PIL 69/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B.LOKUR HON’BLE MR JUSTICE U. B. SAHA (MADAN B. LOKUR, CJ) This writ petition has been filed in public interest by the Polo field Sanmilita Unnayan Parishad, claiming to be an association of the residents of Polofield, Tezpur. 2. The writ petition concerns an area of 9 Bigha 4 Katha and 2 Lech as of land in Polofield, Tezpur (for convenience referred to as the land in ques tion). Background facts: 3. It appears that the Darrang Cricket Association sought allotment of the land in question way back in July, 1982. On the basis of the application and after a perusal of the relevant records, the Deputy Commissioner, Darrang, Tezpur passed an order dated 15-10-1982. This order reads as follows :- File No.DGR-13/82 ORDER Received the resolution for the reservation of lands measuring about 9B 3K 14L c overed by Dag No.428(O)/387(N) on the basis of the application dated 8-7-1982 fi led by the Darrang Cricket Association as well as the report of the SDC, Sadar C ircle vide Letter No.1388 dated 13-10-1982. Within the said lands, the forest de partment has also planted saplings over 2K 10L of land. If these lands are allot ted to the Association, apart from training new players, it is felt that the lan ds will be used for same purposes in the future also. As such, after deliberating into the matter, part of the lands of Mahabh airab Mouza, Vill. Barikachuburi covered by Dag No.428/387 measuring about 9B 3K 14L is directed to be given in advance possession to Darrang Cricket Associatio n. It is to be noted that over these lands no permanent structures like houses e tc. shall be built or any other forms of construction shall be undertaken. Apart from these the saplings planted by the Forest department shall not be subjected to any damages. Inform all accordingly. Sd/- Ashok Saikia, D.C., Darrang, Tezpur, Dated : 15.10.1982 (Emphasis supplied) 4. It may be mentioned at this stage that according to the main con testing party, i.e. the Tezpur District Cricket Association, as per its knowledg e, there is no such order either in the revenue records or in any other relevant records. However, the Deputy Commissioner, Sonitpur, Tezpur has filed a counter affidavit in which the existence of such an order is not denied. Furthermore, i n a subsequent order dated 7-3-2007 passed by the Addl. Deputy Commissioner, Son itpur there is a reference to an order passed by the Deputy Commissioner. The re ference is, apparently, to the order dated 15-10-1982. Therefore, for the purpos es of deciding this petition, we are proceeding on the basis that the order date d 15-10-1982 does exist, although it may not be available on the official record s. 5. The importance of the order dated 15-10-1982 lies in the fact th at it clearly stipulates that the Darrang Cricket Association was to be given po ssession of the land in question subject to the condition that no permanent stru ctures like houses etc. would be built or any other form of construction underta ken on the land in question and the saplings planted by the Forest Department sh all not be subjected to any damage. 6. It appears that the Darrang Cricket Association became defunct o ver a period of time and another Association called the Tezpur District Cricket Association (the main contesting party) came into existence. The Tezpur District Cricket Association is respondent No.3 in the writ petition. 7. According to the public interest petitioner, the land in questio n is being used by the local people as a playground for children and budding spo rtsmen. It is also used as a place for morning walks, holding of school games et c. The petitioners are aggrieved by the exclusive use of the land in question as a cricket field by the Tezpur District Cricket Association thereby depriving th e residents of the area of their legitimate use of thereof. It is this that has compelled the local residents to file this petition in public interest. 8. This situation came to pass because on or about 28-12-2005 the T ezpur District Cricket Association made an application to the Hon’ble Minister ( Revenue), Govt. of Assam for allotment of the land in question for the interest of development of cricket in that part of the State. 