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Gauhati High Court
Bedabrata Bora vs The State Of Assam And 3 Ors on 12 August, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/9
GAHC010023632016
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5075/2016
BEDABRATA BORA
S/O LT. RAMAKANTA BORA R/O VILL- - DHEKERI NARUA P.O.
KUSUMTULA DIST. SONITPUR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
REVENUE DEPARTMENT, ASSAM, SACHIVALAYA, DISPUR, GUWAHATI -6.
2:THE DEPUTY COMMISSIONER
SONITPUR
DIST. SONITPUR
ASSAM.
3:THE ADDITIONAL DEPUTY COMMISSIONER
SONITPUR
DIST. SONITPUR
ASSAM.
4:THE CIRCLE OFFICER
SONITPUR REVENUE CIRCLE
DIST. SONITPUR
ASSAM
Advocate for the Petitioner : MR.S BORTHAKUR, MS.P BORAH,MR.K GOGOI
Advocate for the Respondent : , GA, ASSAM,
Page No.# 2/9
BEFORE
HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI
For the Petitioner : Shri S Borthakur, Advocate.
For the Respondents : Shri D Nath, Sr. Govt. Advocate.
Dates of Hearing : 12.08.2025.
Date of Judgment : 12.08.2025.
Judgment & Order (Oral)
The approach to this Court by this application filed under Article 226 of the
Constitution of India is against a notice dated 19.07.2016 by which, the petitioner has
been sought to be evicted from the land which is under his possession.
2. As per the facts projected, the petitioner is a Small Tea Grower and is registered
under the Tea Board. It has been stated that 40 bighas of myadi patta land was
utilized and he had opened a small tea garden in the year 2004-05. Thereafter, the
petitioner had purchased the possessory rights from the earlier occupiers of around 11
bighas of land and had extended the tea garden. It is the specific case of the
petitioner that at that time, he was not aware of the fact that the land which he had
purchased in the year 2007-08 was Village Grazing Reserve (VGR) land. Be that as it
may, the petitioner has relied upon the policy of the Government to settle lands in
favour of Small Tea Grower and the contention advanced is that under such a policy
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existing, the impugned decision to evict is unreasonable and arbitrary.
3. I have heard Shri S Borthakur, learned counsel for the petitioner. I have also
heard Shri D Nath, learned Senior Govt. Advocate, Assam.
4. Shri Borthakur, learned counsel has submitted that at the time of purchase of
the 11 bighas of land, the petitioner was not aware of the status of the land that it
was VGR land. He has submitted that similar lands are also under the possession of
other persons against whom, no action has been taken. He has categorically
contended that the petitioner has been targeted and there is lack of bona fide in
issuance of the impugned notice dated 19.07.2016. He has relied upon the policy of
the Government to allot lands to Small Tea Growers and in this regard, he has placed
before this Court a communication dated 23.09.1994 of the Revenue Department
whereby, the premiums were fixed for such settlement. He has submitted that though
in view of the law laid down by the Hon’ble Supreme Court in respect of VGR land, he
may not have an indefeasible right, considering the policy of the Government to give
incentive to the Small Tea Growers, it would be the appropriate to the Government to
revoke the notice dated 19.07.2016 and take steps for settlement of the land in
question by de-reserving the same.
5. Per contra, Shri Nath, learned State Counsel has submitted that there is no
dispute that the land in question is VGR land where de-reservation is not permissible.
By drawing the attention of this Court to the affidavit-in-opposition filed on
22.05.2025, the learned State Counsel has submitted that steps have been taken to
clear the VGR land and in this regard, he has drawn the attention of this Court to the
averments made in paragraph 6 thereof. The learned State Counsel has relied upon
the landmark judgment of the Hon’ble Supreme Court in the case of Jagpal Singh &
Ors. Vs. State of Punjab & Ors. , reported in (2011) 11 SCC 396 and the
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guidelines/observations made in paragraph 23 have been pressed into service.
6. With regard to the issue as to whether there would be a requirement of notice
under Regulation 18(2) of the Assam Land and Revenue Regulation, the State Counsel
has submitted that there would be no such requirement which has been clarified by
the Division Bench in the case of Salak Uddin Vs. State of Assam & Ors. , reported in
2024 (4) GLT 859.
7. On the aspect that certain persons are still occupying VGR land and the notice
has been issued only to the petitioner, the learned State Counsel has submitted that
pleadings in this regard are vague in the writ petition and in any case, there is no
concept of negative equality under Article 14 of the Constitution of India. In this
regard, he has placed reliance upon a decision of the Hon’ble Supreme Court in the
case of Jyostnamayee Mishra Vs. The State of Odisha, reported in 2025 SCC OnLine
SC 117. The relevant paragraph is extracted hereinbelow:
“31. … Suffice to add, this Court cannot put a stamp on the illegalities
committed by the department while perpetuating the same. A litigant coming to
the Court cannot claim negative discrimination seeking direction from the Court
to the department to act in violation of the law or statutory Rules. It is a settled
proposition of law that Article 14 does not envisage negative equality. Reference
for the purpose can be made to a judgment of this Court in R. Muthukumar &
others v. The Chairman and Managing Director TANGEDCO & others. Relevant
para thereof is extracted below :
’28. A principle, axiomatic in this country’s constitutional lore is that
there is no negative equality. In other words, if there has been a benefit
or advantage conferred on one or a set of people, without legal basis or
justification, that benefit cannot multiply, or be relied upon as a principle
of parity or equality. In Basawaraj v. Special Land Acquisition Officer, this
Page No.# 5/9court ruled that:
‘8. It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or fraud, even by
extending the wrong decisions made in other cases. The said
provision does not envisage negative equality but has only a
positive aspect. Thus, if some other similarly situated persons
have been granted some relief/benefit inadvertently or by
mistake, such an order does not confer any legal right on others
to get the same relief as well. If a wrong is committed in an
earlier case, it cannot be perpetuated’.”
