Page No.# 1/7 GAHC010071772023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2018/2023 ALTAF HUSSAIN AND 6 ORS S/O- LATE AFIL UDDIN, VILL. CHAIBARI MUSLIMPARA, P.O.- GAURNAGAR, P.S.- LAKHIPUR, DISTRICT- GOALPARA (ASSAM), PIN- 783132. 2: JOHIRUL ISLAM S/O- LATE ABU BAKKAR SIDDIQUE VILL. - SALBARI PART-III P.O.- GAURNAGAR P.S.- LAKHIPUR DISTRICT- GOALPARA (ASSAM) PIN- 783132. 3: ZULFIKAR ALOM HOQUE S/O- LATE MOSTAFIJUL HOQUE VILL. - SALBARI PT-I P.O.- GAURNAGAR P.S.- LAKHIPUR DISTRICT- GOALPARA (ASSAM) PIN- 783132. 4: MAHIRUL HAQUE S/O- LATE MAHEJ SHEIKH VILL. - SALBARI PT-I P.O.- GAURNAGAR P.S.- LAKHIPUR DISTRICT- GOALPARA (ASSAM) PIN- 783132. 5: KALACHAN ALI S/O- LATE MANTAJ ALI Page No.# 2/7 VILL. - SALBARI PT-III P.O.- GAURNAGAR P.S.- LAKHIPUR DISTRICT- GOALPARA (ASSAM) PIN- 783132. 6: JOYNAL ABDIN S/O- ABED ALI SHEIKH VILL. - SALBARI PT-III P.O.- GAURNAGAR P.S.- LAKHIPUR DISTRICT- GOALPARA (ASSAM) PIN- 783132. 7: SAMSUL HOQUE S/O- LATE KACHIRUDDIN SHEIKH VILL. - SALBARI PT-I P.O.- GAURNAGAR P.S.- LAKHIPUR DISTRICT- GOALPARA (ASSAM) PIN- 783132 VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DISPUR, GHY-06. 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-06. 3:THE DEPUTY COMMISSIONER GOALPARA ASSAM PIN- 783132. 4:THE CHIEF EXECUTIVE OFFICER OF GOALPARA ZILA PARISHAD PIN- 783101. 5:THE CIRCLE OFFICER LAKHIPUR REVENUE CIRCLE LAKHIPUR P.O. AND P.S.- LAKHIPUR Page No.# 3/7 DIST.- GOALPARA ASSAM PIN- 783129. 6:THE BLOCK DEVELOPMENT OFFICER JALESWAR DEV. BLOCK P.O.- JALESWAR P.S.- LAKHIPUR DIST. GOALPARA ASSAM PIN- 783132. 7:AMINUL HOQUE S/O. NOSIMUDDIN SHEIKH VILL- SHALDHOWA PT-I P.O- GAURNAGAR DIST- GOALPARA (ASSAM) PIN-783132. 8:ABDUL KHALEQUE S/O- MATAUDDIN SHEIKH VILL-SHALDHOWA PT-I P.O- GAURNAGAR DIST- GOALPARA (ASSAM) PIN-783132 Advocate for the Petitioner : MR. A F N U MOLLAH, K ZAMAN Advocate for the Respondent : GA, ASSAM, MS. S PAUL (R-7,8),MS. N CHAKRABORTY (R- 7,8),MR R ISLAM (R-7,8),SC, P AND R.D. BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 10.03.2026 Heard Shri A.N.F.U. Mollah, learned counsel for the petitioners. Also heard Shri N. Goswami, learned State Counsel, Assam; Shri S. Dutta, learned Standing Counsel, P&RD Department, Assam and Shri R. Islam, learned counsel for the respondent nos. 7 and 8. Page No.# 4/7 2. As per the facts projected, the petitioners are the residents of the locality and few of them also held some position in the Anchalik Panchayat. 3. The grievance of the petitioners is with regard to the inaction of the respondent authorities to make the Gaurnagar Bazar (Bazar) encroachment free. It is contended on behalf of the petitioners that an area of 12 bighas and 8 lechas was allotted to the Bazar which has practically been reduced to about 3 bighas by random encroachment. The same has also adversely affected the drainage system, the availability of public toilet and drinking water facilities. The petitioners had earlier approached this Court by filing WP(C)/1454/2022 which was disposed of vide an order dated 09.03.2022 at the motion stage by directing consideration and disposal of the representation dated 05.02.2022. It is contended that though the representation was disposed of on 16.07.2022, only certain action towards clearing the road has been taken and the market area still remains under encroachment. 4. Shri Mollah, learned counsel for the petitioners, at the outset, has informed that the petitioner no. 1 has passed away. However, the cause of action is surviving one which continues to be espoused by the other petitioners. He has submitted that there has been a sham compliance of the order dated 09.03.2022 passed by this Court whereby the representation was directed to be disposed of. He submits that though an order has been passed on 16.07.2022, no effective steps were taken for making the market encroachment free. In this regard, he has drawn the attention of this Court to a communication dated 11.08.2022 issued by the Jaleswar Anchalik Panchayat, Katarihara within which the market is situated. In the said communication, it has been highlighted that there is large number of encroachment in the market area by constructing dwelling houses and the demarcation was not yet done. 5. Per contra, Shri Goswami, learned State Counsel has submitted that in the Page No.