9. Within a fortnight, on 10-1-2006 the Hon’ble Minister (Revenue) passed an order to the effect that he had visited the site and was satisfied tha t the land in question should be allotted to the Tezpur District Cricket Associa tion. The Deputy Commissioner, Sonitpur was asked to hand over possession of the land in question to the Tezpur District Cricket Association and report complian ce. A copy of the order passed by the Hon’ble Minister on 10-1-2006 reads as fol lows :- No.MSW.REV.27/2004/279 Dtd 10/01/2006 SECRETARY, & & I have visited the site and I am satisfied that the land mentioned in th e petition be allotted to Tezpur District Cricket Association affiliated to ACA. Deputy Commissioner, Sonitpur be informed to hand over the land measuring 9 Big has 4 Kathas 12 Lechas of Dag No.387 of Part IV Tezpur Town to Tezpur District C ricket Association and report compliance. Send a copy of this order to Secretary , Tezpur District Cricket Association. Sd/- Minister, Revenue 10. It is important to note that the order of the Hon’ble Minister i s as vague as can be, inasmuch as it does not mention the period for which posse ssion of the land in question is to be handed over to the Tezpur District Cricke t Association (surely, it cannot be a perpetual handing over) nor does it mentio n the terms and conditions for the allotment nor does it give any indication of the licence fee or lease money that the Tezpur District Cricket Association was required to pay for use and occupation of the land in question. 11. Be that as it may, by a letter dated 23-2-2006 the Deputy Secret ary in the Revenue (Settlement) Department of the Govt. of Assam wrote to the De puty Commissioner, Sonitpur, Tezpur to examine the matter and submit a formal pr oposal with required documents after observing all formalities for Government c onsideration . In other words, as far as the Deputy Secretary to the Govt. of As sam, Revenue (Settlement) Department is concerned, the matter was still under th e consideration of the Government despite the order of the Hon’ble Minister and it appears that this was (quite rightly) because of the extremely vague and arbi trary order passed by the Hon’ble Minister on 10-1-2006. 12. It seems that pursuant to the aforesaid letter dated 23-2-2006, the Circle Officer in the Tezpur Revenue Circle carried out a survey and submitt ed a report on 3-3-2006. This report, as well as a subsequent No Objection given by the Tezpur District Sports Association, apparently an allottee of a neighbou ring plot of land, was then considered by the Deputy Commissioner, Sonitpur who passed an order on 7-3-2007. This order is of some significance and it reads as follows :- GOVT OF ASSAM OFFICE OF THE DEPUTY OMMISSIONER, SONITPUR:: ASSAM (REVENUE BRANCH) ORDER No.SRS.15/2001/part-1/319 Dated : 7-3-2007 Seen the report submitted by the Circle Officer, Tezpur Revenue Circle v ide letter No.TRC-20/Part/95-05/311 dated 3-3-2006. Also seen the No Objection d ated 5-1-2007, submitted by Rupkamal Kakaty, General Secretary, Tezpur District Sports Association. It has been reported by the Circle Officer that land measuring 9B 4K 2L covered by dag No.387 of Mahabhairab - Mouza in Tezpur town 4th part in the name of Polofield has been used as a play ground. If the said lands are allotted to Tezpur District Cricket Association, the Tezpur District Sports Association shal l have no objections as is evident from the No Objection Certificate dated 5-1-2 007, issued by Sri Rup Kamal Kakaty, General Secretary of Tezpur District Sports Association. As such lands measuring 9B 4K 2L covered by Dag No.387 situated in Tezpu r town 4th part reserved in the name of ’Polofield’ shall be reserved as a play ground instead of allotment in the name of Tezpur District Cricket Association s hall be used as a play ground as per directions of the Deputy Commissioner. The Circle Officer, Tezpur Revenue Circle shall correct the revenue reco rds accordingly and report compliance. Sd/- Add. Deputy Commissioner, Sonitpur, Dated : 7-3-2007 (Emphasis supplied) 13. The order dated 7-3-2007 clearly mentions that the land in quest ion, i.e. 9 Bigha 4 Katha 2 Lechas shall be reserved as a play ground instead of being allotted in the name of the Tezpur District Cricket Association and that the land in question will be used as a play ground as per the directions of the Deputy Commissioner. These directions of the Deputy Commissioner have not been c learly mentioned but it appears to us that the reference is to the directions of the Deputy Commissioner given on 15-10-1982 when the application of the Darrang Cricket Association was dealt with. 14. Following up on the order passed by the Addl. Deputy Commissione r on 7-3-2007 the revenue records were corrected to read that the land in questi on be reserved as a play ground in the name of Tezpur District Cricket Associat ion . This is really the bone of contention, in as much as the Tezpur District C ricket Association treats this as an allotment of the land in its favour. 