Mostab Ali Sheikh @ Mostab Ali @ Mostam Ali and Anr v. The State of Assam and 8 Ors

ORDER Date : 23-01-2023 Heard Mr. M. Hussain, learned counsel for the petitioners; Mr. A. Bhattacharjee, learned Standing Counsel, Revenue Department for the respondent no. 1; Mr. N.K Dev Nath, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 2 & 3; and Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam for the respondent nos. 4, 5 & 6.

¶2The case of the petitioners, as projected in the instant writ petition and the representation stated to have been submitted before the respondent no. 4 on 11.08.2022, is that they purchased a plot of land measuring 4 Bighas 4 Kathas and 14 Lessas [4B-4K-14L], covering by Dag nos. 195[old]/442, 448 & 450[New], Khatian no. 118[old] and Periodic Khiraj Patta no. 206, located at Village–Gutipara Part–I, Revenue Circle–Bilasipara, District–Dhubri, Assam ['the subject-plot', for short] from one Md. Haran Ali Munshi by way of a registered Sale Deed no. 330/1999 dated 28.11.1999. Thereafter, the petitioners name stood mutated in the land records in respect of the subject-plot on the basis of the said registered Sale Deed. On 13.06.2012, the respondent no. 6 issued a joint Myadi Khiraj Patta in respect of the subject-plot with other persons comprising total land measuring 18 Bighas 3 Kathas 12 Lessas [18B-3K-12L] including the subject-plot. The petitioners have canvassed that they are in peaceful possession of the subject-plot till date. The petitioners placing a document issued under the seal and signature of the respondent no. 6, have mentioned that there is some Khas land in the Northern side of the subject-plot. The petitioners have allayed an apprehension that the authorities in Kajaikata Gaon Panchayat under Nayeralga Anchalik Panchayat and Dhubri Zilla Parishad is contemplating to construct a fishery in the Khas land under the MGNREGA Scheme/Amrit Sarovar Scheme.

¶3Mr. Hussain, learned counsel for the petitioners has submitted that the Fishery is likely to be in a plot of land covered by Dag no. 451 in Revenue Village–Gutipara Part–I under Page No. 4/7 Bilasipara Revenue Circle, which is a Government Khas land. It is submitted by him that the respondent authorities are undertaking some exercise to handover the possession of the said Khas land to Kajaikata Gaon Panchayat for construction of the fishery without making partition and demarcation of the subject-plot with the said Government Khas land. The petitioners have submitted that without the disposal of the representation submitted by them on 11.08.2022 highlighting such grievance, if such exercise in respect of the fishery is undertaken, there is a possibility that a part of the subject-plot might get included in the plot of land to be earmarked for the fishery. Apart from the apprehension so allayed, there is however, no other supporting materials to buttress the said submission of the learned counsel for the petitioners.

¶4The Assam Right to Public Services Act, 2012 ['the Act', for short] has been enacted by the Assam Legislative Assembly in order to provide for delivery of notified public services to the people of the State of Assam within the stipulated time limit and for matters connected therewith and incidental thereto. The Act received the assent of the Governor of Assam on

27.04.2012 and was notified by a notification dated 02.05.2012. The Act has been published in the Assam Gazette in its issue dated 02.05.2012. As per Section 2[h], "Right to Public Service" means right to obtain the notified service under this Act from time to time within the stipulated time limit as described under Section 5 and as per Section 2[i], "notified service" means any service notified by the State Government under Section 4. Section 5 of the Act has laid down that every eligible person shall have the right to obtain the services in accordance with the Act within the time bound period as notified under Section 4. It is the responsibility of Government Servant to deliver services, under Section 6 of the Act, within the stipulated period. The stipulated time limit, as per Section 7[1], starts from the date when the application for obtaining a required notified service is submitted to the Designated Public Servant or to a person subordinate to him authorized to receive the application. Such application shall be duly acknowledged. As per Section 7[2], the Designated Public Servant on receipt of an application under sub-section [1] shall, within the stipulated time limit, provide the notified service or reject the application and in case of rejection of application, he shall record the reasons in writing and communicate to the person making the application,- [i] the reasons for such rejection; [ii] the period within which an appeal against such rejection may Page No. 5/7 be preferred; and [iii] the particulars of the Appellate Authority. Section 8 of the Act has provided for an appeal before the Appellate Authority and also for a review before the Reviewing Authority.

¶5By an Office Memorandum bearing no. RRG.18/2017/Pt/163 dated 21.12.2020 of the Government of Assam in the Revenue and Disaster Management [Reforms] Department, demarcation has been declared to be a notified service under Section 4 of the Act. For ready reference, the contents of the Office Memorandum dated 21.12.2020 are extracted hereinbelow in its entirety :-

" GOVERNMENT OF ASSAM REVENUE & DISASTER MANAGEMENT (REFORMS) DEPARTMENT ASSAM SECRETARIAT [CIVIL] : DISPUR GUWAHATI-6

No.RRG.18/2017/Pt/163 Dated Dispur the 21st December, 2020.

Office Memorandum Subject: Declaration of services under Revenue & D.M. Department as per provision of the Section 4 of the Assam Right to Public Service Act, 2012. With a view to provide the delivery of Public Service to the eligible citizens within stipulated time limit the following service of the Revenue & D.M. Department has been identified as Notified service under Section 4 of the Assam Right to Public Services Act, 2012.

