Mozakkir Hussain v. The State of Assam and 5 Ors

ORDER Date : 26.04.2024

Heard Mrs. N. Saikia, learned counsel for the petitioner, Mr. S. Dutta, learned standing counsel for the Revenue Department appearing for respondent no.1 and Mr. S. Baruah, learned Govt. Advocate appearing for respondent nos.2 to 5.

¶2The case projected by the petitioner is that he is having a plot of land measuring about 3 katha in dag no.133 patta no.1395 at village-Niranchuba, Mouza-Rainakuchi under Patharighat Revenue Circle. The said land is inherited from his deceased father. It is projected that the respondent no.6 availed PMGAY benefit and has forcibly and illegally started construction of his house on the plot of the land falling in the petitioner. The petitioner approached the Circle Page No.# 3/4 Officer of Patharighat Revenue Circle for stopping the construction and to take action against the respondent no.6. The Sipajhar Police Station was also informed to stop construction. Although, the Circle Officer directed the BDO, Sipajhar Block by letter dated 25.07.2022 to stop construction, but the competent authorities released the 2nd and 3rd installments of the PMGAY fund to the respondent no.6. Accordingly, it is submitted that not only the construction of the respondent no.6 is going on in full swing, but in the process, the petitioner is deprived of possession of his land.

¶3Accordingly, by filling this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction upon the respondent authorities to demarcate the land and to restore possession of the land to the petitioner as per the entries made in the land revenue records.

¶4The learned counsel for the petitioner has submitted that the petitioner belongs to an economically weaker section of the society and would be unable to engage counsel, if he is relegated to avail alternative remedy.

¶5From the documents appended to this writ petition, it appears from the letter dated 30.08.2023 from the Circle Officer, Patharighat Revenue Circle wherein it is mentioned that the ejmali (joint) patta land and the land revenue records contain mutation in the name of the father of the respondent no.6 namely, Khairulla Sheikh as well as in the name of the father of the petitioner namely, Late Mafizuddin Ahmed, and that the respondent no.6 has carried out construction having possession over the land. Therefore, it is evident that disputed questions of fact relating to the possession would arise in this writ petition, if this writ petition is entertained. Page No.# 4/4

¶6Moreover, the issues relating to mutation, partition etc. will also arise which will require some amount of adjudication.

¶7In such matters, the Civil Court or the Revenue Court is the appropriate authority to adjudicate such dispute, and as a rule of prudence, the High Court in exercise of power under Article 226 of the Constitution of India would not enter into or adjudicate disputed questions of fact.

¶8Accordingly, the Court is inclined to relegate the petitioner to approach the jurisdictional Civil Court and/or the Revenue Court and/or apply for demarcation of land in accordance with the provisions contains in the Assam Land and Revenue Regulation, 1886.

¶9As the learned counsel for the petitioner has submitted that the petitioner comes from economically weaker section of the society, the petitioner may be well advised to apply for legal aid from the District Legal Service Authority, if so advised, and if the petitioner is found entitled to free legal aid, definitely such aid would be provided to him.

¶10With the aforesaid observation, this writ petition stands closed.

JUDGE

Comparing Assistant

PageoNo.#o1/4 GAHC010076492024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2183/2024o MOZAKKIRoHUSSAINo S/O-oLAT.oMAFIZUDDINoAHMED,o R/O-oVILL.oNIRANCHUBA,o P.O.-oPATHARIGHAT,o P.S.-oSIPAJHAR,o DIST.-oDARRANG,oASSAM. VERSUSo THEoSTATEoOFoASSAMoANDo5oORS.o REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,o REVENUEoDEPARTMENT,oDISPUR,oGUWAHATI-6. 2:THEoDEPUTYoCOMMISSIONER oDARRANG oP.O.oANDoP.S.-oMANGALDAI o DISTRICT-oDARRANG. 3:THEoCIRCLEoOFFICER oPATHARIGHAToREVENUEoCIRCLE oPATHORIGHAT oDISTRICT-oDARRANG. 4:THEoBLOCKoDEVELOPMENToOFFICER oSIPAJHARoDEVELOPMENToBLOCK oSIPAJHAR oDISTRICT-oDARRANG. 5:THEoOFFICERoINoCHARGE oSIPAJHARoPOLICEoSTATION Page No.# 2/4 DISTRICT- DARRANG ASSAM. 6:MOZAMBIQUE HAQUE S/O- LATE KHAIRULLA SHEIKH R/O- VILL.- NIRANCHUBA P.O.- PATHORIGHAT P.S.- SIPAJHAR DIST.- DARRANG ASSAM Advocate for the Petitioner : MS N SAIKIA Advocate for the Respondent : SC, REVENUE BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA