Bajrang Agarwala @ Hanuman v. The State of Assam and 5 Ors

ORDER Date : 06-11-2023 Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner; Ms. N. Bordoloi, learned Standing Counsel, Revenue & Disaster Management Department for the respondent no. 1; Mr. R.K. Mushahary, learned Standing Counsel, BTC for the respondent nos. 2 & 5; and Ms. S. Sarma, learned Junior Government Advocate, Assam for the respondent nos. 3 & 4.

¶2In view of submission made by Mr. Borbhuiya, learned counsel for the petitioner, the writ petition is taken up for disposal at the motion stage itself as there appears no necessity to issue notice to the respondent no. 6.

¶3It is the case of the petitioner that by a sale deed being Registered Sale Deed no. 390 dated 28.01.1972, the petitioner purchased a plot of land, measuring 10 lessas, at Village – Pub Kutaghat Dihi-Fakiragram, Pochagarh under Dotma Revenue Circle, Kokrajhar ['the subject-plot', for short] from its erstwhile owners. The petitioner has asserted that since the date of purchase, he has been enjoying the possession of the subject-plot peacefully. The petitioner has also referred to certain proceedings drawn up under Section 107, Code of Criminal Procedure between him and certain other persons including the respondent no. 6. Page No. 3/6

¶4Mr. Borbhuiya, learned counsel for the petitioner has submitted that as proper demarcation of the subject-plot has not been carried out by the respondent authorities despite request from the end of the petitioner, the petitioner wants to submit application for demarcation afresh seeking demarcation of the boundaries of the subject-plot and thereafter, to apply for mutation.

¶5The learned counsel for the respondents have, in unison, submitted that 'demarcation' is notified service under the Assam Right to Public Services Act, 2012.

¶6The 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 liability 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 be preferred; and [iii] the particulars of the Appellate Authority. Section 8 of the Act has Page No. 4/6 provided for an appeal before the Appellate Authority and also for a review before the Reviewing Authority.

¶7By 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.

Eligibility Criteria: Page No. 5/6 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."

¶8It is settled that if there is an alternative, efficacious and adequate remedy, then a person 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 Page No. 6/6 petitioner, the petitioner 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 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 within the stipulated time period prescribed for the said notified public service [demarcation]. It is accordingly observed.

¶9In view of the availability of the alternative and efficacious statutory remedy, the writ petition is not entertained, reserving the liberty to the petitioner to avail statutory remedy under the Act, available to him under the law.

JUDGE Comparing Assistant

PageoNo.o1/6 GAHC010243922023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6346/2023o BAJRANGoAGARWALAo@oHANUMANo SONoOFoLATEoFULCHANDoAGARWALA,o RESIDENToOFoFAKIRAGRAM,oWARDoNO.o6,o P.O.-oFAKIRAGRAM,oDISTRICT-oKOKRAJHAR,o BTR,oASSAM. VERSUSo THEoSTATEoOFoASSAMoANDo5oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,o REVENUEo(SETTLEMENT)oDEPARTMENT,o DISPUR,oGUWAHATI-6. 2:THEoBODOLANDoTERRITORIALoCOUNCIL oREPRESENTEDoBYoTHEoPRINCIPALoSECRETARY oTERRITORIALoCOUNCILoSECRETARIAT oKOKRAJHAR oBTR oASSAM. 3:THEoDEPUTYoCOMMISSIONER oKOKRAJHAR oBTR oASSAM. 4:THEoSUPERINTENDENToOFoPOLICE oKOKRAJHAR oASSAM. 5:THEoCIRCLEoOFFICER oDOTMAoREVENUEoCIRCLE oDOTMA oKOKRAJHAR Page No. 2/6 ASSAM. 6:BISWA NATH SAH SON OF LATE GAKUL SAH RESIDENT OF FAKIRAGRAM WARD NO. 6 P.O.- FAKIRAGRAM DISTRICT- KOKRAJHAR BTR ASSAM PIN- 783345 Advocate for the Petitioner : MR. J I BORBHUIYA Advocate for the Respondent : SC, REVENUE BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY