Polofield Sanmilita Unnayan ... vs The State Of Assam on 10 November, 2010 (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) P. I. L. No.69 of 2010 Polofield Sanmilita Unnayan Parishad, Polofield, Tezpur Represented by Sri Poldeep Saikia, Son of late Mahesh Saikia, Resident of Municipal Ward No.14, Polofield, Tezpur P/o & P/s - Tezpur, Sonitpur, Assam PETITIONER VERSUS 1. The State of Assam Represented by the Commissioner And Secretary to the Govt of Assam In the Department of Revenue, Dispur, Guwahati-6 2. The Deputy Commissioner, Sonitpur at Tezpur 3. The Tezpur District Cricket Association, Sonitpur at Tezpur 4. The Tezpur Development Authority, Tezpur, represented by its Chairman 5. The Darrang Cricket Association, Sonitpur at Tezpur RESPONDENTS !Mr G Choudhury Mr P Bora Mr B Prasad Mr H Baruah Petitinoers Advocates ^Ms B Goyal, GA Mr N Dutta, Sr Adv Ms B Bhuyan Mr B Talukdar Mr M Das Mr A Ganguly Respondents Advocates Coram: BEFORE HONBLE THE CHIEF JUSTICE MR MADAN B. LOKUR HONBLE MR JUSTICE U.B. SAHA Date of hearing: 10-11-2010 Date of Judgment and Order:21/01/2011 :JUDGMENT ORDER (MADAN B. LOKUR, CJ) This writ petition has been filed in public interest by the Polofield Sanmilita Unnayan Parishad, claiming to be an association of the residents of Polofield, Tezpur. 2.The writ petition concerns an area of 9 Bigha 4 Katha and 2 Lechas of land in Polofield, Tezpur (for convenience referred to as the land in question). Background facts: 3.It appears that the Darrang Cricket Association sought allotment of the land in question way back in July, 1982. On the basis of the application and after a perusal of the relevant records, the Deputy Commissioner, Darrang, Tezpur passed an order dated 15-10-1982. This order reads as follows :- "File No.DGR-13/82 ORDER Received the resolution for the reservation of lands measuring about 9B 3K 14L covered by Dag No.428(O)/387(N) on the basis of the application dated 8-7-1982 filed by the Darrang Cricket Association as well as the report of the SDC, Sadar Circle vide Letter No.1388 dated 13-10-1982. Within the said lands, the forest department has also planted saplings over 2K 10L of land. If these lands are allotted to the Association, apart from training new players, it is felt that the lands will be used for same purposes in the future also. As such, after deliberating into the matter, part of the lands of Mahabhairab Mouza, Vill. Barikachuburi covered by Dag No.428/387 measuring about 9B 3K 14L is directed to be given in advance possession to Darrang Cricket Association. It is to be noted that over these lands no permanent structures like houses etc. shall be built or any other forms of construction shall be undertaken. Apart from these the saplings planted by the Forest department shall not be subjected to any damages. Inform all accordingly. Sd/- Ashok Saikia, D.C., Darrang, Tezpur, Dated : 15.10.1982" (Emphasis supplied) 4.It may be mentioned at this stage that according to the main contesting party, i.e. the Tezpur District Cricket Association, as per its knowledge, there is no such order either in the revenue records or in any other relevant records. However, the Deputy Commissioner, Sonitpur, Tezpur has filed a counter affidavit in which the existence of such an order is not denied. Furthermore, in a subsequent order dated 7-3-2007 passed by the Addl. Deputy Commissioner, Sonitpur there is a reference to an order passed by the Deputy Commissioner. The reference is, apparently, to the order dated 15-10-1982. Therefore, for the purposes of deciding this petition, we are proceeding on the basis that the order dated 15-10-1982 does exist, although it may not be available on the official records. 5.The importance of the order dated 15-10-1982 lies in the fact that it clearly stipulates that the Darrang Cricket Association was to be given possession of the land in question subject to the condition that no permanent structures like houses etc. would be built or any other form of construction undertaken on the land in question and the saplings planted by the Forest Department shall not be subjected to any damage. 6.It appears that the Darrang Cricket Association became defunct over a period of time and another Association called the Tezpur District Cricket Association (the main contesting party) came into existence. The Tezpur District Cricket Association is respondent No.3 in the writ petition. 7.According to the public interest petitioner, the land in question is being used by the local people as a playground for children and budding sportsmen. It is also used as a place for morning walks, holding of school games etc. The petitioners are aggrieved by the exclusive use of the land in question as a cricket field by the Tezpur District Cricket Association thereby depriving the residents of the area of their legitimate use of thereof. It is this that has compelled the local residents to file this petition in public interest. 8.This situation came to pass because on or about 28- 12-2005 the Tezpur District Cricket Association made an application to the Honble Minister (Revenue), Govt. of Assam for allotment of the land in question for the interest of development of cricket in that part of the State. 9.Within a fortnight, on 10-1-2006 the Honble Minister (Revenue) passed an order to the effect that he had visited the site and was satisfied that the land in question should be allotted to the Tezpur District Cricket Association. The Deputy Commissioner, Sonitpur was asked to hand over possession of the land in question to the Tezpur District Cricket Association and report compliance. A copy of the order passed by the Honble Minister on 10-1-2006 reads as follows :- "No.MSW.REV.27/2004/279 Dtd 10/01/2006 SECRETARY, I have visited the site and I am satisfied that the land mentioned in the petition be allotted to Tezpur District Cricket Association affiliated to ACA. Deputy Commissioner, Sonitpur be informed to hand over the land measuring 9 Bighas 4 Kathas 12 Lechas of Dag No.387 of Part IV Tezpur Town to Tezpur District Cricket Association and report compliance. Send a copy of this order to Secretary, Tezpur District Cricket Association. Sd/- Minister, Revenue" 10.It is important to note that the order of the Honble Minister is as vague as can be, inasmuch as it does not mention the period for which possession of the land in question is to be handed over to the Tezpur District Cricket Association (surely, it cannot be a perpetual handing over) nor does it mention the terms and conditions for the allotment nor does it give any indication of the licence fee or lease money that the Tezpur District Cricket Association was required to pay for use and occupation of the land in question. 11.Be that as it may, by a letter dated 23-2-2006 the Deputy Secretary in the Revenue (Settlement) Department of the Govt. of Assam wrote to the Deputy Commissioner, Sonitpur, Tezpur to examine the matter and submit a formal proposal with required documents "after observing all formalities for Government consideration". In other words, as far as the Deputy Secretary to the Govt. of Assam, Revenue (Settlement) Department is concerned, the matter was still under the consideration of the Government despite the order of the Honble Minister and it appears that this was (quite rightly) because of the extremely vague and arbitrary order passed by the Honble Minister on 10-1-2006. 12.It seems that pursuant to the aforesaid letter dated 23-2-2006, the Circle Officer in the Tezpur Revenue Circle carried out a survey and submitted a report on 3-3-2006. This report, as well as a subsequent No Objection given by the Tezpur District Sports Association, apparently an allottee of a neighbouring plot of land, was then considered by the Deputy Commissioner, Sonitpur who passed an order on 7-3-2007. This order is of some significance and it reads as follows :- GOVT OF ASSAM OFFICE OF THE DEPUTY OMMISSIONER, SONITPUR:: ASSAM (REVENUE BRANCH) ORDER No.SRS.15/2001/part-1/319Dated : 7-3-2007 Seen the report submitted by the Circle Officer, Tezpur Revenue Circle vide letter No.TRC-20/Part/95- 05/311 dated 3-3-2006. Also seen the No Objection dated 5-1-2007, submitted by Rupkamal Kakaty, General Secretary, Tezpur District Sports Association. It has been reported by the Circle Officer that land measuring 9B 4K 2L covered by dag No.387 of Mahabhairab - Mouza in Tezpur town 4th part in the name of Polofield has been used as a play ground. If the said lands are allotted to Tezpur District Cricket Association, the Tezpur District Sports Association shall have no objections as is evident from the No Objection Certificate dated 5-1-2007, issued by Sri Rup Kamal Kakaty, General Secretary of Tezpur District Sports Association. As such lands measuring 9B 4K 2L covered by Dag No.387 situated in Tezpur town 4th part reserved in the name of Polofield shall be reserved as a play ground instead of allotment in the name of Tezpur District Cricket Association shall be used as a play ground as per directions of the Deputy Commissioner. The Circle Officer, Tezpur Revenue Circle shall correct the revenue records accordingly and report compliance. Sd/- Add. Deputy Commissioner, Sonitpur, Dated : 7-3-2007" (Emphasis supplied) 13.The order dated 7-3-2007 clearly mentions that the land in question, i.e. 9 Bigha 4 Katha 2 Lechas shall be reserved as a play ground instead of being allotted in the name of the Tezpur District Cricket Association and that the land in question will be used as a play ground as per the directions of the Deputy Commissioner. These directions of the Deputy Commissioner have not been clearly mentioned but it appears to us that the reference is to the directions of the Deputy Commissioner given on 15-10- 1982 when the application of the Darrang Cricket Association was dealt with. 14.Following up on the order passed by the Addl. Deputy Commissioner on 7-3-2007 the revenue records were corrected to read that the land in question "be reserved as a play ground in the name of Tezpur District Cricket Association". This is really the bone of contention, in as much as the Tezpur District Cricket Association treats this as an allotment of the land in its favour. 