15. According to the petitioner, based on the corrections in the rev enue records the Tezpur District Cricket Association made an application to the Tezpur Development Authority for grant of permission to construct on the land in question. The construction was in the nature of a ground plus 2 storied buildin g with 5 ft high boundary wall. In its application, the Tezpur District Cricket Association stated that the land in question is in its name. According to the pe titioner, the Tezpur Development Authority erroneously and illegally granted per mission on 18-1-2010 to the Tezpur District Cricket Association to make the cons truction. Grievances of the petitioner and case of the parties: 16. The grievance of the petitioner is that as a result of the const ruction sought to be made by the Tezpur District Cricket Association, the bounda ry wall would block the entry of the neighbouring residents and others to the la nd in question for their activities which they had been carrying out over a long period of time, such as morning walks by senior citizens, school games, play gr ound for children etc. The other grievance of the petitioner is that the land in question cannot be treated as the private land of the Tezpur District Cricket A ssociation. The petitioner made several representations in this regard both to t he Government authorities and to the Tezpur District Cricket Association for exe rcising restraint from using the land in question as private land to the exclusi on of the residents of Polofield, Tezpur and others in the neighbouring locality . 17. These representations by the petitioner did not yield any result and consequently a petition was filed in public interest for a declaration that the orders dated 15-10-1982 and 7-3-2007, mentioned above, are subsisting and f inal and that the land in question should remain as a play ground open to all. I t was also prayed that the mutation in the revenue records that the land in ques tion has been reserved in the name of the Tezpur District Cricket Association as a play ground is illegal and without any authority of law. 18. The Addl. Deputy Commissioner, Sonitpur, Tezpur has filed an aff idavit on behalf of the Deputy Commissioner in which he has drawn attention to a report dated 20-8-2010 pursuant to an order passed by this Court on 6-8-2010 in this writ petition. The report reads as follows :- (i) The Tezpur District Cricket Association is an Association affiliated to the Assam Cricket Association with Registration No.RS/SPR/242/B/36 of 2003-04 wi th S.E. Alam as President and Dr. Anil Borah as Honorary Secretary. (ii) As per the order of the Deputy Commissioner, Sonitpur, Vide No.SRS.15/20 01/Pt-I/319 dated 07-03-2007 an area of land measuring 9B-4K-2L covered by Dag N o.387 of Tezpur Town 4th Part under Mahabhairab Mouza of Tezpur Revenue Circle h as been kept reserved as a play ground in the name of Tezpur District Cricket As sociation. (iii) The Tezpur District Cricket Association had already constructed a Turf W icket in the year 2007-08 at a cost of Rs.70,000/- (Rupees Seventy thousand) onl y over t he plot of land kept reserved as mentioned above. Out of which an amoun t of Rs.60,000/- (Rupees Sixty thousand) only was provided by Assam Cricket Asso ciation and another Rs.10,000/- (Rupees Ten thousand) only was arranged by the T ezpur District Cricket Association. (iv) Tezpur Development Authority has accorded permission for construction of R.C.C. Pavilion (G+2) covering an area 109.78 Sq. meter, 1st floor area 109.78 Sq, mtr and 2nd floor area 109.78 Sq. mtr along with pucca boundary wall with fe ncing for length 461.50 Mtr and height 5 feet vide No.TDA/BP/Ward No-14/1639/10 dated 18-01-2010. An amount of Rs.6.00 Lacs (Rupees Six Lac) only was sanctioned to Tezpur District Cricket Association, Tezpur under District Development Plan Scheme 2008-09 by the Tezpur Zilla Parishad for development of Tezpur District C ricket Association playground vide No.SZP.65/Pt-11/2008-09 dated 07-01-2010. Acc ordingly the Tezpur Town & Country Planning Department has been constructing the ground floor of R.C.C. Pavilion of Tezpur District Cricket Association and it i s on the verge of completion. Now, approximately 90% construction works of groun d floor of R.C.C. Pavilion has been completed. (v) The Construction of Pucca boundary wall with fencing was also the part of the permission accorded by the Tezpur Development Authority. During enquiry, it has been found that Tezpur District Cricket Association has started the const ruction of Pucca boundary wall in East-West corner of the land in the month of M ay 2010, but few local people stopped the said construction. (vi) During verification the