# 5/7 meantime, a proper demarcation exercise has been carried out followed by eviction of the encroachers. In this connection, the learned State Counsel has drawn the attention of this Court to the averments made in paragraph 4 of the affidavit-in- opposition filed by the respondent no. 5 on 05.08.2023. The respondent no. 5, who is the Circle Officer of the Lakhipur Revenue Circle has clearly stated that an eviction drive was carried out and all the illegal encroachers were evicted and the action taken report was forwarded to the District Commissioner, Goalpara. 6. Shri Dutta, learned Standing Counsel, P&RD Department has endorsed the submissions made the learned State Counsel. 7. Shri Islam, learned counsel for the respondent nos. 7 and 8 has submitted that the authorities had taken appropriate action for making the market encroachment free and this part has been clarified in the affidavit filed by the Circle Officer. 8. Shri Mollah, learned counsel for the petitioners in his rejoinder has submitted that the encroachment is still there and public interest is being adversely affected. He has also submitted that the rejoinder affidavit has been filed whereby there is a denial of the statements of the affidavit-in-opposition filed by the Circle Officer. 9. The rival submissions have been duly considered and the materials on records carefully examined. 10. The issue which has been sought to be raised would normally require the petitioners to file a writ petition in the form of a Public Interest Litigation. However, considering that an earlier writ petition was entertained by this Court and disposed of vide order dated 09.03.2022, this Court will overlook that aspect. Page No.# 6/7 11. The grievance is with regard to the inaction of the respondent authorities to make the Market encroachment free. While the bona fide of the petitioners is not in doubt as the objective appears to be in sync with the public interest, what appears from the materials on record is that the questions of fact have been raised which are clearly disputed by the respondents in their affidavit. In fact, in the affidavit-in- opposition filed by the respondent no. 5, Circle Officer on 05.08.2023, it has been clearly stated that notices were served, demarcation done and eviction carried out. For ready reference, the said averments are extracted hereinbelow: “4. That with regard to the statements made in paragraph no.2 of the writ petition, the deponent begs to state that in compliance of judgment & order dated 09/03/2022 passed in WP(C)No 1454/2022, for demarcation of Gaurnagar Bazar on 20/04/2022 at 11-00AM, notices were served vide this office No. GLCG.10/Court matters/2020/CI/518-33 dated 05/03/2022 and the land of Gaurnagar Bazar was demarcated and found land measuring 7B-3K 4L and an eviction drive was carried out against the illegal encroachers and evicted the illegal shops nearby the PWD Road and Gaurnagar Bazar and freed 0B-4K-13L of Government land and accordingly, the action taken reports were forwarded to the Deputy Commissioner, Goalpara vide letters dated 25/04/2022 and 31/05/2022. Further, it is stated that the respondent No 5 is not the appointing authority of Managing Committee of the Gaurnagar Bazar.” 12. Though the petitioners have filed an affidavit-in-reply denying such statement, this Court will be confronted with a situation where there would be disputed questions of fact. A Writ Court is not a court of facts, more so when such facts are in dispute. Moreover, there is no reason to disbelief the version of the Circle Officer, Goalpara in the affidavit dated 05.08.2023 as it is, otherwise also the sacrosanct duty of the Administration to keep public places free from encroachment. Page No.# 7/7 13. In that view of the matter, this Court is of the opinion that no case for any interference is able to be made out by the petitioner, more particularly in view of the categorical stand made in the affidavit by the respondent no.5. 14. The writ petition accordingly stands disposed of. JUDGE Comparing Assistant