Page No.# 1/7 GAHC010116132018 2025:GAU- AS:3137 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3540/2018 MADHUSUDAN ROY AND 5 ORS. S/O. LT. MAHENDRA NATH ROY, VILL. BIDYARDABRI PART-I, P.O. BIDYARDABRI, P.S. GOLAKGANJ, DIST. DHUBRI, ASSAM 2: KAMAL CHANDR SARKAR S/O. SRI GANESH CHANDRA SARKAR VILL. BIDYARDABRI PART-I P.O. BIDYARDABRI P.S. GOLAKGANJ DIST. DHUBRI ASSAM 3: GOPESH CHANDRA SARKAR S/O. SRI GANESH CHANDRA SARKAR VILL. BIDYARDABRI PART-I P.O. BIDYARDABRI P.S. GOLAKGANJ DIST. DHUBRI ASSAM 4: MRS. MALLIKA ROY W/O. SRI NITYANANDA ROY VILL. BIDYARDABRI PART-I P.O. BIDYARDABRI P.S. GOLAKGANJ DIST. DHUBRI ASSAM Page No.# 2/7 5: TAPAN CHANDRA SARKAR S/O. SRI GANESH CHANDRA SARKAR VILL. BIDYARDABRI PART-I P.O. BIDYARDABRI P.S. GOLAKGANJ DIST. DHUBRI ASSAM 6: GANESH CHANDRA SARKAR S/O. LT. PURNA CHANDRA SARKAR VILL. BIDYARDABRI PART-I P.O. BIDYARDABRI P.S. GOLAKGANJ DIST. DHUBRI ASSA VERSUS THE STATE OF ASSAM AND 5 ORS. REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GHY. 2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM REVENUE DEPTT. DISPUR GHY. 3:THE DY. COMMISSIONER DHUBRI DIST. DHUBRI ASSAM 4:THE SETTLEMENT OFFICER DHUBRI AND KOKRAJHAR DIST. DHUBRI ASSAM 5:THE ASSTT. SETTLEMENT OFFICER AGOMANI CIRCLE Page No.# 3/7 AGOMANI DIST. DHUBRI ASSAM 6:THE CIRCLE OFFICER AGOMANI REVENUE CIRCLE AGOMANI DIST. DHUBRI ASSA Advocate for the Petitioner : MR. S K ROY, MRS. M M ROY Advocate for the Respondent : GA, ASSAM, BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 21.03.2025 1. Heard Mr. S.K. Roy, learned counsel for the petitioners. Also heard Mr. S R Baruah, learned counsel for respondent Nos.1, 3 to 6 and Ms. G Hazarika, learned counsel for respondent No.2. 2. A plot of land measuring 63 Bigha 0 Katha 12 Lechas under Khatian No.167 covered by Dag nos.600, 604, 630, 633, 635, 637, 638, 646, 650, 652, 653, 654 and 655 situated at village Bidyardabri, Part-I under Agomani Revenue circle in the district of Dhubri was declared as ceiling surplus land under Assam Fixation of Ceiling of Land Holdings (Ammendment) Act, 1970. 3. It is the case of the petitioners that they are occupying some portion of the said plot of land by doing cultivation and constructing their residential houses on the aforesaid land and Touji Bahi revenue is collected from them. Page No.# 4/7 4. It is their case that on 24.05.2018, the state respondents, more particularly, the Circle officer of the concerned Revenue Circle visited the land in question and verbally asked the petitioners to vacate the land in question. 5. Mr. S.K. Roy, learned counsel for the petitioners further argues that the petitioners being landless and indigenous people are having a bona fide claim of settlement over the aforesaid land inasmuch as, one of the object of Ceiling Act is to settle the ceiling surplus land in favour of the tenants, landless person and flood affected person/ original cultivator. Mr. Roy has also produced the periodic khiraj patta No.378, issued in favour of the petitioner No.1 on 3.12.2018. It is contended by Mr. Roy that the petitioner No.1 and some other persons have been granted periodic khiraj patta and therefore, all the other petitioners, similarly situated are also entitled for such consideration. 6. Per contra, Mr. SR Baruah, learned counsel appearing on behalf of the Circle Officer & Deputy Commissioner submits that the petitioners cannot be stated to be in legal occupation over the plot in question inasmuch as, Touji Bahi is a fine imposed upon them and right can be created on the basis of payment of the fine. 7. From the materials available on record, what is seen is that the petitioners are admittedly occupying Government/Government Khas land/Ceiling surplus land and they are paying Touji Bahi revenue and they also prays for settlement of land being tenant/cultivator under the original owner. 8. It is also seen that the petitioner No.1 has already been Page No.# 5/7 granted patta during the pendency of the writ petition, though he also joined this writ petition in apprehension of eviction. 9. A Division Bench of this court in WP(C) 1057/2022 (Md. Salak Uddin Vs. State of Assam and 2 Ors.), while dealing with a reference as to whether a notice is required to be issued under Section 18(2) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886 has made certain conclusion. Since such conclusions are having importance and determinative factor in adjudication of an eviction process, the same are curved out in the following manner: I. Rule 18(2) of the Settlement Rules clearly shows that Deputy Commissioner or such authority duly empowered under Rule 3 of the Settlement Rule has to arrive at a subjective satisfaction that there is no bona- fide claim of right. II. Revenue authorities cannot be permitted to unilaterally decide as to whether an occupier/ possessor has a bona-fide claim of right involved inasmuch as it would require adjudication of both law and facts and without providing an opportunity to the occupier / possessor, such decision would be in violation of the principle of natural justice which in turn would violate Article 14,19 and 21 of the Constitution. III. Though Rule 18 (2) is silent on the question of issuance of the notice, but use of the word ‘forthwith’ does not necessarily and absolutely exclude the prior Page No.# 6/7 application of audi alteram partem Rule inasmuch as immediacy or urgency requiring swift action is a situational fact, having a direct nexus with the likelihood of adverse affect. IV. Bona-fide claim, in case of Government khas land or waste land, may involve a bona-fide claim of right to claim settlement over the land on the basis of settlement Rules and extant land policy of the Government of Assam. In respect of other lands i.e. lands previously reserved for roads or roadside lands, or for grazing of village cattle or for other public purposes or the occupant had entered into possession of land from which he has been excluded by general or special order, such lands are outside the purview of settlement, there may be various situations, where the question of disputes pertaining to the boundary or there may be disputes pertaining to reservations or de-reservation for grazing of village cattle or for that matter, there may be a dispute that the persons who have been granted the settlement in respect of a land even prior to being previously reserved for the purpose, may arise. V. Under such circumstances, issuance of a notice shall be necessary to form a subjective satisfaction, which is in consonance with the principles of natural justice inasmuch as same will facilitate a just, fair and transparent procedure, which are facets of Article 14,19 Page No.# 7/7 and 21 of the Constitution. 10. In view of the given facts of the present case as well as the ratio laid down in Salak Uddin (supra), this court is of the opinion that in order to balance the right of the petitioners and the competing claim of the state, the following order is required to be passed. Accordingly this writ petition stands disposed with the following observations and directions: I. The petitioners may file appropriate application for settlement of their land in terms of the extent land policy of the State before the District Commissioner, Dhubri, and if necessary, through the concerned Revenue Circle Officer. II. On such application being received, the case of the petitioners be considered in terms of the extent land policy which prescribes settlement of land and to take a conscious decision within a period of 6 months from the date of receipt of such application for settlement filed by the petitioners. III. Till then, the petitioners shall not be evicted from their land. JUDGE Comparing Assistant