following institutions are also found over the p lot of land measuring 9B-4K-2L which was reserved for the Tezpur District Cricke t Association as play ground. i) Bhaben Dawka Memorial Cricket Coaching Centre, Tezpur (established in 1985) - area covered by 15 L. ii) Tezpur Rupjyoti Sangha (established in 1977) - area covered by 3 L. iii) Polo field Namghar, (established in 1978)- area covered by 1K-5L iv) Anganbadi Kendra No14 - area covered by 5L 19. In his affidavit, the Addl. Deputy Commissioner does not deny th e existence of the order dated 15-10-1982 passed by the earlier Deputy Commissio ner with regard to the ban on permanent structures on the land in question. Howe ver, he goes on to state that there are many houses around the field and as the field would house a stadium and various sports activities shall be taking place and as such unless the field is protected by a wall, there may be accidents. Fu rther, rickshaw pullers, hand carts, etc. cross the field unabated. Washermen us e the field for spreading their clothes for drying etc. Thus, the boundary wall had become a necessity. 20. The Tezpur District Cricket Association has also filed its count er affidavit and broadly it has mentioned the facts that we have adverted to abo ve. With regard to the order passed by the Deputy Commissioner on 15-10-1982, it is stated by the Tezpur District Cricket Association that to the best of its kn owledge there are no official records or any entry in the record of rights layin g down any condition for use of the land in question by the Darrang Cricket Asso ciation or that the Darrang Cricket Association was ever given any allotment of the land in question. The Tezpur District Cricket Association has also mentioned that the land is allotted to it by the Hon’ble Revenue Minister and that the or der dated 7-3-2007 passed by the Addl. Deputy Commissioner requires allotment of the land in question to the Tezpur District Cricket Association. It is stated b y the Tezpur District Cricket Association that pursuant to permission granted to it by the Tezpur Development Authority, it has begun construction of a pavilion and that 92% of the construction has been completed. Insofar as prohibiting the entry of all and sundry into the play ground is concerned, it is submitted that its main concern is protection of the turf wicket on which cricket is played. T he Tezpur District Cricket Association had meetings with representatives of the petitioner association and it assured them that the boundary wall would be only 1 ‰ feet brick plinth from the ground and above 4 feet chain link fencing would be constructed and that sufficient number of gates on four sides of the field wo uld also be provided. The Tezpur District Cricket Association also gave assuranc es to the local inhabitants of the area that they would be allowed to use the fi eld for walking, jogging purposes etc. and the field could also be used for cult ural functions but with a mutual understanding so as to ensure that no damage or destruction is caused to the turf wicket. According to the Tezpur District Cric ket Association the petitioner and its representatives unfortunately did not acc ept these assurances even though the Tezpur District Cricket Association was pre pared to give them in writing. 21. The Tezpur Development Authority has also filed a counter affida vit in which it is stated that as per the Jamabandi issued by the Circle Officer , Tezpur, along with the plans and drawings submitted by the Tezpur District Cri cket Association, it was found that the Uniform Zoning Regulations were being ad hered to as also the provisions of the Assam Town and Country Planning Act, 1959 . It is stated that it is in these circumstances that permission for constructio n was granted to the Tezpur District Cricket Association on 18-1-2010. 22. The petitioner has filed an affidavit in rejoinder where it has denied the claims of the Tezpur District Cricket Association and has prayed that the writ petition be allowed. 23. We have heard learned counsel for the parties at length and have gone through the paper book with them. Discussion and reasons: 24. First of all, insofar as the application for allotment made by t he Tezpur District Cricket Association is concerned, it is not at all clear why it was made to the Hon’ble Revenue Minister of the Govt. of Assam and not to the district authorities in Tezpur who were really concerned with the land in quest ion. It is equally very odd that the Hon’ble Minister should at all have enterta ined that application. Moreover, it is quite a surprise that the Hon’ble Ministe r took so much interest in the affairs of the Tezpur District Cricket Associatio n as to visit the site and to pass an order in less than two weeks, that is, on 10-1-2006 directing the allotment of the land in question in favour of the Tezpu r District Cricket Association. 