15.According to the petitioner, based on the corrections in the revenue records the Tezpur District Cricket Association made an application to the Tezpur Development Authority for grant of permission to construct on the land in question. The construction was in the nature of a ground plus 2 storied building with 5 ft high boundary wall. In its application, the Tezpur District Cricket Association stated that the land in question is in its name. According to the petitioner, the Tezpur Development Authority erroneously and illegally granted permission on 18-1-2010 to the Tezpur District Cricket Association to make the construction. Grievances of the petitioner and case of the parties: 16.The grievance of the petitioner is that as a result of the construction sought to be made by the Tezpur District Cricket Association, the boundary wall would block the entry of the neighbouring residents and others to the land in question for their activities which they had been carrying out over a long period of time, such as morning walks by senior citizens, school games, play ground for children etc. The other grievance of the petitioner is that the land in question cannot be treated as the private land of the Tezpur District Cricket Association. The petitioner made several representations in this regard both to the Government authorities and to the Tezpur District Cricket Association for exercising restraint from using the land in question as private land to the exclusion of the residents of Polofield, Tezpur and others in the neighbouring locality. 17.These representations by the petitioner did not yield any result and consequently a petition was filed in public interest for a declaration that the orders dated 15-10-1982 and 7-3-2007, mentioned above, are subsisting and final and that the land in question should remain as a play ground open to all. It was also prayed that the mutation in the revenue records that the land in question has been reserved in the name of the Tezpur District Cricket Association as a play ground is illegal and without any authority of law. 18.The Addl. Deputy Commissioner, Sonitpur, Tezpur has filed an affidavit on behalf of the Deputy Commissioner in which he has drawn attention to a report dated 20-8-2010 pursuant to an order passed by this Court on 6-8-2010 in this writ petition. The report reads as follows :- "(i)The Tezpur District Cricket Association is an Association affiliated to the Assam Cricket Association with Registration No.RS/SPR/242/B/36 of 2003-04 with S.E. Alam as President and Dr. Anil Borah as Honorary Secretary. (ii)As per the order of the Deputy Commissioner, Sonitpur, Vide No.SRS.15/2001/Pt-I/319 dated 07- 03-2007 an area of land measuring 9B-4K-2L covered by Dag No.387 of Tezpur Town 4th Part under Mahabhairab Mouza of Tezpur Revenue Circle has been kept reserved as a play ground in the name of Tezpur District Cricket Association. (iii) The Tezpur District Cricket Association had already constructed a Turf Wicket in the year 2007-08 at a cost of Rs.70,000/- (Rupees Seventy thousand) only over t he plot of land kept reserved as mentioned above. Out of which an amount of Rs.60,000/- (Rupees Sixty thousand) only was provided by Assam Cricket Association and another Rs.10,000/- (Rupees Ten thousand) only was arranged by the Tezpur District Cricket Association. (iv)Tezpur Development Authority has accorded permission for construction of R.C.C. Pavilion (G+2) covering an area 109.78 Sq. meter, 1st floor area 109.78 Sq, mtr and 2nd floor area 109.78 Sq. mtr along with pucca boundary wall with fencing for length 461.50 Mtr and height 5 feet vide No.TDA/BP/Ward No-14/1639/10 dated 18-01-2010. An amount of Rs.6.00 Lacs (Rupees Six Lac) only was sanctioned to Tezpur District Cricket Association, Tezpur under District Development Plan Scheme 2008-09 by the Tezpur Zilla Parishad for development of Tezpur District Cricket Association playground vide No.SZP.65/Pt-11/2008-09 dated 07-01-2010. Accordingly the Tezpur Town & Country Planning Department has been constructing the ground floor of R.C.C. Pavilion of Tezpur District Cricket Association and it is on the verge of completion. Now, approximately 90% construction works of ground floor of R.C.C. Pavilion has been completed. (v) The Construction of Pucca boundary wall with fencing was also the part of the permission accorded by the Tezpur Development Authority. During