1. Heard Mr. A.K. Baruah, learned counsel for the petitioners. Also heard Mr. D. Nath, learned Additional Senior Govt. Advocate for the respondents No.3 and 4 and Mr. D. Thousan, learned counsel appearing for the Jorhat Municipal Board.
2. The petitioners claim themselves to be the people belonging to small scale street vendors selling tea, pithas, betel nuts, paan etc at Baruah Chariali near Jorhat District Court premises. The daily average income of the petitioners is stated to be Rs. 150/- to 250/- and they have no other alternative source of income and their only livelihood from the last few decades has been the income which they have been generating from their small shops.
3. The petitioner No.1 is claiming to be running her shop since 1979. Petitioner Nos. 2 and 3 are running their respective shops since 1996 and 1989 respectively. By an earlier notice dated 18.01.1991, the petitioners were directed to vacate the land which they are illegally occupied.
4. Being aggrieved, they instituted Civil Rule No.3543 of 1991 and other writ petitions.
This Court by the judgment dated 19.01.1993 accepted the contention of the petitioners that Jorhat Municipal Board has no jurisdiction under Section 159 of the Assam Municipal Act to effect any eviction from the government land. Accordingly, the notices impugned therein were interfered. Again Jorhat Municipal Board had issued notices upon the petitioners to remove themselves from the locations from where they operating the shops.
5. This Court by the order dated 22.07.1993 passed an interim order staying the operation of such notices. In the meantime, the shops from which the petitioners were operating were burnt in a fire that engulfed the area. There were efforts to relocate their shops but were prevented by the Jorhat Municipal Board. Being aggrieved, Civil Rule No. 160 of 1998 was preferred, which was disposed of by the order dated 21.05.1998 requiring the Jorhat Municipal Board to make some alternative arrangement to the petitioners therein. In paragraph 8, 9, 10 and 11 of the writ petition the following averment had been made:
"8. That as the matters thus remained pending, on 08.01.1998, at around 1:00 A.M, the shops of the petitioners were burnt by some miscreants. Immediately thereafter, the petitioners submitted a ejahar before the Officer-in-Charge, Jorhat P.S. The said fire incident was reported by the local newspapers.
9. That thereafter, efforts made by the petitioners to re-arrange their shops in their respective places were thwarted by the municipal authorities. Accordingly, on 09.01.1998, the petitioners submitted a representation before the Deputy Commissioner, Jorhat and Officer-in-Charge, Jorhat Police Station.
10. That being left with no other options, the petitioners were compelled to prefer another writ petition before the Hon'ble Court. The same was registered and numbered as Civil Rule No.160 of 1998. The said writ petition was filed on 12.01.1998.
11. That pursuant thereto, on 21.05.1998, this Hon'ble Court while hearing the analogous batch of writ petitions disposed of the same by directing the authorities of Jorhat Municipal Board to make bonafide attempt to provide alternative sites to the petitioners and other similarly situated persons. The said order was also stated to cover Civil Rule No.1988 of 1993 along with other analogous writ petitions."
6. Paragraph-8 reveals that the shop premises occupied by the petitioners were burnt in a fire; paragraph-9 indicates that the petitioners made an attempt to relocate their shop but were prevented by the municipal authorities; paragraph-10 shows that having no other option they instituted Civil Rule No.160 of 1998. In the circumstance, it has to be understood that the judgment dated 21.05.1998 in Civil Rule No.160/1998 was passed in a circumstance where the respective shops of the petitioners were gutted in a fire and therefore, there was a requirement to provide them with some alternative place to relocate their shop. Accordingly, the judgment dated 21.05.1998 in Civil Rule No.160 of 1998 would have to be understood to have been passed from the aforesaid point of view.
7. In the above circumstance, notice dated 29.05.2019 under Rule 18(2) of the Rules under Assam Land and Revenue Regulation 1886 has been issued against the petitioners requiring them to vacate the encroached government land that they are occupying. The said notices are assailed in this petition.
8. The petitioners raised the contention that by the earlier order dated 21.05.1998, this Court had required the Jorhat Municipal Board to provide alternative site to the petitioners. The second contention raised is that before issuing notice under Rule 18(2) no opportunity of hearing was given to the petitioners. The third contention raised is that in the decision of the Supreme Court in Olga Tellis & Ors,-vs- Bombay Municipal Corporation reported in 1985 SCC (3) 545, it had provided that even the street hawkers do have some legal right and the last contention raised is that the power to eject the petitioners from the government land would be on Deputy Commissioner and not the Circle Officer.
9. Regarding the first contention we have already observed that the said direction of this Court was on the basis that certain shops that were operated by the petitioners therein were gutted in an area and therefore, an alternative provision had to be made. Although the shops of the petitioners at the relevant point of time may have been gutted but that does not mean that a legal right had accrued to them to encroach over any government land of their choice. As regards second issue that no opportunity of hearing was given to the petitioners, we accept the said contention and are of the view that atleast from the point of the provision of Rule 18(2) of the Rules under the Assam Land and Revenue Regulation 1886, the petitioners are entitled to an opportunity of hearing. Regarding the third contention that under the pronouncement of the Supreme Court in Olaga Tellis (supra) even the street hawkers have a legal right, we are of the view that there is a noticeable difference between the right of the street hawkers who are operating over a given period of time and that of illegal encroachers of government land. As regards 4th contention, it is for the Deputy Commissioner to issue the order, we are again accept the contention of the petitioners.
10. In the instant case, we have taken note of that a notice under Rule 18(2) of the Rules of Assam Land and Revenue Regulation 1886 has been assailed in this petition and a ground that the petitioners were not given an opportunity of hearing before passing of the order of ejectment. We have taken note of that Rule 18(2) provides that amongst others, when there is no bonafide claim of right being involved is made, the person concerned may be ejected or ordered to vacate the land forthwith. As there is requirement of a satisfaction to be arrived that no bonafide claim of right has been made by the person concerned, we are of the view that the said requirement of whether there is a bonafide claim of a right can be decided only when a hearing has been given to the person who is sought to be evicted. We have gone through the notice dated 29.05.2019 of the Circle Officer under Rule 18(2) and from the notice it is discernible that the petitioner was not given an
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opportunity to make bonafide claim of any right that he may have over the land in question. From the said point of view, the notices dated 29.05.2019 are interfered. The respondents in the Deputy Commissioner, Jorhat is directed to issue fresh notice to the petitioners and give them an opportunity of hearing to present their case and complete the proceeding and pass a reasoned order thereof as to whether the petitioners are required to be evicted from their encroached government land. 11. The aforesaid be done by the Deputy Commissioner within a period of 2 months from the date of receipt of the certified copy of the order. A copy of this order be provided to Mr. D. Nath, learned counsel for onward transmission to the Deputy Commissioner and doing the needful. Interim order passed earlier stands vacated.