Smt. Saraswati Johori Padun - Kamrup(M) District Judiciary

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HIGH COURT FORM NO. J (2)

HEADING OF JUDGEMENT IN ORIGINAL SUIT

District :Kamrup (M)

Present: Smt. Saraswati Johori Padun, LL.M, AJS.

On this 10th day of July, 2019

Title Suit No - 301 of 2013

Bimala Prasad Chaliha Nagar Unnayan Committee

Represented by Sri Bhumidhar Kalita,

S/o Late Bhagiram Kalita,

The Secretary and Ekramul Mazid,

S/o Late Anamol Mazid,

The president of the said committee,

Bimala Prasad Chaliha

Nagar – Hengrabari, Guwahati – 36,

P.S. Dispur,

Dist. Kamrup(M), Assam.

…Plaintiff

-Vs-

1. The State of Assam

Represented by the Commissioner and Secretary,

Govt. of Assam, Land and Revenue Department,

Dispur, Guwahati – 6, Assam.

2. The Deputy Commissioner,

Kamrup(M), Panbazar,

Guwahati – 1, Assam.

3. The Guwahati Metropolitan Development Authority

(G.M.D.A)

Represented by the Chief Executive Officer,

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G.M.D.A., Bhangaghar,

Guwahati – 5, District Kamrup(M), Assam.

4. The Gauhati Municipal Corporation,

Represented by the Commissioner, GMC,

Panbazar, Guwahati – 1.

5. The Commissioner,

Gauhati Municipal Corporation, Panbazar,

Guwahati – 1, District Kamrup(M), Assam.

...Defendants

This suit/case coming on for final hearing on 02.07.2019 in the presence of :

Mr. Ashan Ali,

Mr. Kulendra Bhatta,

Mr. Pranab Medhi and

Mr. Abdul Rob, Advocates for the Plaintiffs; and

Mr. Aliwala R. Molier,

Mr. Ranjit Kr. Dev Choudhury and

Miss Lovely Devi Advocates for the Defendant no.3,4 & 5

and having stood for consideration to this 10th day of July, 2019 the Court

delivered the following Judgment

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JUDGMENT

1. The present title suit has been filed seeking permanent injunction and for

protection over the Bimala Prasad Chaliha Road which is used by the

people of Bimala Prasad Chaliha Nagar and the public at large.

2. Plaintiff’s case in brief:

This suit is concerning a Gobat which was developed

into a wide motorable road known as the Bimala Prasad Chaliha Road

(hereinafter referred to as the “suit road”). The claim of the plaintiff is

that they have easement rights over this suit road. The Plaintiffs state

that this suit road is the shortest road for the people of locality to get into

the main city of Guwahati through VIP Road. As such the people of the

locality have developed this gobat/road and turned it into a 40 feet wide

busy road. The plaintiff committee claim to have done a lot of work from

earth filing to gravelling portions of the said Bimala Prasad Chaliha Road.

The Plaintiffs claim that the defendants are constructing a wall which will

block the front entrance of the suit road and will cause huge hardship to

the plaintiff as well as all the members of the locality who will suffer huge

loss and inconvenience, and as such has instituted this suit praying for

permanent injunction against the defendants. Hence the present suit.

3. The suit is ex-parte against the defendant no. 1 to 5. The defendant no. 4

& 5 were impleaded later on.

4. Defendants’ case in brief:

The answering Defendant No.3, namely Guwahati Metropolitan

Development Authority (Hereinafter referred to as, “GMDA”) filed their

written statement praying for the instant suit to be dismissed. The

defendant claims that the portion of suit land referred to by the plaintiff

falls within water body called Silsako Beel which is a notified and

protected water body/wet land falling under schedule III of the Guwahati

Water Bodies (Preservation and Conservation) Act, 2008.

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The answering defendant has stated that after the enactment of

the Guwahati Water Bodies (Preservation and Conservation) Act, 2008

(hereinafter referred to as the “Act”) the state government of Assam had

taken concrete steps towards construction of a boundary wall around the

Silsako Beel and a scheme for construction of 1800 metre lengthy of

boundary wall was sanctioned under the Annual Operational Plan 2011-12

and the GMDA was entrusted to execute the said scheme. At the time of

filing the written statement nearly 800 metres of the boundary wall had

been completed. The Defendant are as such constructing wall around the

Silsako Beel as per the demarcation carried out by the Revenue

Department of the Government.

5. After careful examination and perusal of the pleadings, my learned

predecessor this Court has proceeded to frame the following issues in

order to arrive at a definite finding vis a vis the dispute in this case:

I. Whether the suit is maintainable in law?

II. Whether there is any cause of action for the suit?

III. Whether the plaintiff is entitled to get the decrees as prayed

for?

IV. To what other relief/reliefs the parties are entitled to?

6. In order to substantiate their claim, the plaintiff’s have examined 5

witnesses and has exhibited documentary evidence described in the

appendix of this judgment. The learned Advocate after cross-examining

the PW1 to PW2 declined to cross-examine the remaining three witnesses

of the Plaintiff. The defendant no.3 apart from submitting his written

statement has not adduced any evidence.

7. I have heard the arguments advanced by the learned counsels’ of both

sides. I have perused the case record in detail

DECISION AND REASONS THEREOF:

8. Decision on issue no. I :

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This issue relates to the cause of action for the suit. The Plaintiffs

have asserted their easementary right over the suit land on the ground

that they have been using the suit land as Gobat for more than 20 years.

The defendants have denied the claim of the Plaintiffs on the ground that

the suit land is a protected wet land and the Plaintiffs can have no

manner of right on it. Thus, there is a dispute regarding the use of suit

land as Gobat and as such I am of the view that there is cause of action

for the suit.

Accordingly issue no I is decided in the affirmative.

9. Decision on issue no. II:

This issue relates to the question of maintainability of the suit.

The plaintiff in the present suit is a non-government village

committee registered under the Societies Registration Act, 1860. PW-1

Sri Bhumidhar Kalita, secretary of the plaintiff committee in his evidence

on affidavit marked and proved the Certificate of Registration of Societies

of Bimala Prasad Chaliha Nagar Unnayan Committee as Exhibit-8. As

such this Court has no reservations towards allowing the plaintiff

committee to file the instant suit through the representatives of the

society.

The plaintiff have alleged that the cause of action arose on

13.08.13 when police personnel and G.M.D.A. authority illegally

attempted to block the Bimala Prasad Chaliha Road over which the people

of Bimala Prasad Chaliha nagar have enjoyed easementary rights for

many years. As such the instant suit and prayer for permanent injuction.

Perpetual Injunction falls under Section 38 of the Specific Relief

Act, 1963 and at this stage it would be prudent to state that any prayer

for permanent injunction can only be granted by a decree which is made

at the hearing and upon the merits of the suit. As such, it can be granted

only on passing of Judgment and decree.

In Mirabai Films Pvt. Ltd. –VS- Hathway cable and

Datacom pvt. Ltd., AIR 2002 Del 433, it was held that “The perpetual

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injunction can only be granted by the decree made at the hearing and

upon the merits of the suit. It is, in effect, a decree of the court...”

At this juncture, this Court will first look into whether the plaintiff

have any rights with regard to the question of maintainability of the

instant case.

Easement rights of the Plaintiff:

10. The Ld. Counsel for the plaintiff has submitted that the plaintiff has

enjoyed easementary rights over the suit road. It is interesting to note

that the plaintiff in their plaint have not stated any actual or specific

number of years wherein they have enjoyed easementary rights over the

suit road. However, on careful perusal of the letter dated 14.05.2012

addressed to their representative M.L.A., Dispur Constituency marked

and proved as Exhibit-9 in the evidence of affidavit, PW-1 has

categorically stated that they have been enjoying easementary rights

“since 20 years” in the letter.

11. It should be noted at this point that even though the Indian Easements

Act is not applicable in the state of Assam, however its principle and spirit

remain to be applicable.

Herein I would like to refer the case of Sri Girin Ch. Das Vs. Sri

Niranjan Baruah and Ors, passed in RSA 203/2004, dated

13.07.2015 the Hon’ble Guwahati High Court held as follows:

“17. Though the Indian Easement Act, 1882 (hereinafter

referred to as ‘the Act’) is not in force in Assam, there is no

dispute at the Bar that the principles underlying the provisions of

the Act can be applied. Under Section 15 of the Act, where aa

right of way or any other easement has been peaceably and

openly enjoyed by any person claiming title thereto, as an

easement and as of right, without interruption, and for twenty

years, the right to such easement shall be absolute and the period

of twenty years shall be taken to be the period ending within two

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years next before the institution of the suit, wherein the claim to

which and period relates is contested.

