Gauhati High Court disposes PIL directing authorities to allow public entry during pond construction

The Gauhati High Court disposed of a Public Interest Litigation (PIL) filed alleging that the respondent authorities decided to construct a pucca structure-boundary wall surrounding the Na-pukhuri pond without there being any entry for the public and the cultivators who cultivate the nearby land.

The petitioner has prayed for the following relief; 

 “i) A writ in the nature of Mandamus and/or any order appropriate writ, declaration or orders of the like nature shall not be issued commanding the Respondents not to obstruct the only linked way at the southern side of the bank of the Na-pukhuri for cultivation of about 200 (two hundred) Bighas of patta land of the pattadars, their men, agents, and to keep at least a minimum standard of linked way to that cultivated field measuring 14 feet wide and 290 feet length through the southern bank of the Na-pukhuri and also not to obstruct public of the locality to enter into the Na-pukhuri for use of public as before. 
ii) To preserve the Na-pukhuri and cause beautification by Govt. of Assam, so that the very object of its digging the Na-pukhuri in the year 1925 for public good may not be defeated with the passes of time as the Nalbari Medical College & Hospital has its own 132 (one hundred thirty two) Bighas of acquired land for its construction and land of the Na-pukhuri shall not be used otherwise for it was meant for.”  

It is the case of the petitioner that as Nalbari Medical College and Hospital has been developed, the access to Napukhuri would be affected and no access shall be available to the general public and to the pattadars and it is also the case of the petitioner that such action is not only arbitrary but also violative of Article 14 of the Constitution of India. The petitioner has also heavily relied upon the representation dated 07.08.2017 addressed to the Minister of Health, Govt. of Assam, Dispur as well as the communication dated 26.06.2020 addressed to the Deputy Commissioner, Nalbari, Assam. It is the further case of the petitioner that as provided under Article 51 A(1) of the Constitution of India, it is the fundamental duty of every  citizen of that locality to safeguard the Na-pukhuri, which is a public property and no violence to destroy that public property can be permitted. 

It is also the case of the petitioner that as mentioned in Schedule-A of the paper book, on construction of Nalbari Medical College and Hospital at Ghagrapar, 132 bighas of land has been utilised which also includes public Na-pukhuri and the same is violative of Article 21 of the Constitution of India. It is also the case of the petitioner that the respondents should keep 14 feet wide and 290 feet length approach way to the cultivated land of the nearby cultivators at the southern side of the Na-pukhuri. 

It is also contended by the petitioner that as the only way available to the cultivators to approach their cultivated land through the southern bank of Na-pukhuri was locked on 15.11.2021, the present petition has been filed. The petitioner has also relied upon the representations as well as certain photographs.  

In response to the notice issued by the High Court, the respondent No.2 (the Commissioner and Secretary , Assam) has filed an affidavit-in-opposition and has contended that the construction of Nalbari Medical College and Hospital is undertaken for greater interest of the local people of entire Nalbari district and for welfare of the people of Assam. It is also contended by the respondent No.2 that construction of a pucca boundary wall is of utmost concern from protection and security point of view in the campus. It is specifically averred that there is already a provision of 1.00 meter wide gate which will allow access to the Na-pukhuri pond. 

It is specifically averred in the affidavit that Na-pukhuri pond will be kept intact in future with a small gate for entrance and further denying the contentions raised by the petitioner that the Na-pukhuri pond shall be destroyed, it is contended that the provision of entrance gate at the bank of Na-pukhuri will facilitate easy entry of  local people to the pond. As far as the contention as regards the way for the cultivators to their cultivated land, the respondent No.2 has contended that there are already alternative ways in the South and West side of the Na-pukhuri and the nearby cultivators can have the access to their land through the said road. It is specifically averred that there is no provision to construct any structure over and around the pond.

The petitioner has filed its reply and has contended that the 1.00 meter wide gate does not cover the needs of the general public and that there is violation of the right and the decision is taken in violation of the natural justice and other equitable justice by obstructing the right of public way to the cultivated land. It is also contended that the pattadars of 200 bighas of cultivated land will face a dangerous effect of socio -economic as most of the part of the cultivated land will remain idle.   

The state government has contended that the pond is not used largely by the public and is filled with water hyacinth and other aquatic plants. The deponent has also relied upon the google map showing the Na-pukhuri and the roads around.   
The Counsel appearing for the parties have reiterated the contentions raised in the petition/opposition/reply. 

Having considered the facts available on record of the petition and considering the submissions made, the Division Bench of Chief Justice Rashmin Manharbhai Chhaya and Justice Soumitra Saikia held that it is a matter of fact that the land in question is used for a public purpose, i.e. setting up of a medical college. As informed by the  Advocate General that the State of Assam as a matter of policy has decided to have one medical college and hospital in every district and hence the purpose for which the land is put to use is a necessity as on date. 

Considering the correspondence brought on record by way of opposition filed by the respondent Nos.1 and 2, the High Court noted that no road or right of ways is provided as tried to be canvassed by the petitioner from the land which has been developed for Nalbari Medical College and Hospital. It is stated on oath by the respondents that a gate shall be kept for ingress and egress to the pond even by the general public. As far as the contention of cultivators is concerned, considering the averments made by the respondent No.1 as well as the report of the Circle Officer along with the google map, it clearly transpires that there was never a road  at Borigaon village under Ghograpar Revenue Circle either in map or in field. The report of the Circle Officer also indicates that the pond was never a way to 200 Bighas of agricultural land and moreover, there are pucca roads on three sides of the land which is adjacent to the Na-Pukhuri pond. Hence, the Court noted that there are multiple alternative ways to approach the agricultural land near the Na-Pukhuri. There is no contrary material on record to disbelieve the report of the Circle Officer which is based on cogent evidence and documents of the State available on record.   

Considering the aforesaid, the  High Court opined that the apprehension on the part of the petitioner that the cultivators will have no way to reach their cultivated land, is baseless as there are three pucca roads and there was no access from Dag No.486 to the cultivated land. In addition to that, the respondents have declared before the High Court that a gate shall be provided for ingress and egress for the general public to the pond. The respondents have also stated on oath that the area of Na-Pukhuri pond is not affected at all.  

However, while disposing of the petition, the following directions are given by the High Court;

i) the respondent authorities shall make provision of a gate measuring 1.00 meter width to access Na-Pukhuri pond at village-Borigaon (Dakhingaon), Nalbari for local public at large and the same shall be permitted to be used by the general public. 

ii) the respondents shall not in any manner change the position of NaPukhuri pond and no area of the pond shall be reduced.