Page No.# 1/13 GAHC010266022018 2025:GAU-AS:17400 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8303/2018 JOGESWAR BORA S/O- LT TEZA KANTA BORA, R/O- R.R.B.ROAD, SOUTH HOIBORGAON, P.O. HOIBORGAON, DIST- NAGAON, ASSAM, PIN- 782002 VERSUS THE STATE OF ASSAM AND 5 ORS. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, URBAN DEVELOPMENT DEPTT., DISPUR, GHY-6 2:THE DIRECTOR OF MUNICIPAL ADMINISTRATION GOVT. OF ASSAM DISPUR GHY-6 3:THE DIRECTOR OF TOWN AND COUNTRY PLANNING GOVT. OF ASSAM DISPUR GHY-6 4:NAGAON DEVELOPMENT AUTHORITY REP. BY ITS ADMINISTRATOR JAKHALABANDHA ROAD AMOLAPATTY P.O. NAGAON DIST- NAGAON ASSAM PIN- 782001 5:NAGAON MUNICIPAL BOARD REP. BY ITS CHAIRMAN P.O. NAGAON Page No.# 2/13 DIST- NAGAON ASSAM PIN- 782001 6:ON THE DEATH OF PRADIP KUMAR BARUAH HIS LEGAL HEIRS 6.1:RASHMIREKHA BORA BARUAH W/O- LATE PRADIP KUMAR BARUAH C/O SRI KAMAL BORA VILL- HUZGAON P.O HOIBORGAON DISTRICT- NAGAON ASSAM PIN 782002. 6.2:KABYA BARUAH BEING MINOR REPRESENTED BY SMTI. RASHMIREKHA BORA BARUAH (MOTHER) S/O- LATE PRADIP KUMAR BARUAH C/O SRI KAMAL BORA VILL- HUZGAON P.O HOIBORGAON DISTRICT- NAGAON ASSAM PIN 782002 Advocate for the Petitioner : MR. U K DAS, MS. B D SARMAH Advocate for the Respondent : GA, ASSAM, MR. D BORAH (R-6A & R-6B),MR. R DOWARAH,MR. D BORAH,MR. R DOWARAH (R-6A & R-6B),MR. M I HUDA (R4),MR. K M HALOI (R4),MR. R SARKAR (R4),MR. D BORAH (R6),MR. R DOWARAH (R6) Linked Case : WP(C)/6491/2015 ON THE DEATH OF PRADIP KUMAR BARUAH HIS LEGAL HEIR SMTI. RASHMIREKHA SAIKIA W/O LATE PRADIP KUMAR BARUAH VILL- SOUTH HOIBARGAON P.O HOIBARGAON P.S NAGAON DIST- NAGAON Page No.# 3/13 ASSAM PIN- 782002. 2: KABYA PRADIP BEZBORUAH S/O LATE PRADIP KUMAR BARUAH VILL- SOUTH HOIBARGAON P.O- HOIBARGAON P.S- NAGAON DIST- NAGAON ASSAM PIN- 782002 REPRESENTED BY HIS MOTHER RASHMIREKHA SAIKIA. VERSUS THE STATE OF ASSAM AND 9 ORS REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI-6.DIST. KAMRUP M ASSAM. 2:COMMISSIONER AND SECRETARY URBAN DEVELOPMENT DEPARTMENT DISPUR GUWAHATI-06. 3:THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM TOWN AND COUNTRY PLANNING P and D DEPARTMENT DISPUR GUWAHATI-06. 4:THE DIRECTOR TOWN AND COUNTRY PLANNING DISPUR GUWAHATI-06. 5:THE DIRECTOR MUNICIPAL ADMINISTRATION DISPUR GUWAHATI-06. 6:THE CHAIRMAN NAGAON DEVELOPMENT AUTHORITY NAGAON P.O. and DIST. NAGAON Page No.# 4/13 PIN - 782001. 7:THE CHAIRMAN NAGAON MUNICIPAL BOARD NAGAON P.O. and DIST. NAGAON PIN - 782001. 8:THE DEPUTY COMMISSIONER REVENUE NAGAON P.O. and DIST. NAGAON ASSAM PIN - 782001. 9:THE CIRCLE OFFICER NAGAON SADAR REVENUE CIRCLE NAGAON P.O. and DIST. NAGAON PIN - 782002. 10:SRI JOGESWAR BORAH S/O LT. TEZA BORA R.R.B. RAOD SOUTH HOIBORGAON P.O. NAGAON P.S. NAGAON SADAR DIST.NAGAON PIN - 782002 ASSAM. ------------ Advocate for : MR. D BORAH Advocate for : GA ASSAM (R1-R5 R9) appearing for THE STATE OF ASSAM AND 9 ORS Page No.# 5/13 BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 11/12/2025 Heard Mr. U K Das, learned counsel for the petitioner in WP(C) No. 8303/2018 and Mr. D Borah, learned counsel for the petitioner in WP(C) No. 6491/2015. Also heard Mr. B J Talukdar, learned Senior counsel appearing for the State respondents and Mr. K M Haloi, learned counsel appearing for the Nagaon Development Authority, i.e., the respondent No. 4. 2. The issues arising in the above noted writ petitions, being interconnected, with the consent of the parties, the present writ petitions were taken up for final hearing and are being disposed of by this order. 3. Pradip Kumar Baruah (original petitioner in WP(C) No. 6491/2015) had instituted the said writ petition, inter-alia, alleging, therein, that the respondent No. 10, Jogeswar Bora, had constructed his house in violation of the approved design and permission granted by the Nagaon Development Authority. It was further alleged in the said writ petition that Jogeswar Bora had encroached upon Government land, which had caused obstruction to the ingress and egress for the family members of the petitioner to their land. The representation made by Pradip Kumar Baruah not having evoked any response, the writ petition, being WP(C) No. 6491/2015, came to be instituted before this Court. Jogeswar Bora, being aggrieved by a notice dated 19.11.2018 issued by the Administrator, Nagaon Development Authority, requiring him to demolish a wall along with demolition of the slab hanging over the road from his building, had instituted WP(C) No. 8303/2018, inter-alia, assailing the said notice dated 19.11.2018. 