Service Name: Demarcation Certificate (where there is no dispute on title) An important service which is provided by the Revenue & Disaster Management Department is the issue of Demarcation Certificate. This certificate is required to establish the real extent/interest of the land and to establish actual boundary of a particular Dag as per cadastral map of the revenue village/town. This service can be obtained in the Offices of the Circle Officers. Page No. 6/7

Eligibility Criteria: Any citizen of Assam who is recorded Pattadar of the scheduled land can avail this service.

Procedural Steps for Issuance of Demarcation Certificate: The applicant has to apply in Standard Application format before Circle Officer of the concerned Circle and Circle Officer will endorse the same to the concerned Dealing Assistant/Copyist. The Dealing Assistant/Copyist after verifying the application, forwards to the concerned Lot Mandal for field verification. Lot Mandal submits the field verification report to Supervisor Kanungo for verification and Supervisor Kanungo after verifying the report forwards to the Circle Officer. Circle Officer, based on the report submitted by Lot Mandal and Supervisor Kanungo approves/rejects the demarcation application. Once demarcation is allowed by the Circle Officer, the Dealing Assistant prepares a notice regarding the demarcation of the proposed land and it is served to all the co-pattadars of the concerned Dag and pattadars of the adjacent Dags and sends it to Circle Officer for signing. The LM then visits the S/L on the fixed date and demarcate the concerned Dag in presence of all the stakeholders.

Documents to be annexed along with the Application:

¶1Applicant must submit duly signed Application form mentioning details if the scheduled dag.

¶2Up to date land revenue receipt.

User Charges: Rs.30/- Citizen Charter: Annexure-1 Time-line: 30 [thirty] working Days.

Sd/-[Avinash Joshi, IAS] Principal Secretary to the Govt. of Assam Revenue & D.M. Department."

Page No. 7/7

¶6It is settled that if there is an alternative, efficacious and adequate remedy, then the petitioners should avail that remedy instead of approaching this Court under Article 226 of the Constitution of India. If it is a case of simple demarcation, as it has been projected by the petitioners, the petitioners should avail the remedy by applying for the notified public service [demarcation] under the Act first by approaching jurisdictional Designated Public Servant by submitting the prescribed standard application form and by depositing of the requisite user charges. On receipt of such application, the jurisdictional Designated Public Servant shall acknowledge the same and shall proceed to dispose of the said application as per the procedure laid down in the Act and the Office Memorandum dated 21.12.2020 [supra] within the stipulated time period prescribed for the said notified public service [demarcation]. It is accordingly observed.

¶7The authorities while undertaking the process for partition and demarcation of the subject-plot as well as in undertaking the process to demarcate the contemplated fishery, if any, in the Government Khas land, situated in the Northern side of the subject-plot shall ensure that the partition and demarcation of the subject-plot is completed either prior to handing over of possession the Government Khas land to Kajaikata Gaon Panchayat for the purpose of fishery or simultaneously.

¶8With the observations made and directions given above, the writ petition is disposed of.

JUDGE Comparing Assistant

PageoNo.o1/7 GAHC010191712022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6158/2022o MOSTABoALIoSHEIKHo@oMOSTABoALIo@oMOSTAMoALIoANDoANRo S/O.oLT.oRUSTOMoALI, 2:oMALEKoAKHATUNo@oMATEKAoKHATUN oW/O.oLT.oHASHEMoALIo@oHASEMoALI oBOTHoAREoVILL.oGUTIPARAoPART-III oP.O.oGUTIPARA oP.S.oBILASIPARA oDIST.oDHUBRI oASSAM oPIN-783349o VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM,oLANDoANDo REVENUEoDEPTT.,oDISPUR,oGUWAHATI-06. 2:THEoPRINCIPALoSECRETARY oTOoTHEoGOVT.oOFoASSAM oPANCHAYAToANDoRURALoDEVELOPMENToDEPTT. oASSAM oDISPUR oGUWAHATI-06. 3:THEoCOMMISSIONER oPANCHAYAToANDoRURALoDEVELOPMENT oASSAM oJURIPAR oGUWAHATI-37. 4:THEoDEPUTYoCOMMISSIONER oDHUBRI oASSAM Page No. 2/7 P.O. AND P.S. AND DIST. DHUBRI ASSAM PIN-783301. 5:THE SETTLEMENT OFFICER DHUBRI AND KOKRAJHAR DISTRICTS P.O. AND P.S. AND DIST. DHUBRI ASSAM PIN-783301. 6:THE CIRCLE OFFICER CUM THE ASST. SETTLEMENT OFFICER BILASIPARA REVENUE CIRCLE BILASIPARA P.O. AND P.S. BILASIPARA DIST. DHUBRI ASSAM PIN-783348. 7:THE CHIEF EXECUTIVE OFFICER CUM PROJECT DIRECTOR DRDA DHUBRI ASSAM P.O. AND P.S. AND DIST. DHUBRI ASSAM PIN-783301. 8:THE BLOCK DEVELOPMENT OFFICER NAYERALGA DEVELOPMENT BLOCK BILASIPARA P.O. AND P.S. BILASIPARA DIST. DHUBRI ASSAM PIN-783348. 9:THE KAJAIKATA GAON PANCHAYAT REP. BY ITS SECRETARY P.O. KAJAIKATA P.S. BILASIPARA DIST. DHUBRI ASSAM PIN-783348 Advocate for the Petitioner : MR. M HUSSAIN Advocate for the Respondent : GA, ASSAM Page No. 3/7 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY