Gauhati High Court Issues Notice On Appeal Challenging Dismissal Of Petitions Against Admin's Demolition Drive In Silsako Wetland Area

The Gauhati High Court on Monday issued notice in an appeal filed by a woman against a single bench judgment dismissing the bunch of petitions challenging the eviction drive carried out by authorities in the Silsako Wetland area of the Kamrup district.

The division bench of Chief Justice Sandeep Mehta and Justice Mitali Thakuria issued notice to the respective parties.

The petitioners before the single judge bench said they were occupying small plots of government lands in various villages in Mouza-Beltola, under Dispur Revenue Circle. It was alleged a that large contingent of Police Force along with officials of Guwahati Metropolitan Development Authority (GMDA) and Guwahati Municipal Corporation (GMC) came to the areas of petitioners with Bulldozers and JCBs for the purpose of evicting them and demolishing their dwelling houses.

The single judge on March 03 held that the land in question is a Khas land wherein the petitioners are illegally in occupation. On the argument regarding prospective applicability of the Waterbodies Act, 2008, the single judge said the basic burden upon the petitioners is to establish that they have been residing in the lands from a period prior to coming of the Act. The court also refused to interfere, saying greater goal involving public interest is being sought to be achieved

In the appeal, the appellant said that she was in possession of government land measuring 2 Katha and had constructed a kutcha house on it. She said her Kutcha house was illegally demolished by the officials subsequently after the single bench decision.

It was further submitted that the appellant is entitled for allotment of land under the Land Policy 1989 which provides that land within Guwahati may be settled on payment of due premium. It has been contended that the rehabilitation under the land policy before eviction was a duty of the respondents.

“The Single Judge has erred in holding that the court cannot enter into the issue of whether the appellant-petitioner were residing on the said lands before the year 2008 as that would entail “factual determination” which is supposedly not within the ambit of the High Court, therefore, the single judge bench has allowed a retrospective application of a prospective legislation,” the appeal argues.

It has also been argued that the Single Judge completely ignored the fact that the issue of whether a notice had to be issued to the appellant under Rule 18(2) of the Settlement Rules framed under the Regulation of 1886 before eviction, has been referred by the Court to a division bench for a final consideration in view of several conflicting judgments passed by the court.

“Therefore, the respondents cannot exercise power under a rule, the vires of which is presently under consideration before a larger bench,” the appeal adds.

The Single Judge had held that sub-rule (2) and sub-rule (3) of Rule 18 “makes a clear distinction regarding the nature of the encroachment whereas under sub-rule (2), specific mention has been made of Government Khas land, Wetland of State over which no person has acquired the right of a proprietor, land holder or settlement holder and land reserved roads, road side land, grazing land or other public purposes etc., an eviction can be carried out.”

The petitioners had argued that under the Settlement Rules, there is a requirement to issue notice before such eviction drive is carried out.

Case Title: Smt. Khireswari Saikia v. The State of Assam & 3 Ors.

Coram: The Chief Justice Sandeep Mehta and Justice Mitali Thakuria

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