4. The above noted writ petitions were directed by this Court to be considered analogously and accordingly, they were tagged. 5. Before proceeding further in the matter, this Court would notice that the permission for construction of the multi-storied building to the petitioner in WP(C) No. 8303/2018 was Page No.# 6/13 granted by the Nagaon Development Authority. However, during the pendency of the present writ petition, the authority conferred upon the Nagaon Development authority for grant of permission for construction of building in an area falling within its jurisdiction, was conferred upon the Nagaon Municipal Board. As contended by the learned counsel for the parties, the present issue arising in the writ petition would fall within the jurisdiction of the Nagaon Municipal Board and any direction that would be so passed by this Court in the matter would be required to be so passed upon the authorities of the Nagaon Municipal Board. Keeping in view the above position, this Court would examine the issues arising in the above noted writ petitions. 6. In WP(C) No. 6491/2015, the original petitioner having passed on, on 29.09.2019, his legal heirs, i.e., his wife and son instituted I.A. (Civil) No. 218/2021 for substituting themselves in place of the original petitioner, Pradip Kumar Baruah. The said prayer on being allowed by this Court, the legal heirs of the original petitioner were substituted in the proceeding of WP(C) No. 6491/2015 and they are the present petitioners in the matter. 7. For the purpose of the present order, this Court would notice the facts from WP(C) No. 8303/2018 and the parties are so described as placed in the said writ petition. The petitioner in WP(C) No. 8303/2018 by projecting that he was the owner and possessor of the plot of land measuring 18.96 lechas covered by Dag No. 915 of Periodic patta No. 152, situated at Town Nagaon Kissam in the District of Nagaon had applied for a building construction permission of ground floor over the aforesaid plot of land from the Nagaon Development Authority. The plan submitted by the petitioner was so prepared by a Junior Engineer of the said authority. The plan on being approved, permission was granted to the petitioner on 13.08.2008 for construction of the RCC building. The said permission was to remain valid till 12.08.2009. The petitioner projects that in terms of the permission granted, he had constructed the building within the validity period of the permission granted. After completion of the said building, noticing deviations existing therein from the original plan as approved, a notice dated 14.12.2010 came to be issued to the petitioner. The said notice was so issued basing on a complaint lodged by the respondent No. 6, i.e., Pradip Kumar Baruah (since deceased). The petitioner responded to the said notice. The matter was, thereafter, Page No.# 7/13 proceeded with by the Nagaon Development Authority. Thereafter, vide notice dated 25.04.2012, the petitioner was again directed to demolish the illegal construction as carried out by him as regards his building. The petitioner responded to the said notice and projects to have also got his land demarcated by the Revenue Authorities. As the matter rested thus, there being no further direction received from the Nagaon Development authority for carrying out any demolition as directed earlier in the notices issued, the petitioner was under the impression that the matter was resolved. However, the petitioner received a notice dated 12.10.2018 issued by the Administrator, Nagaon Development Authority, whereby, the petitioner was directed to appear before the said authority on 30.10.2018 at 2:00 pm for a hearing. The said notice was so issued basing on a report submitted in the matter by the Circle Officer, Sadar Revenue Circle, Nagaon. Although, a direction was issued vide order dated 12.10.2018 by the Administrator, Nagaon Development Authority to furnish a copy of the report of the Circle Officer, Sadar Revenue Circle, Nagaon to the petitioner, the copy thereof was not furnished. The petitioner vide his communication dated 26.10.2018 approached the Administrator, Nagaon Development Authority praying for being furnished with a copy of the report of the Circle Officer, however, the said report was not furnished. Thereafter, basing on the hearing conducted in the matter, the Administrator, Nagaon Development Authority proceeded to pass the order dated 19.11.2018. It is to be noted that in the hearing so held on 30.10.2018, which had preceded the issuance of the order dated 19.11.2018, both the petitioners in the above noted writ petitions were heard by the authority. Being aggrieved, the petitioner has instituted WP(C) No. 8303/2018. 8. I have heard the learned counsels for the parties and also perused the materials available on record. 9. At the outset, this Court would consider the grievance raised by the learned counsel for the petitioner in WP(C) No. 8303/2018 and basing on the conclusions drawn by this Court as regards the same, further consideration would be extended to the writ petition, being Page No.# 8/13 WP(C)No. 6491/2015. 10. The learned counsel for the petitioner has submitted that from time to time notices were issued to him either requiring him to justify the constructions carried out by him in violation of the permission granted for the purpose and/or to demolish the construction so carried out in violation of the permission and he had duly responded thereto. 10.1 The learned counsel for the petitioner further submits that the said notices were not taken to its logical conclusion. Thereafter, the Circle Officer, Sadar Revenue Circle, Nagaon had submitted a report dated 03.04.2018 before the Administrator, Nagaon Development Authority and the said authority on appreciating the said report and also appreciating that WP(C) No. 6491/2015 was pending before this Court touching upon the same issue, it was desired that a hearing of the parties on the point of acceptability of the above report would be very much material for proceeding further in the issues connected thereto. 11. For the purpose of appreciating the contentions raised by the learned counsel for the petitioner in WP(C) No. 8303/2018, perusal of the order dated 12.10.2018 issued by the Administrator, Nagaon Development Authority would be called for. The said order, being relevant, is extracted hereinbelow:- “ ORDER Seen the inquiry report of learned Circle Officer, Sadar Revenue Circle, Nagaon, Assam, forwarded under memo No. N.C./2018/10160 dated 03.04.2018 on being put up before me. Said report has been made available in reference to notice/letter under memo No. NDA/B.P./W.No.O-6/54/08-09/30/865 dated 10.01.2018. Meanwhile, I have also consulted with the learned counsel for the Authority about the report which has been carried on pertaining to W.P.(C) No. 6491/2015 (Pradip Kumar Barua Versus The State of Assam & 9 Others) pending before the Hon’ble Gauhati High Court. It is felt that a hearing of the above parties on the point of acceptability of above report would be very much material for proceeding further in to the issues connected thereto. Page No.# 9/13 Furnish a copy of the report to the parties and accordingly inform them to appear in person or through their duly authorized person/agent on the 30th day of October, 2018 at 2 P.M. before the undersigned for a hearing along with their original land documents pertaining their respective plot/plots of land failing of which the matter will proceed and determined as per law.” 12. A perusal of the said order dated 12.10.2018 would reveal that on receipt of the report from the Circle Officer, Sadar Revenue Circle, Nagaon, the Administrator, Nagaon Development Authority had arrived at a conclusion that before proceeding further with regard to the issues connected with the said report, a hearing of the parties involved was mandated. 12.1 Accordingly, the order dated 12.10.2018 was passed requiring the presence of the parties on 30.10.2018 at 2:00 pm for the said hearing. What is material is that the order also required furnishing of a copy of the report, i.e., the report submitted by the Circle Officer, Sadar Revenue Circle, Nagaon to the parties while issuing to them notices for appearing in the hearing. 