8. He has assured that the present notice is only pertaining to the VGR land and
the patta land of the petitioner is not to be vacated. In this regard, he has drawn the
attention of this Court to the averments made in paragraph 3 of the affidavit-in-
opposition wherein, the description of the land has been given. Shri Nath, learned
State Counsel accordingly submits that the writ petition is liable to be dismissed and
the interim order be vacated.
9. Shri Borthakur, learned counsel for the petitioner has submitted that the aspect
of discrimination would be apparent as he has given the details of the persons who
are occupying VGR land and no action has been taken against them and in this regard,
he has drawn the attention of this Court to the affidavit-in-reply filed on 17.07.2025.
He has submitted that the land in question has been utilized only for cultivation of tea
and he being a Small Tea Grower should be given the benefit of the policy which was
advanced by the State to give incentive.
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10. The rival submissions have been duly considered and the materials on record
have been carefully examined.
11. From the pleadings exchanged and the arguments advanced, there is no
manner of doubt that the land in question is VGR land. The learned counsel for the
petitioner has stated that it was the possessory right of such land which was
purchased by the petitioner in the year 2007-08 and at that time, he was not aware of
the status of the land. Be that as it may, the status of the land being VGR is not
disputed at all.
12. The stand of the State Government is clearly stated in the affidavit-in-opposition
filed on 22.05.2025 and the relevant averments are extracted hereinbelow:
“That it is respectfully submitted that in the instant case steps was taken to
clear the encroachment of VGR land which is under the occupation of the
petitioner and doing so the provisions of the Assam Land Revenue Regulation,
1886 as well as the policy of the Government was taken into consideration. It is
respectfully stated that the law laid down by the Hon’ble Supreme Court in
respect of V.G.R.s and P.G.R.s provides that village common lands should be
kept encroachment free and not be settled with anyone except for community
purposes in exceptional cases and in no case the area under V.G.R.s and P.G.R.s
be reduced to less than 5% of the total village land area.”
13. The law laid down by the Hon’ble Supreme Court with regard to VGR land is
clear. In the case of Jagpal Singh & Ors. (supra), the Hon’ble Supreme Court has
made the following observations:
“23. Before parting with this case we give directions to all the State
Page No.# 7/9Governments in the country that they should prepare schemes for eviction of
illegal/unauthorised occupants of the Gram Sabha/Gram
Panchayat/poramboke/shamlat land and these must be restored to the Gram
Sabha/Gram Panchayat for the common use of villagers of the village. For this
purpose the Chief Secretaries of all State Governments/Union Territories in
India are directed to do the needful, taking the help of other senior officers of
the Governments. The said scheme should provide for the speedy eviction of
such illegal occupant, after giving him a show-cause notice and a brief hearing.
Long duration of such illegal occupation or huge expenditure in making
constructions thereon or political connections must not be treated as a
justification for condoning this illegal act or for regularising the illegal
possession. Regularisation should only be permitted in exceptional cases e.g.
where lease has been granted under some government notification to landless
labourers or members of the Scheduled Castes/Scheduled Tribes, or where
there is already a school, dispensary or other public utility on the land .”
14. This Court also finds force in the contention of the learned State Counsel that
there would be no requirement of notice under Regulation 18(2) of the Assam Land
and Revenue Regulation in view of the law settled by the Hon’ble Division Bench in the
case of Salak Uddin (supra). In fact, Shri Borthakur, learned counsel for the petitioner
has fairly conceded to this aspect of requirement or otherwise, of such notice.
15. As regards the plea of discrimination, it clearly appears that such plea is based
on negative equality as possessing VGR land is impermissible in law. It may be stated
that the Hon’ble Supreme Court in the aforesaid case of Jagpal Singh & Ors. (supra)
has laid down strict conditions so as to ensure that all VGR and community lands are
made free from encroachment. This Court is also of the opinion that in view of such
clear direction, even the policy to give incentive to Small Tea Growers would not come
to the aid of the petitioner. Be that as it may, the communication dated 23.09.1994
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issued by the Revenue Department which has been placed on record has been
perused and the said communication is only with regard to the allotment of land to
three categories, namely:
i) Indigenous Youths coming from the families below the poverty line;
ii) Other indigenous educated unemployed youths;
iii) Co-operative of indigenous unemployed youths.
The said communication, however does not say anything de-reservation of VGR
land and in any case, has to be read in conjunction with the law laid down by the
Hon’ble Supreme Court that such land cannot be VGR land.
16. In the conspectus of the aforesaid discussion, this Court is of the opinion that
there is no scope for granting any relief to the petitioner.
17. The writ petition is accordingly dismissed and the interim order is vacated.
18. At this stage, the learned counsel for the petitioner submits that some time may
be granted to vacate the land as the same is under tea cultivation.
19. The aforesaid prayer is, however strenuously objected to by the learned State
Counsel who has submitted that in terms of the interim order, the petitioner has
already availed the benefits for the last 9 years.
20. Be that as it may, by balancing the equities, it is directed that a period of 45
days from today be granted to the petitioner to vacate the land in question. It is,
however made clear that after expiry of the aforesaid period, the respondent
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authorities would have all the liberty to go ahead with the eviction process. It is also
observed that such eviction process is not necessarily to be confined to the petitioner
but for clearing all VGR lands.
JUDGE
Comparing Assistant
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