Building Partly On Govt Land: Gauhati High Court Says Extent Of Demolition & Compensation Must Be Decided By Civil Court
The Gauhati High Court has held that the question of whether a building was damaged during an eviction drive, the extent of such demolition and the compensation payable for the loss cannot be determined in writ proceedings and must be adjudicated by a competent civil court on the basis of evidence.
Justice Devashis Baruah made the observation while dealing with a writ petition seeking compensation from government authorities for alleged damage to the petitioner's property during an eviction drive.
Justice Devashis Baruah observed, “...this Court that this is not a case which would come within the ambit of a constitutional tort. Apart from that, any other loss or damages caused on account of demolition of the Petitioners' building is a question of assessment which can only be done before a Court wherein evidence can be led.”
Petitioner claimed that he was the absolute owner of 2 Kathas 7 Lechas (0.155 acre) of land and had constructed a two-storeyed RCC building over it. His case was that in February, 2017, officials of the Municipal Board, Lanka Revenue Circle and Lanka Police Station, along with other officials and armed police, arrived at the site and demolished a portion of the building.
The respondent authorities, however, stated that the petitioner's ownership was limited to 2 Kathas 2 Lechas (0.139 acres) and that a portion of the building stood over a Government Dag (government-owned plot/parcel of land), which was Government reserve land reserved as “Gobat”.
They further stated that eviction proceedings had been initiated and that no portion of the petitioner's building standing on his own land had been demolished. The Court noted that although the affidavits-in-opposition were filed in 2017 and a final opportunity was granted, no affidavit-in-reply was filed by the petitioner or the substituted petitioners.
The High Court considered whether the action of the respondent authorities constituted a constitutional tort for awarding compensation to the petitioners. It noted that the petitioner's claim regarding the extent of his land had been denied and that it had been categorically stated that his building was encroaching upon Government Dag, an aspect which had not been denied.
“Under such circumstances, if any portion of the Petitioner's building was standing upon a Government land bearing Dag No.1038 and the said aspect having not been denied, this Court cannot hold that the Respondent Authorities have violated the Petitioner's constitutional rights and thereby to impose compensation against the Respondents on the commission of constitutional tort.”
The Court further took note that the original petitioner had sought compensation on commission of constitutional tort upon his life and property. It held that the right to seek such compensation was personal to the original petitioner and did not survive his death.
“The right to seek such compensation is personal to the original Petitioner. Though, the original Petitioner was substituted upon his death by the present Petitioners, the loss sustained by the original Petitioner do not survive upon the death of the original Petitioner or in other words, the right to sue does not survive.”
The Court also observed that whether any damage was caused to the petitioner's building, to what extent and how much were questions of fact which could only be decided by a competent court of civil jurisdiction. It therefore concluded that the case did not fall within the ambit of a constitutional tort.
Accordingly, the Court opined, “no case of constitutional tort is made out in the facts and circumstances of the present case. Accordingly, the question of directing the Respondent Authorities to make payment of compensation to the Petitioners does not arise.”
The writ petition was dismissed.
The Court, however, clarified that the dismissal would not preclude the petitioners from approaching the competent civil court for claiming compensation for the loss suffered on account of demolition of so much of the building as stood within their land.
It further directed that, if such a suit was filed, the period from February, 2017 till the date of the judgment would be excluded while computing limitation.
Case No.: WP(C) No. 1192/2017
Case Title: On the Death of Indrasan Prasad Choudhury, His Legal Heirs Represented by Kalawati Devi & Ors. v. State of Assam & Ors.
LL Citation: 2026 LiveLaw (Gau) 148