18. Under Section 25 of the Limitation Act, 1963, which deals

with acquisition of easement by prescription, where any way or

watercourse or the use of any water or any other easement

(whether affirmative or negative) has been peaceably and openly

enjoyed by any person claiming title thereto as an easement and

as of right without interruption and for twenty years, the right to

such access and use of light or air, way, watercourse, use of water

or other easement shall be absolute and indefeasible and where

the property over which a right is claimed belongs to the

Government, the period shall be thirty years”

12. It is significant to mention here that the PW-1 has admitted that the

Bimala Prasad Chaliha Road falls within the Silsako Beel. Para 3 of his

evidence of affidavit states, “the said Bimala Prasad Chaliha Road crosses

a portion of the easternmost side of the Government Dag No. 602 which

has been kept by the Government as barren land, which is also known as

Shilsako Beel as the land of Dag No. 602… .”

It is a settled position of law that an admission is the best

evidence against the maker and this Court taking cue from this premise

finds that the admissions of the plaintiff are relevant on 2(two) counts

which are further is discussed herein:-

First: – By their own admission, the plaintiff in letter dated

14.05.2012 marked and proved as Exhibit-9 categorically states that

the Bimala Prasad Chaliha Path at Hengrabari Road has been used by the

people “since 20 years.” Even if this Court were to proceed merely by

the principles and spirit of the Easement Act, any claim for easement

subsisting over a government land would have to be weighed in for at

least 30 years before such right matures for the plaintiff, which under the

facts of the instant case plaintiff are unable to rightfully assert. As such,

this Court finds no substance to the veracity of the plaintiff’s claim of

easement over the Bimala Prasad Chaliha Road which is by their own

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admission a government road falling under Dag No. 602. Even on an

application of section 25 of the Limitation Act, 1963 which deals with

acquisition of easement by prescription, where the property over which a

right is claimed belongs to the Government, the period shall be thirty

years. As such it cannot be said that the plaintiff have easementary

rights over Bimala Prasad Chaliha Road.

Second : - The second admission of the plaintiff proves with all

certainty that the suit road Bimala Prasad Chaliha Road falls within a

protected area. Silsako Beel is a protected water body. By the plaintiff’s

own admission, the suit land, i.e., Bimala Prasad Chaliha Road falls within

the Silsako Beel which is a notified water body falling under Schedule III

of the Guwhati Water Bodies (Preservation and Conservation) Act, 2008.

For better understanding, Beel (in Assamese) are wetlands which provide

habitats for a large number of flora and fauna and are essential in

allowing for the natural environment to thrive and subsists as they also

serve as storm water reservoirs.

It is also pertinent to mention here one of the causes of flood in

Assam is the destruction of the wetlands. In Guwahati also one of the

reasons for flood is the encroachment of wetlands like the one in dispute

today. Mention here may also be made of encroachment case of Deepor

Bheel.

Here I would also like to mention the case of M.K. Balakrishnan

and Ors V. Union of India and Ors (2009) 5 SCC 507 wherein the

Hon’ble Supreme court expanded the meaning of “wetlands” to include

ponds, tanks, canals, creeks, water channels, reservoirs, rivers, streams

and lakes. The Hon’ble Apex Court in the same case further went on to

observe that one of the main reason for acute shortage of water in the

country is that most of the water conservation bodies such as ponds,

tanks, small lakes etc. have been filled up in recent times by “some

greedy persons” who have constructed buildings, shops etc. on the same.

It is the pleadings of the Defendant no.3 that in pursuance to the

protection and preservation of Beels in the state of Assam, the State

Government had taken steps and measures for the construction of wall

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around the Silsako Beel which was entrusted to be carried out by the

GMDA. After the enactment of Guwahati Water Bodies (Preservation and

Conservation) Act, 2008, the state government of Assam had taken

concrete steps for construction of 1800 metre length of boundary wall

which was sanctioned under the Annual Operational Plan 2011-12 and

accordingly Defendant No. 3 GMDA was entrusted with executing of the

said scheme. A budget of 2.5 crores was also entrusted for this end and

vide Order of this Court the answering defendant No. 3 produced a letter

by Shri D. R. Rajbangshi, ACS, Deputy Secretary, Guwahati Development

Department dated 14th February, 2012 to the Principal Accountant

General (Audit), Assam. The relevant portions of the letter dated 14th

February, 2012 is hereby reproduced as below:

“I am directed to say that the Governor of Assam is pleased to

accord Administrative Approval for an amount of Rs. 250.00 Lakhs

(Rupees Two Crores Fifty Lakhs) only and Financial Sanction for

an amount of Rs. 135.00 Lakhs (Rupees One Crore Thirty Five

Lakhs) only for Construction of Boundary Wall & Fencing at

Silsako Beel (Phase-I), Guwahati under Annual Plan 2011-

2012…”

13. Now since Silsako Beel is a notified water body under schedule III of the

Act, the Defendant claim that a duty and obligation is cast upon the

GMDA to protect, preserve and conserve water bodies by law and

therefore no citizen is entitled or can be permitted to obstruct a statutory

body from carrying out its statutory duties nor can they stake any claim

over any portion of the water body as has been sought to be done in the

instant case.

14. The answering defendant No.3 claim that these Beels have been

encroached upon and also filled up by the Plaintiff. Interestingly, this

allegation in fact is also corroborated by admission of the plaintiff in their

plaint and in their evidence in affidavit. The plaintiff in the plaint stated

that they had indeed “filled up” the gobat falling within the Silsako beel

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which is now being used as the suit road, i.e., Bimala Prasad Chaliha

Road and have now eventually turned it into a 40 feet wide road. As

explained, Silsako Beel is a notified waterbody and it is imperative that

these waterbodies are protected. A reproduction of para 3 of the plaint

wherein the plaintiff has admitted to the same is herein reproduced

below:

“3. … In that way the Gobat turned to be 40 feet wide busy

road. The plaintiff committee has done a lot of work from earth

filing to gravelling portions of the said Bimala Prasad Chaliha

Road.”

15. This has also been stated by PW-1, PW-2, PW-3, PW-4 and PW-5 in their

respective evidence-in-affidavit in which all of them have admitted and

corroborated to the same. Relevant portion of the evidence in affidavit is

herein reproduced below:

“4. That the Bimala Prasad Chaliha Road is one of the road

which has been developed by the people of the locality and being

used by the people as the nearest access road to their houses

from V.I.P. road. In that way the Gobat turned to be a 40 feet

wide busy road. The plaintiff committee has done a lot of work

from earth filling to gravelling portions of the said Bimala

Prasad Chaliha Road.”

16. It is most pertinent to note that the letter dated 27th June 2011 by Dr.

A.K. Bhutani, IAS, Commissioner & Secretary, Guwahati Development

Department to the CEO, GMDA in compliance with the direction of my

learned predecessor and vide Order of this Court had also confirmed that

encroachment and “land filling” had been taking place over the Silsako

Beel. The relevant portions of the letter are herein reproduced below:

“…The State Government has passed the ‘Guwahati Water Bodies

(Preservation and Conservation) Act, 2008,’ with a view to

preserve the critical bodies of Silsako Beel, Borsola Beel, Sorusola

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Beel, Deepar Beel and Bondajan. It has come to the notice of

that encroachment has been taking in these Beels

specially in the Silsako Beel including land filling which is

expressively prohibited under the provisions of the above

mentioned Act. There is a need therefore, to fence the Khas

land within the Beel area by way of putting concrete pillars and

band wire after proper demarcation in order to prevent

encroachment and to ensure preservation of the Silsako Beel.”

17. This allegation in the letter dated 27th June 2011 harmoniously

corroborates with the admission of the plaintiff who have admitted in

their plaint that they have filled up the Bimala Prasad Chaliha road and

made it into a 40 feet wide road. This illegal act of the plaintiff proves

that they have indeed been caused damage to the Silsako Beel by filling

up the Beel area. This Court therefore believes that if the plaintiff and

the neighbouring areas are to continue using the road as is admitted,

much more damage would be caused to the Beel leading to the eventual

extinction of the Silsako Beel and detriment effect upon the environment.

18. Section 4 of the Guwhati Water Bodies (Preservation and Conservation)

Act, 2008 expressly prohibits any “land filling” or “construct any

structure” in Silsako beel. Section 4 of the Act which deals with the

restriction on land falling under the category of “waterbodies.” These

restrictions stated in the Act are herein reproduced below:

4. ) Notwithstanding anything contained in any other laws enacted

by the State Legislature which are in the time being in force in

Assam, the area of land specified in the Schedules I, II, III and IV

of this Act shall be used as waterbodies and no person after

coming into force of this Act shall:

(i) undertake any activities including the filling up of

waterbodies which may cause damage or reduce the size

of the waterbodies;

(ii) construct or erect any structure in the waterbodies;

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(iii) dump or throw solid waste or garbage in the waterbodies;

(iv) extend or reinforce of any building standing upon the

waterbodies;

(v) carry out any kind of business except fish curing, aqua

culture, conservation measure and flood control measures,

that too with the specific previous permission of the

Competent Authority.

19. The Supreme Court of India in a plethora of cases have held that

protection of the environment is of paramount importance as it enables

the citizens of the country to enjoy the right to life encompassed under

Article 21 of the Constitution. In the case of Hinch Lal Tiwari v.

Kamala Devi, AIR 2001 SC 3215, the Apex Court observed (vide

paragraphs 13 and 14) that:

“13. It is important to note that material resources of the

community like forests, tanks, ponds, hillock, mountain etc. are

nature's bounty. They maintain delicate ecological balance. They

need to be protected for a proper and healthy environment which

enable people to enjoy a quality life which is essence of the

guaranteed right under Article 21 of the Constitution. The

Government, including revenue authorities, i.e. respondents 11 to

13, having noticed that a pond is falling in disuse, should have

bestowed their attention to develop the same which would, on

one hand, have prevented ecological disaster and on the other

provided better environment for the benefit of public at large.

Such vigil is the best protection against knavish attempts to seek

allotment in non-abadi sites.

14. For the aforementioned reasons, we set aside the order of the

High Court, restore the order of the Additional Collector dated

February 25, 1999 confirmed by the Commissioner on March 12,

1999. Consequently, respondents 1 to 10 shall vacate the land,

which was allotted to them, within six months from today. they

will, however, be permitted to take away the material of the

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houses which they have constructed on the said land. If

respondents 1 to 10 do not vacate the land within the said period

the official respondents i.e. respondents 11 to 13 shall demolish

the construction and get possession of the said land in accordance

with law. The State including respondents 11 to 13 shall restore

the pond, develop and maintain the same as a recreational spot

which will undoubtedly be in the best interest of the villagers.

Further it will also help in maintaining ecological balance and

protecting environment in regard to which this Court has

repeatedly expressed its concern. Such measures must begun at

the grass-root level if they were to become the nation's pride.”

20. Even on a closer look into the preamble of the Guwahati Water Bodies

(Preservation and Conservation) Act, 2008, makes it amply clear of the

intention of the Legislative Body enacting the Guwahati Water Bodies

(Preservation and Conservation) Act, 2008. It would be proper to

reproduce the preamble of the Act herein below:

“Whereas it is expedient to provide for preservation, protection,

conservation, regulation and maintenance of waterbodies and to

develop the waterbodies into natural water reservoir and convert

into eco-tourism recreation centre to suit the ecological balance

within the jurisdiction of Guwahati Metropolitan Development

Authority and to protect the water bodies from the encroachers

and damages and the matters connected therewith or incidental

thereto:”

21. Silsako Beel has been declared as a water body under schedule III of the

Act. “Waterbodies" is defined under Section 2(e) of the Act as an area or

areas of land wherein the rain water accumulates and act as natural or

storm water reservoir and shall include wetland. On bare reading of the

preamble of the Act state that the purpose of the Act is for “preservation,

protection, conservation, regulation and maintenance of waterbodies.”

The preamble also states that part of the aim is to protect and preserve

water bodies from encroachers and damages and matters connected and

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incidental thereto. The actions of the plaintiffs in filling up the gobat into

a 40 feet wide road is undoubtedly one that has caused damage to the

waterbody.

22. The penal provisions of this Act are provided under section 6 which state

that any violation of the section is a cognizable offence and is punishable

with imprisonment for term which may extend to 3 years. Also under the

Act, the answering Defendant No.3, Guwahati Metropolitan Development

Authority (GMDA), is the competent Authority under the Act to enforce

the preamble of the Act. As such their construction of the wall is

completely justified.

23. Under the fact and circumstances discussed above, this Court is of the

opinion that the acts of plaintiff who have earth filled and graveled

portions of the Silsako Beel will eventually lead to its extinction if this is

allowed to persists. As such, this argument of the plaintiff goes against

them.

24. The Hon’ble Supreme Court in the case of State of Orissa v.

Government of India and Anr. JT 2009 (2) SC 233 held that right to

get water is a part of right to life guaranteed under Article 21 of the

Constitution. The relevant paragraphs are herein reproduced below:

“43.In my opinion the right to get water is a part of right to life

guaranteed by Article 21 of the Constitution. In this connection, it

has been observed in Delhi Water Supply & Sewage Disposal

Undertaking and Anr. v. State of Haryana and Ors.:1996CriLJ1887

:

‘1. Water is a gift of nature. Human hand cannot be permitted to

convert this bounty into a curse, an oppression. The primary use

to which water is put being drinking, it would be mocking nature

to force the people who live on the bank of a river to remain

thirsty,…’

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63. Similarly in Chameli Singh and Ors. v. State of U.P. and Ors. :

AIR1996SC1051 this Court observed:

‘8. ...Right to live guaranteed in any civilized society implies

the right to food, water, decent environment, education, medical

care and shelter. These are basic human rights known to any

civilized society. All civil, political, social and cultural rights

enshrined in the Universal Declaration of Human Rights and

Convention or under the Constitution of India cannot be exercised

without these basic human rights.”

As such this Court finds that the plaintiff have no easement

right over the Bimala Prasad Chaliha Road and further have no

rights whatsoever to any claim of perpetual injunction before this

Court. As such, I am of considered opinion that the suit of the

Plaintiffs is not maintainable in law.

Accordingly this issue is decided in the negative and

against the Plaintiff.

25. Decision on issue no III:

In view of my decision and reasons discussed in issue no. II

having established that the plaintiffs have no right to claim easementary

rights over the suit land, this Court is convinced that stopping any

construction of the boundary wall upon the Defendant would be

detrimental to the Silsako Beel. Accordingly it is held that the Plaintiff is

not entitled to relief prayed for in this suit.

Order

In the result this suit is dismissed on contest with cost. it is held

that the plaintiff is not entitled to relief as prayed for in this suit.

Prepare decree accordingly

Given under my hand and seal of this Court this 10th day of July 2019.

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Munsiff no.1

Kamrup (M), Guwahati

APPENDIX

A. Plaintiff’s Witnesses

PW1 – Sri Bhumidhar Kalita

PW2- Md. Ikramul Mazid

PW3- Md. Khabir Ali

PW4- Md. Khair Ali

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PW5- Md. Abdul Ali Ahmed

B. Plaintiff’s Exhibits

Ext.1- Summons

Ext.2- Authorisation letter

Ext.3- cadastral map

Ext.4- Summons to witness

Ext.5- Authorisation letter dated 03.06.2015

Ext.6- Report showing tearing of Chita of Old Dag no. 602

Ext.7- cathadastral Map

Ext.8- certificate of registration of societies

Ext.9- Letter dated 14.05.2012 by the People of Bimal chliha Nagar

Ext.10- copy letter dated 22.11.2012 addressing Minister of

Revenue Dept.

Ext. 11- copy of letter dated 04.12.2012 issued by Sri P.K. Bora Joint

Secretary Govt. of Assam to Deputy commissioner Kamrup(M)

Ext.12- copy of letter dated 05.03.2013 issued by the Addl. Deputy

Commissioner, Kamrup(M) to Circle Officer, Dispur Revenue Circle.

Ext.13- Resolution dated 11.08.2013

Ext.14- NOC issued by the GMDA

Ext.15- Land Use Certificate dated 28.09.2012

Ext.X- Summons to witness

C. OFFICIAL WITNESS

Sri chandan Kr. Nath

Sri Arunchandra Goswami