Page No.# 1/7 GAHC010003462024 2025:GAU-AS:5348 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/415/2024 PRAKASH CHANDRA SAIKIA S/O- LATE SARBESWAR SAIKIA, R/O- MAKUM, P.O AND P.S- MAKUM, DIST- TINSUKIA, ASSAM, PIN-786170 VERSUS THE STATE OF ASSAM AND 5 ORS REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF REVENUE AND DISASTER MANAGEMENT, DISPUR, GUWAHATI, ASSAM. 2:THE DEPUTY COMMISSIONER DIBRUGARH ASSAM 3:THE ADDITIONAL DEPUTY COMMISSIONER DIBRUGARH ASSAM 4:THE CIRCLE OFFICER CHABUA REVENUE CIRCLE DIBRUGARH ASSAM 5:THE EXECUTIVE ENGINEER WATER RESOURCE DIVISION DIBRUGARH ASSAM Page No.# 2/7 6:THE DISTRICT AGRICULTURE OFFICER DIBRUGARH ASSA Advocate for the Petitioner : MRS. S ROY, Advocate for the Respondent : SC, REVENUE, SC, WATER RESOURCE,SC, AGRI. DEPARTMENT,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER 30.04.2025 Heard Ms. S. Roy, learned counsel for the petitioner; Ms. G. Hazarika, learned Standing Counsel, Revenue & Disaster Management Department for the respondent no. 1; Mr. H. Sarma, learned Additional Senior Government Advocate, Assam for the respondent nos. 2, 3 & 4; Mr. C. Sarma, learned Standing Counsel, Water Resources Department for the respondent no. 5; and Ms. G. Bora, learned Standing Counsel, Agriculture Department for the respondent no. 6. 2. The petitioner has stated that he is the owner of a plot of land measuring 1 Bigha, covered by Dag no. 69 & Periodic Patta no. 10, situate at Borotichuk Gaon, Mouza – Rohmoria, Chabua Revenue Circle ['the subject-plot', for short]. The petitioner had established a timber depot by the name and style of M/s Prakash Sawn Timber Trading Depot on the subject-plot after obtaining license from the office of the Divisional Forest Officer, Dibrugarh. 3. The respondent authorities in the Water Resources Department, Government of Assam had undertaken and executed a project for anti-erosion, namely, ‘Restoration of flood damages by River Brahmaputra at Rohmoria from H.S. School to Borotichuk’ [‘the project’, for short] in the vicinity of the subject-plot. The project involved installation of geo bags in the bank of river Brahmaputra for controlling soil erosion. Page No.# 3/7 4. The subject-plot belonging to the petitioner is located nearby the bank of river Brahmaputra and the project undertaken by the Water Resource Department. 5. The petitioner has contended that the respondent authorities in the course of installation of the geo bags on the bank of river Brahmaputra under the project, had taken recourse of excavation of land. The petitioner sensing threat to the subject-plot, filed an Representation on 07.12.2020 before the respondent no. 2 with a request to serve him advance notice before any kind of acquisition and excavation of the subject-plot for the installation of geo bags. When no action was taken on the said Representation, the petitioner approached this Court by way of a writ petition, W.P.[C] no. 2666/2021. The Court while issuing notice to the respondents, by an order dated 09.04.2021, had observed that the pendency of the writ petition would not be a bar for disposal of the Representation dated 07.12.2020 by the respondent no. 2. The respondent no. 2 had thereafter, directed an enquiry to be caused through the respondent no. 5 and the respondent no. 6 and to submit a report to him. On 20.01.2023, the petitioner submitted another Representation stating that there had been illegal excavation of earth over the subject-plot for the purpose of installation of geo bags and in the process, severe damage had been caused to the subject-plot including bamboo trees standing thereon and the timber depot running therefrom. By submitting another Representation, the petitioner had also sought for adeqssuate compensation for such loss. 6. In the meantime, the respondent no. 4 after causing a field verification with regard to illegal excavation of earth from the subject-plot, submitted a report before the respondent no. 3 on 01.02.2023 reporting inter alia that a parcel of land measuring 12 Lessas, covered by Dag no. 69 [part] & Periodic Patta no. 10, situate at Borotichuk Gaon, Mouza – Rohmoria, Chabua Revenue Circle was proposed for the project for the purpose of installation of geo bags to prevent erosion by river Brahmaputra. It was further reported that the plot of land had a groove containing 50 bamboo trees and there were six recorded pattadars including the petitioner, within 12 Lessas. Subsequently, the respondent no. 5 caused another field verification at the concerned area on the direction of the respondent no. 3 and through the Page No.# 4/7 Assistant Executive Engineer, Dibrugarh, East Water Resources Sub-Division, Dibrugarh. The Assistant Executive Engineer, East Water Resources Sub-Division, Dibrugarh with the respondent no. 4 and other officials carried out a joint survey and in the course of the said joint survey, demarcation of the subject-plot was also made. As per the report submitted after such joint survey demarcation exercise, the bank trimming works took place at a further offset beyond the boundary of the petitioner’s subject-plot. Even after the laying of 12 metres slope works, a clear pathway of 2-3 metres was left in between and the pathway also did not encroach into the subject-plot. In the report submitted on 12.04.2023, it was further reported that a part of the excess earth excavated by bank trimming works fell into the petitioner’s subject-plot and in the process, the bamboo fencing got damaged. The contractor engaged by the respondent Water Resources Department for the restoration work was asked to engage machinery to clear the earth from the petitioner’s subject-plot and also to construct a new bamboo fencing. However, such clearance of earth from the petitioner’s subject-plot and construction of a new bamboo fencing could not be undertaken as the petitioner, in the meantime, filed a complaint before the In-Charge, Rohmoria Out Post who, on receipt of the complaint, visited the site and asked the contractor to halt the earth removal works. As a result, no excavation of earth could be undertaken in the petitioner’s subject-plot. The report further mentioned that the entire restoration works took place much beyond the land demarcated by the concerned Revenue staff. It was mentioned that no private lands were removed without prior approval of the landowners. 7. The respondent no. 2 to 4 and the respondent no. 5 have filed their counter affidavits separately. In the counter affidavit filed by the respondent nos. 2 to 4 through the respondent no. 3, it is asserted that no land was acquired by the District Administration for installation of geo bags under the project. The facts reported by the Assistant Engineer, East Water Resource Sub-Division, Dibrugarh in his report dated 12.04.2023 have been reiterated in the counter affidavit. It is stated that no earth excavation had taken place in the petitioner’s subject-plot and anti-erosion restoration works were undertaken to protect the lands of the erosion prone Rohmoria area for the benefit of public in the area and for protection of lands including the petitioner’s subject-plot. It has been asserted that in the report of the respondent no. 4, submitted on 01.02.2023, it was reported that there was no destruction of Page No.# 5/7 bamboo trees by way of cutting/removing/falling/uprooting. On the other hand, the petitioner in his affidavit-in-reply, has stated that due to excavation of earth for installation of geo bags, a part of the petitioner’s subject-plot measuring 12 Leassas was illegally excavated and in the process, 15 nos. of bamboo tress were damaged. As a consequence, the petitioner suffered huge loss and he had to close timber depot ultimately. 8. The respondent nos. 2, 3 & 4 have, on the other hand, averred that after institution of the present writ petition, a joint field verification was again undertaken through the respondent no. 4 and the respondent no. 5 in the concerned area and after the joint field verification, the respondent no. 4, submitted a report dated 19.02.2024 to the respondent no. 3. In the said report, it was reported that during the joint verification carried out by the concerned Revenue staff and officials of the Water Resources Department, it was found that no land from the subject-plot had been acquired for the purpose of installation of geo bags Borotichuk Gaon, Mouza – Rohmoria, Chabua Revenue Circle and in view of such findings, the earlier report submitted basing on a Lat Mondol’s report that an area of land measuring 12 Lessas was included in the project for the purpose of installation of geo bags was not correct. 9. The petitioner has instituted the instant writ petition seeking inter alia a direction to the respondent authorities to declare acquisition of the petitioner’s subject-plot for excavation of earth as an illegal and arbitrary act and also for a direction to consider his Representations seeking compensation of Rs. 50 lakhs for illegal acquisition and excavation of earth from the petitioner’s subject-plot. 10. It is settled that in a writ petition under Article 226 of the Constitution, the High Court has jurisdiction to try issues both of facts and law. In the process, the Court has to consider as to what facts are in dispute and what facts are not in dispute and such a stage comes after the exchange of pleadings in the form of affidavits amongst the parties is complete. A writ petition is ordinarily decided on the basis of affidavits. When in a writ petition disputed questions of facts requiring appreciation of evidence, are involved both oral and documentary, and for determination of such disputed questions of fact, leading of evidence by the parties is found necessary then it is convenient to decide such disputes in a proceeding under Article Page No.# 6/7 226 of the Constitution. In such a case, the Court may decline to try a writ petition. The High Court in its jurisdiction under Article 226 of the Constitution does not generally enter upon a determination of questions which demand leading of evidence to establish the right to enforce which the writ is claimed. 11. From the fact situation obtaining in the case and from the pleadings brought on record, it has emerged that it is the case of the State respondents that while executing the works of installation of geo bags for the project, ‘Restoration of flood damages by River Brahmaputra at Rohmoria from H.S. School to Borotichuk’, the Water Resources Department authorities resorted to excavation of earth and in the process, bank trimming works were undertaken at a place beyond the boundary of the petitioner’s subject-plot. The respondent authorities have claimed that there is a clear pathway of 2-3 metres in between the petitioner’s subject-plot and 12 metres slope works executed for the project. It has, however, been admitted that due to the excess earth excavated during the bank trimming works, some earth fell into the petitioner’s subject-plot and in the process, the bamboo fencing installed at the boundary of the petitioner’s subject-plot got damaged. From the Office Letter dated 12.04.2023, it has emerged that the respondent Water Resources Department authorities were ready to remove the earth from the petitioner’s subject-plot and to construct a new bamboo fencing at the boundary of the petitioner’s subject-plot. However, those works could not be undertaken due to the instruction given by the police personnel from Rohmoria Out Post after a complaint was lodged by the petitioner. 12. Since it is an admitted position that some earth after excavation fell into the petitioner’s subject-plot and in the process, the bamboo fencing at the boundary of the petitioner’s subject-plot got damaged and the respondent authorities in the Water Resources Department are ready to clear the earth from the petitioner’s subject-plot and to construct a new bamboo fencing, it is open for the petitioner to convey his consent in that respect to the respondent Water Resources Department authorities. If the petitioner agrees to such proposal of the respondent Water Resources Department authorities, then the respondent authorities in the Water Resources Department shall complete the works of removal of excess earth from the petitioner’s subject-plot and installation of a new bamboo fencing at the boundary of the Page No.# 7/7 petitioner’s subject-plot, as expeditiously as possible. 13. In so far as the other claim/relief sought by the petitioner in this writ petition regarding compensation is concerned, this Court is of the considered view that same involves disputed questions of fact and for determination of such disputed questions of fact, leading of evidence would be necessary. In such view of the matter, this Court is of the unhesitant view that a writ petition is not the proper remedy. Accordingly, the direction to pay compensation, sought for in this writ petition, is declined. It is, however, clarified that dismissal of the writ petition will not be a bar for the petitioner to take recourse to appropriate remedy permissible under the law, if the petitioner is still aggrieved by any alleged action of the respondent authorities. 14. With the observations made and the directions given above, the writ petition is disposed of. No cost. JUDGE Comparing Assistant