enquiry, it has been found that Tezpur District Cricket Association has started the construction of Pucca boundary wall in East-West corner of the land in the month of May 2010, but few local people stopped the said construction. (vi)During verification the following institutions are also found over the plot of land measuring 9B-4K-2L which was reserved for the Tezpur District Cricket Association as play ground. i) Bhaben Dawka Memorial Cricket Coaching Centre, Tezpur (established in 1985) - area covered by 15 L. ii) Tezpur Rupjyoti Sangha (established in 1977) - area covered by 3 L. iii) Polo field Namghar, (established in 1978)- area covered by 1K-5L iv) Anganbadi Kendra No14 - area covered by 5L" 19.In his affidavit, the Addl. Deputy Commissioner does not deny the existence of the order dated 15-10-1982 passed by the earlier Deputy Commissioner with regard to the ban on permanent structures on the land in question. However, he goes on to state that "there are many houses around the field and as the field would house a stadium and various sports activities shall be taking place and as such unless the field is protected by a wall, there may be accidents. Further, rickshaw pullers, hand carts, etc. cross the field unabated. Washermen use the field for spreading their clothes for drying etc. Thus, the boundary wall had become a necessity." 20.The Tezpur District Cricket Association has also filed its counter affidavit and broadly it has mentioned the facts that we have adverted to above. With regard to the order passed by the Deputy Commissioner on 15-10-1982, it is stated by the Tezpur District Cricket Association that to the best of its knowledge there are no official records or any entry in the record of rights laying down any condition for use of the land in question by the Darrang Cricket Association or that the Darrang Cricket Association was ever given any allotment of the land in question. The Tezpur District Cricket Association has also mentioned that the land is allotted to it by the Honble Revenue Minister and that the order dated 7-3-2007 passed by the Addl. Deputy Commissioner requires allotment of the land in question to the Tezpur District Cricket Association. It is stated by the Tezpur District Cricket Association that pursuant to permission granted to it by the Tezpur Development Authority, it has begun construction of a pavilion and that 92% of the construction has been completed. Insofar as prohibiting the entry of all and sundry into the play ground is concerned, it is submitted that its main concern is protection of the turf wicket on which cricket is played. The Tezpur District Cricket Association had meetings with representatives of the petitioner association and it assured them that the boundary wall would be only 1 1/2 feet brick plinth from the ground and above 4 feet chain link fencing would be constructed and that sufficient number of gates on four sides of the field would also be provided. The Tezpur District Cricket Association also gave assurances to the local inhabitants of the area that they would be allowed to use the field for walking, jogging purposes etc. and the field could also be used for cultural functions but with a mutual understanding so as to ensure that no damage or destruction is caused to the turf wicket. According to the Tezpur District Cricket Association the petitioner and its representatives unfortunately did not accept these assurances even though the Tezpur District Cricket Association was prepared to give them in writing. 21.The Tezpur Development Authority has also filed a counter affidavit in which it is stated that as per the Jamabandi issued by the Circle Officer, Tezpur, along with the plans and drawings submitted by the Tezpur District Cricket Association, it was found that the Uniform Zoning Regulations were being adhered to as also the provisions of the Assam Town and Country Planning Act, 1959. It is stated that it is in these circumstances that permission for construction was granted to the Tezpur District Cricket Association on 18-1-2010. 22.The petitioner has filed an affidavit in rejoinder where it has denied the claims of the Tezpur District Cricket Association and has prayed that the writ petition be allowed. 23.We have heard learned counsel for the parties at length and have gone through the paper book with them. Discussion and reasons: 24. First of all, insofar as the application for allotment made by the Tezpur District Cricket Association is concerned, it is not at all clear why it was made to the Honble Revenue Minister of the Govt. of Assam and not to the district authorities in Tezpur who were really concerned with the land in question. It is equally very odd that the Honble Minister should at all have entertained that application. Moreover, it is quite a surprise that the Honble Minister took so much interest in the affairs of the Tezpur District Cricket Association as to visit the site and to pass an order in less than two weeks, that is, on 10-1-2006 directing the allotment of the land in question in favour of the Tezpur District Cricket Association. 25.What is most surprising is that the Honble Minister passed a blanket order in favour of the Tezpur District Cricket Association without any formality having been completed by any of the authorities either in the district or even by the Tezpur District Cricket Association inasmuch as nobody was asked if there was any objection to the allotment in favour of the Tezpur District Cricket Association; nor were any terms and conditions laid down for the allotment; nor was any licence fee or lease money proposed by the Honble Minister; nor was any period fixed for the allotment, virtually making it an allotment in perpetuity. The order passed by the Honble Minister on 10-1-2006 amounts to gifting away the land in question to the Tezpur District Cricket Association which is clearly impermissible since the land did not belong to the Honble Minister in his personal capacity. We are, therefore, of the clear view that the allotment order passed by the Honble Minister on 10-1-2006 is nothing but a piece of waste paper that cannot be seriously taken note of in the absence of any formalities having been carried out for the allotment of the land in question. 26.Secondly, the order dated 7-3-2007 passed by the Addl. Deputy Commissioner has conveniently been misread by the Tezpur District Cricket Association and the revenue authorities. It is quite clear, and there is no categorical denial of this, that the Darrang Cricket Association sought allotment of the land in question way back in 1982. Even though the records may perhaps not be available, but since there is no specific denial in this regard by the Deputy Commissioner of Tezpur, it does seem clear to us that the Darrang Cricket Association was allowed to use the land in question as a play ground, subject to the condition that no permanent structure would be constructed thereon and the trees planted by the Forest Department would not be damaged. This situation appears to have continued until the Tezpur District Cricket Association came on the scene with its application made to the Honble Revenue Minister on 28-12-2005. 27.Fortunately the Deputy Secretary in the Revenue (Settlement) Department of the Govt. of Assam decided (and quite rightly) that necessary formalities must be observed and it is only thereafter that a final decision could be taken after the entire matter is considered by the Government. It is in keeping with the law that the Deputy Secretary in the Revenue (Settlement) Department wrote the letter dated 23-2-2006 to the Deputy Commissioner of Tezpur. 28.It appears that it is on the basis of this letter dated 23- 2-2006 that a report was called for by the Deputy Commissioner form the Circle Officer. On 3-3-2006 the Circle Officer submitted a report, after which objections were invited. The Tezpur District Sports Association, an allottee of the neighbouring land, submitted its No Objection on 5-1-2007. It is then that the Addl. Deputy Commissioner passed an order on 7-3-2007 that the land in question be reserved as a play ground but not allotted to the Tezpur District Cricket Association in terms of the earlier directions of the Deputy Commissioner given on 15-10-1982. It is quite clear to us that the order passed by the Addl. Deputy Commissioner on 7-3-2007 means that the land in question was to be reserved as a play ground; it was not to be allotted to the Tezpur District Cricket Association; and the terms and conditions earlier laid down on 15-10-1982 were to be adhered to, including the condition that no permanent structures like houses etc. or any other form of construction thereon would be undertaken nor the saplings planted earlier by the Forest Department be subjected to any damage. 29.In conformity with the clear order passed by the Addl. Deputy Commissioner on 7-3-2007, the revenue records were corrected to show that the land in question is reserved as a play ground in the name of the Tezpur District Cricket Association. We find no inconsistency between the order passed by the Addl. Deputy Commissioner on 7-3-2007 and the revenue records.If they are read harmoniously, it is clear in that no allotment was made in favour of the Tezpur District Cricket Association - it was only entitled to use the land as a play ground. Indeed, there could not be any allotment in favour of the Tezpur District Cricket Association in the absence of any laid down terms and conditions. Unfortunately, the Tezpur District Cricket Association reads the order passed by the Addl. Deputy Commissioner and the revenue records to mean that there is a perpetual allotment of the land in question in its favour, and the petitioner also believes it to be so. We, therefore, make it absolutely clear that this is a complete misreading of the order passed by the Addl. Deputy Commissioner and the revenue records. There is no allotment of the land in question in favour of the Tezpur District Cricket Association. Conclusions and directions: 30.This then leads us to the question as to how the land in question is to be utilized and by whom. There is no doubt that the Tezpur District Cricket Association has been made entitled to use the land in question. There is also no doubt that the Tezpur Development Authority has given permission to the Tezpur District Cricket Association to construct a pavilion thereon consisting of a ground floor plus two upper floors. There is no dispute about the fact, as mentioned in the report of the Addl. Deputy Commissioner given on 17-8-2010, pursuant to an order passed by this Court on 6-8-2010, that 90% of the construction work on the ground floor of the pavilion has been completed at a substantial cost. There is also no dispute about the fact that a part of the boundary wall has been constructed and a turf wicket has been laid by the Tezpur District Cricket Association. 31.All these activities appear to have been carried out by the Tezpur District Cricket Association on the basis of the so-called allotment made to it by the Honble Revenue Minister of the Govt. of Assam and its misinterpretation of the order of the Addl. Deputy Commissioner and the entry in the revenue records as well as the permission granted by the Tezpur Development Authority. In our opinion, this has been done by the Tezpur District Cricket Association entirely at its own risk. But, these activities having been carried out, we are not inclined to order the demolition of the construction already made, even though it is contrary to the subsisting order dated 15-10-1982 passed by the Deputy Commissioner to use the land in question as a play ground. 32.Construction having already been made to the extent of 90% of the ground floor of the pavilion, we are of the view that the Tezpur District Cricket Association should be allowed to complete the construction of the ground floor. We set aside the permission granted by the Tezpur Development Authority to the Tezpur District Cricket Association to construct the first floor and the second floor of the pavilion for the reason that this permission was given contrary to the order dated 15-10-1982 passed by the Deputy Commissioner and without taking into consideration the views of the residents of Polofield and the neighbouring areas. However, we clarify that this would not preclude the Tezpur Development Authority from reconsidering the matter and according permission to the Tezpur District Cricket Association to construct the first floor and the second floor of the pavilion but only after obtaining concurrence of the Deputy Commissioner, Tezpur and hearing the petitioner association. 33.Insofar as the boundary wall is concerned, even the Deputy Commissioner is of the view that it is necessary to protect the land in question and, therefore, we do not see any reason to restrain the Tezpur District Cricket Association from constructing the boundary wall. Of course, this should be in conformity with the assurances given by the Tezpur District Cricket Association to the representatives of the petitioner, namely, that the boundary will be 1 1/2 feet brick plinth from the ground and above 4 feet chain link fencing shall be constructed and sufficient number of gates on the four sides of the land in question would also be provided. 34.Since there is no allotment of the land in question in favour of the Tezpur District Cricket Association we are of the view that it can be used freely by all residents of Polofield and nearby areas for walking, jogging purposes etc, cultural functions and as a play ground subject, however, to the condition that no damage is caused to the turf wicket laid by the Tezpur District Cricket Association nor is any damage caused to the trees planted by the Forest Department. If any cultural activity or any activity involving a large number of people is to be carried out on the land in question, it will of course be with the permission of the Deputy Commissioner, Tezpur and subject to such terms and conditions as the Deputy Commissioner may lay down in this regard. 35.It is made clear that since the Tezpur District Cricket Association has no right, title or interest on the land in question it cannot charge any fee or any amount from anybody for use of the land in question except for sports events organized by the Tezpur District Cricket Association in accordance with its Memorandum of Association. 36.With the above directions, the writ petition is disposed of. JUDGE CHIEF JUSTICE
Posted on: Sat, 22 Mar 2014 10:42:17 +0000
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