25. What is most surprising is that the Hon’ble Minister passed a bl anket order in favour of the Tezpur District Cricket Association without any for mality having been completed by any of the authorities either in the district or even by the Tezpur District Cricket Association inasmuch as nobody was asked if there was any objection to the allotment in favour of the Tezpur District Crick et Association; nor were any terms and conditions laid down for the allotment; n or was any licence fee or lease money proposed by the Hon’ble Minister; nor was any period fixed for the allotment, virtually making it an allotment in perpetui ty. The order passed by the Hon’ble Minister on 10-1-2006 amounts to gifting awa y the land in question to the Tezpur District Cricket Association which is clear ly impermissible since the land did not belong to the Hon’ble Minister in his pe rsonal capacity. We are, therefore, of the clear view that the allotment order p assed by the Hon’ble Minister on 10-1-2006 is nothing but a piece of waste paper that cannot be seriously taken note of in the absence of any formalities having been carried out for the allotment of the land in question. 26. Secondly, the order dated 7-3-2007 passed by the Addl. Deputy Co mmissioner has conveniently been misread by the Tezpur District Cricket Associat ion and the revenue authorities. It is quite clear, and there is no categorical denial of this, that the Darrang Cricket Association sought allotment of the lan d in question way back in 1982. Even though the records may perhaps not be avail able, but since there is no specific denial in this regard by the Deputy Commiss ioner of Tezpur, it does seem clear to us that the Darrang Cricket Association w as allowed to use the land in question as a play ground, subject to the conditio n that no permanent structure would be constructed thereon and the trees planted by the Forest Department would not be damaged. This situation appears to have c ontinued until the Tezpur District Cricket Association came on the scene with it s application made to the Hon’ble Revenue Minister on 28-12-2005. 27. Fortunately the Deputy Secretary in the Revenue (Settlement) Dep artment of the Govt. of Assam decided (and quite rightly) that necessary formali ties must be observed and it is only thereafter that a final decision could be t aken after the entire matter is considered by the Government. It is in keeping w ith the law that the Deputy Secretary in the Revenue (Settlement) Department wro te the letter dated 23-2-2006 to the Deputy Commissioner of Tezpur. 28. It appears that it is on the basis of this letter dated 23-2-200 6 that a report was called for by the Deputy Commissioner form the Circle Office r. On 3-3-2006 the Circle Officer submitted a report, after which objections wer e invited. The Tezpur District Sports Association, an allottee of the neighbouri ng land, submitted its No Objection on 5-1-2007. It is then that the Addl. Deput y Commissioner passed an order on 7-3-2007 that the land in question be reserved as a play ground but not allotted to the Tezpur District Cricket Association in terms of the earlier directions of the Deputy Commissioner given on 15-10-1982. It is quite clear to us that the order passed by the Addl. Deputy Commissioner on 7-3-2007 means that the land in question was to be reserved as a play ground; it was not to be allotted to the Tezpur District Cricket Association; and the t erms and conditions earlier laid down on 15-10-1982 were to be adhered to, inclu ding the condition that no permanent structures like houses etc. or any other fo rm of construction thereon would be undertaken nor the saplings planted earlier by the Forest Department be subjected to any damage. 29. In conformity with the clear order passed by the Addl. Deputy Co mmissioner on 7-3-2007, the revenue records were corrected to show that the land in question is reserved as a play ground in the name of the Tezpur District Cri cket Association. We find no inconsistency between the order passed by the Addl. Deputy Commissioner on 7-3-2007 and the revenue records. If they are read harm oniously, it is clear in that no allotment was made in favour of the Tezpur Dist rict Cricket Association - it was only entitled to use the land as a play ground . Indeed, there could not be any allotment in favour of the Tezpur District Cric ket Association in the absence of any laid down terms and conditions.