBoISLAMo AdvocateoforotheoRespondento:oSC,oREVENUEoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo BEFORE HONOURABLEoMR.oJUSTICEoMANISHoCHOUDHURY ORDERo Dateo:oo03-01-2024 Heard;Mr.;B.;Islam,;learned;counsel;for;the;petitioners;;Ms.;G. Hazarika, ; learned ; Standing ; Counsel, ; Revenue ; Department ; for ; the Page No.# 3/4 respondent no. 3; and Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 2 & 3.

¶2The petitioners, 4 [four] in nos., have instituted the present writ petition seeking to invoke the extra-ordinary and discretionary jurisdiction of this Court under Article 226 of the Constitution of India by projecting the following facts :-

2.1. The petitioners have claimed that they and their mother, Late Jahanara Choudhury, are pattadars of parcels of land measuring 18.68 Lessas, covered by [i] Dag no. 478 & Patta no. 401; and [ii] Dag no. 684 & Patta no. 443; situate in Revenue Village – Town Guwahati Part 3, Guwahati Revenue Circle, District – Kamrup [M]. The petitioners have stated that one Sri Chand Ratan Swami who has been impleaded as party-respondent no. 4 in the writ petition, had purchased a plot of land measuring 1 Katha 1 Lessa, adjacent to the aforesaid parcel of land, belonging to the petitioners. The petitioners have themselves stated that Sri Chand Ratan Swami as a lease holder and whose name is shown as 44th pattadar in the concerned Jamabandi, has been occupying 9 Lessas of extra-land besides the land measuring 1 Katha 1 Lessa, purchased by him.

2.2. The petitioners have further stated that seeking recovery of the said 9 Lessas of land which falls under [i] Dag no. 478 & Patta no. 401 and [ii] Dag no. 684 & Patta no. 443, belonging to the petitioners, two representations were submitted before the Circle Officer, Guwahati Revenue Circle and the Chief Secretary to the Government of Assam on Page No.# 4/4

15.06.2023 and 19.01.2023 respectively. With the contention that the said representations have not been given due consideration of till date, the petitioners have preferred the instant writ petition.

¶3From the above facts projected the writ petition, it has clearly emerged that the petitioners are seeking recovery of 9 Lessas of land, which is admittedly in occupation of a private individual. It is not the case of the petitioners that there is any kind of arbitrary and high-handed action on the part of any of the State respondents. The allegation is unauthorized encroachment of the petitioners' private patta lands by a private individual. The extra-ordinary and discretionary jurisdiction of this Court under Article 226 of the Constitution of India is a public law remedy. The case projected by the petitioners does not appear to fall within the realm of public law as the case of the petitioners is confined to restoration of possession of the petitioners' patta land. There is a need to examine and determine factual questions relating to title, extent and actual possession and such questions cannot be gone into in writ proceedings by embarking on a fact-finding exercise. As the dispute appears to be of civil nature, the instant writ petition is not entertained, reserving the liberty to the petitioners to avail appropriate remedy permissible under the law.

JUDGE Comparing Assistant