IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL

PRADESH)

CIVIL ORIGINAL JURISDICTION)

Writ Petition (Civil) No. ..................... of 2020

IN THE MATTER OF A PUBLIC INTEREST LITIGATION

BIRENSING BEY …………. PETITIONER

STATE OF ASSAM ……….... RESPONDENT 1

DIPHU MUNICIPAL BOARD …………. RESPONDENT 2

A CIVIL WRIT PETITION IN PUBLIC INTEREST UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA.

To,

THE HON’BLE CHIEF JUSTICE OF GAUHATI AND HIS COMPANION JUDGES

OF THE HON’BLE HIGH COURT OF GAUHATI, AT GUWAHATI.

GUWAHATI FILED
BY

DATED: DECEMBER 15TH 2020

The Humble
Petition of the

Petitioner above-named.
MOST RESPECTFULLY SHOWETH: -

1. Particulars of the cause against which the petition is made:

Subject-matter in brief:
ENCROACHMENT ON GOVERNMENT LAND DEMARCATED FOR
CHRISTIAN CEMETERY, SITUATED AT RONGTHELU & THE INACTION ON
THE PART OF THE RESPONDENT NO. 2.
2. Particulars of the Petitioner:
3. Declaration and undertaking of the petitioner:
A. The present petition is being filed by way of public interest litigation and the
petitioner is having no personal interest in the instant Public Interest
Litigation.
B. That the entire litigation cost and other charges are being borne by the
petitioner.
C. That to the best of the petitioners’ knowledge and research, the issue raised
was not dealt with or decided and that a similar or identical petition was not
filed earlier by him.
D. That the petitioner has understood that in the course of hearing of this petition
the Court may require any security to be furnished towards costs or any other
charges and the petitioner shall comply with such requirements.
4. Facts constituting the cause:
A. That this is in pursuance to the piece of land situated at Rongthelu. The said
land is a Government Land demarcated for Christian Cemetery which is/has
been encroached by one Mr. Joyram Tisso S/o Late Mongolsing Tisso.
B. That a notice dated 12.10.2005 u/s 159 and 161 of The Assam Municipal Act
1956 was served to the encroacher but no reply to the said notice was given.
The Legal Notice dated 14.10.2005 is annexed herewith and marked as
ANNEXURE-1.
C. That the encroacher filed a civil suit No. 476/03 titled as Joyram Tisso v/s
Rongthelu Development committee before the Chief Judicial Magistrate to
obtain permanent injunction for the said land. On 14.07.2008, the Learned
Court passed an order in favour of Rongthelu development committee and
 directed the encroacher be removed from the Public land by following due
process of law. The operative part of the order is reproduced herein below:
The order dated 14.07.2008 is annexed herewith and marked as ANNEXURE-
D. That the encroacher filled an appeal against the order dated 14.07.2008 before
the District Judge, Diphu and the same was dismissed and the order dated
14.07.2008 passed by the Chief Judicial Magistrate was upheld vide order
dated 08.05.2015. The order dated 08.05.2015 is annexed herewith and
marked as ANNEXURE-3.
E. That it has been more than 7 years since the order was passed by the Chief
Judicial Magistrate to remove the encroacher from the Government land but
there has been persistent inaction by the Respondent in executing the order
dated 14.07.2008 and 08.05.2015 which amounts to contempt of court under
Section 2(b)of The Contempt of Courts Act, 1971, which states that “civil
contempt” means wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking given
to a court.
F. That the said property is a government property having valuation of more than
75lakhs (market value) years back but due to the lapses and collusion of the
officials and staff of the Respondent No. 2, the encroacher is still in possession
of the land where he has demolished and sold the valuable antiques and the
statue of Mother Mary and other religious objects which can be termed as
theft, and dishonestly or fraudulent removal or concealment of property.
G. That the encroacher has constructed four rooms on the property which
amounts to an illegal construction under Assam Municipal Act, 1956 which
under section171(1) states that “no person shall erect, materially alter or re-
erect any building without sanction of the board”.
H. That it is also important to mention here that the encroacher (Mr. Joyram
Tisso) is/was a Government Servant (PWD) and has taken advantage of his
influences to enjoy the benefits of the Government Property alone which is
criminal breach of trust under Section 405 of Indian Penal Code by public
servant as property of cemetery is being entrusted to him to take care off.
I. That the supra facts clearly establish that the government should take
necessary actions to remove the encroachment and utilize the land for the
benefit of Public at large. With the increasing development in the country,
 there is an urgent need to utilize the land for the interest of Public. The
Respondents are challenged on the following amongst other grounds.
5. Source of information:
That the source of information of the facts is from internet. The source has been
personally verified by the petitioner.
6. Nature and extent of injury caused/ apprehended:
That the non-execution of the order dated 14.07.2008 & 08.05.2015 will cause
irreparable loss to the Public at large.
7. GROUNDS:
A. That the inaction by the Respondent No. 2 has caused prejudice to general public and
lost faith in Respondent No. 2. It has been more than 11 years of first decree of the
civil court and 7 years of the order of the appellate court, but sadly the Respondent
has shown a laid back approach in the execution of the decree. Despite the positive
and favourable order, the Respondents are least bothered to take over the possession
of the government land by following due process of law.
B. That due to the abstruse delay in taking over the possession of the said land, it is the
public of our country who is suffering. The government land could have been used for
the interest of public in so many ways but sadly no efforts are made to get released the
land in possession of the encroacher. It is pertinent to mention here that the
encroacher is a Government Employee and he is misusing his power by not releasing
the government Land. The government Land could be utilized for the service of the
Community and poor citizens of the State.
C. That in the recent years, there has been a grave concern that as the population is
increasing, space to bury the dead is fast shrinking. It is the duty of every State under
the Constitution of India to provide cemetery to every religion for the purpose of
maintaining secularism in the nation. In today’s date, graves are stacked on top of
each other or the same spot is being reused every five years as space runs out in the
capital and hence burying the dead is posing some unforeseen challenges. This is a
serious concern for the nation and in spite of such difficulties in the entire country
about space for graves, the Respondents have shown such a lackadaisical approach in
removing the encroachment and using the land for public interest.
D. That the government formulates certain policies for the development in the country.
The Directive Principles of State Policy are the guiding steps for the government to
form the policies. Article 37 of the Constitution of India states that the provisions
 given under Part IV of the Constitution cannot be enforced in the Court of law, but it
is the duty of the government to consider these principles in the governance of the
country. These principles have an educative value and also help the nation to maintain
its “welfare state” status and one of the directive principles is that “State to secure a
social order for the promotion of welfare of the people”. Unfortunately, despite these
principles, the Respondents have not taken up the responsibility of development of the
country/said land.
E. That the said land could have been used for ‘Public Purpose’ at large. The general
interest of the community, as opposed to particular interest of the individuals, may be
regarded as ‘public purpose’. Furthermore, Section 3(f) of Land Acquisition
(Amendment), Act 1984, gives an inclusive definition of the phrase public purpose.
Public purpose thus includes provision for village sites, town planning, planned
development of land from public funds and for further development of land for a
corporation owned and controlled by the state.
F. That according to Section5(2) of Public Premises Act, 1971 if a person fails or refuse
to act in accordance with the order, then the estate officer or any authorized person on
behalf of estate officer is authorized to take possession of the public premises and can
also use necessary force to take possession.
G. That the grounds stated above are without prejudice to and independent of one
another.
H. That the Petitioner craves leave of the Hon'ble Court to urge other and further grounds
in support of this writ petition at the time of its hearing.
I. That the Petitioner has no other alternative and efficacious remedy except the
invocation of the extraordinary writ jurisdiction of this Hon’ble Court.
J. That the court should set such an example so that in near future no such violation of
right confers with the public servant must not be misused.

8. Reliefs prayed for:

In view of the above view and circumstances stated above, it is prayed that this
Hon’ble Court in public interest may be pleased to issue the following direction to the
respondent:
A. Execute the order dated 14.05.2008 & 08.05.2015 passed by the Chief Judicial
Magistrate and the District Judge respectively.
 B. Take appropriate and necessary steps to safeguard the interest and welfare of
the Public by directing the government to utilize the land for the benefit of
Public at large.
C. Any other order or direction which this Hon’ble Court deems fit.

GUWAHATI
PETITIONER

DATED: DECEMBER 15TH 2020

THROUGH