12.2 The notices on being received by the petitioner and the same not being accompanied by the report submitted in the matter by the jurisdictional Circle Officer, the petitioner, Jogeswar Bora, preferred an application dated 26.10.2018 before the Administrator, Nagaon Development Authority for being furnished with the copy of the said report so as to submit an effective response in the matter. The said report, however, was not furnished to the petitioner and the hearing had taken place as scheduled on 30.10.2018 at 3:00 PM. 13. On conclusion of the hearing, the Administrator, Nagaon Development Authority proceeded to pass the following order: “OFFICE OF THE NAGAON DEVELOPMENT AUTHORITY, NAGAON : ASSAM No. NDA/BP/Ward No. 6/54/2008-2009/35/906 Date:19-11-18 A hearing was conducted at 3 PM on 30.10.2018 in the office of the Deputy Commissioner, Nagoan under the Chairmanship of the Deputy Commissioner, Nagaon and the Administrator of Nagaon Development Authority in connection with Order No. NDA/BP/W. No. 6/54/08-09 (regarding complaint against building construction). Complainant Sri Pradip Kumar Barua and opposite party Sri Page No.# 10/13 Jogeswar Bora are present in the said meeting. Detail discussion about the aforesaid building construction is held. Statements of both the parties are taken. After the discussion, following decisions are taken by the Chairman. 1. There shall be a passage of 9 ft breadth to the house of Sri Pradip Kumar Barua by the side of Sri Jogeswar Bora. For that the opposite party Sri Jogeswar Bora shall make the road within “open to sky” by demolishing the concrete wall of the road and the slab hanging over the road at his own cost. 2. Sri Jogeswar Bora shall implement the said decision within one month and shall intimate the office. 3. Otherwise, the office shall take action as per law. 4. Junior Engineer of the office Sri Manoj Kumar Sarma shall monitor the matter. 5. Both the parties have agreed to the aforesaid proposal. N.B.: Enclosed copy of report of the Circle Officer, (Nagaon Sadar Revenue Circle) regarding boundary demarcation. Sd/-Administrtor Nagaon Development Authority Nagaon : Assam” 14. A perusal of the said order would reveal that the petitioner (in WP(C) No. 8303/2018), herein, was directed to ensure that there is a passage of 9 ft. breadth leading to the house of the late Pradip Kumar Baruah and that he shall also demolish the concrete wall on the road and the slab of his house hanging over the road at his own cost. The requirement so made was to be implemented by Jogeswar Bora within a period of 1 (one) month. Along with the said order a copy of the Circle Officer’s report finding mention in the notice dated 12.10.2018 was also enclosed and furnished to the petitioner. 15. It is seen that the direction as passed by the Administrator, Nagaon Development Authority for resolution of the dispute existing in the matter between the petitioners in the Page No.# 11/13 above noted writ petitions, was based on the appreciation of the jurisdictional Circle Officer’s report. However, the copy of the same was not forwarded to the petitioners till the passing of the final direction in the matter by the Administrator, Nagaon Development Authority, thereby, a prejudice admittedly had occasioned to the petitioner, Jogeswar Bora in properly defending his case before the Administrator, Nagaon Development Authority in the meeting held on 30.10.2018. 16. This Court also notices that the petitioners in the above noted writ petitions are also in occupation of a plot of Government land covered by Dag No. 420 reserved for M.C. Children Park. Although, the petitioners have denied the encroachment made by them in the matter, however, the pleadings brought on record reveals such encroachment. 17. In view of the above discussion, the issue that would arise for consideration of this Court is as to whether the order dated 19.11.2018 passed by the Administrator, Nagaon Development Authority can be held to be valid when it is established that the same was so issued without providing to the petitioner, Jogeswar Bora a due opportunity of hearing. The hearing as contemplated vide the notice dated 12.10.2018 cannot be an empty formality and the same also having required furnishing of the copy of the report dated 03.04.2018 of the jurisdictional Circle Officer to the parties, including Jogeswar Bora, the report admittedly having not been furnished, no further proof is required to be brought on record by Jogeswar Bora to establish the prejudice that has been caused to him in the matter. The prejudice is apparent on the face of the records. 18. Accordingly, this Court is of the considered view that the order dated 19.11.2018, which was kept in abeyance by this Court in the proceedings of WP(C) No. 8303/2018 would be required to be interfered with. Accordingly, the order dated 19.11.2018 is set aside on the limited ground that the petitioner, Jogeswar Boara, before passing of the said order, having not been furnished with a copy of the report of the Circle Officer, relied upon, therein, a prejudice has occasioned to him in defending his case. 19. Having interfered with the order dated 19.11.2018, this Court notices that the said report was furnished to the petitioner, Jogeswar Bora along with the said order dated Page No.# 12/13 19.11.2018. Accordingly, this Court directs Jogeswar Bora, (petitioner in WP(C) No. 8303/2018) to submit his representation against the order dated 19.11.2018 before the Chief Executive Officer, Nagaon Municipal Board. Thereafter, the matter would be brought to the notice of the Board by the Chief Executive Officer and after scheduling a date of hearing, notices shall be issued by the Board to the petitioners in the above noted writ petitions. On the date so fixed, the petitioners in the above noted writ petitions would be heard and documents as well as oral submissions made by them shall be taken on record and upon conclusion of the hearing, the Board on appreciating the materials coming on record, shall issue a speaking order determining the issues arising before it. The petitioners in the above noted writ petitions shall within a period of 30 (thirty) days from today appear before the Chief Executive Officer, Nagaon Municipal Board along with a certified copy of this order and their respective representations justifying their stand and also dealing with the report of the jurisdictional Circle Officer, copy of which was furnished to them along with the copy of the order dated 19.11.2018. 20. Till the decision is so arrived at by the Board in the matter in terms of the direction passed, hereinabove, no coercive action be taken against the petitioner in WP(C) No. 8303/2018. This interim protection shall continue only till the date of passing of the speaking order by the Board as required by this Court, hereinabove. 21. With regard to the possession of the Government land covered by Dag No. 420 by the petitioners in the above noted writ petitions, this Court requires the District Commissioner, Nagaon to initiate appropriate measures in accordance with law for verifying the said aspect of the matter and on verification it is found that the petitioners in both or either of the above noted writ petitions, are in unauthorized possession of Government land covered by Dag No. 420 and/or any other Government land, appropriate measures, as may be deemed fit and proper in the matter, shall be taken by the District Commissioner, Nagaon for vacating the Government land found to be under unauthorized possession of the petitioners. Any eviction requisite to be carried out, shall be carried out by giving due notice to the evictee and in accordance with law. 22. In view of the above conclusion reached by this Court and the order dated Page No.# 13/13 19.11.2018 having been interfered with, this Court is of the considered view that no further consideration would be called for with regard to the issues raised in WP(C) No. 6491/2015. However, the issues so raised, therein, would be permitted to be urged before the Nagaon Municipal Board during the hearing as directed to be conducted in the matter in terms of the direction passed, hereinabove. 23. With the above observation and direction, both the present writ petitions, being WP(C) No. 8303/2018 and WP(C) No. 6491/2015 stand disposed of. JUDGE Comparing Assistant