Azhar Ali vs The State Of Assam And 4 Ors
2021 Latest Caselaw 238 Gua

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GAHC010061182020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/2029/2020

         AZHAR ALI
         S/O LT. ABDUL AWAL SHEIKH, R/O VILL. UZANBOZRA, P.O. HAZIRHAT,
         DIST. SOUTH SALMARA MANKACHAR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         REVENUE AND DISASTER MANAGEMENT DEPTT. DISPUR, GUWAHATI-6

         2:THE SECRETARY
         TO THE GOVT. OF ASSAM
          REVENUE (REGISTRATION) DEPTT. DISPUR
          GUWAHATI-6

         3:THE INSPECTOR GENERAL OF REGISTRATION
         ASSAM
          RUPNAGAR
          GUWAHATI-32

         4:THE DISTRICT REGISTRAR
          SOUTH SALMARA MANKAHCAR DISTRICT
          P.O. HATSINGIMARI
          P.S. SOUTH SALMARA
          DIST. SOUTH SALMARA MANKACHAR
         ASSAM
          PIN-783135

         5:ABUL KALAM
          S/O TUFAZ UDDIN SK
         VILL. KANAIMARA PART-II
          P.O. KANAIMARA
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               DIST. SOUTH SALMARA MANKACHAR
               ASSAM
               PIN-78313

Advocate for the Petitioner        : MS. M BARMAN

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

JUDGMENT & ORDER (CAV) Date of hearing : 21.01.2021.

Date of judgment : 27.01.2021

Heard Mr. U.K. Nair, learned senior counsel assisted by Mr. M. Islam, appearing for the petitioner. Also

heard Mr. J. Handique, learned counsel appearing for respondent Nos. 1, 2, 3 & 4 and Mr. R. Mazumdar, learned

counsel appearing for respondent No. 5.

2. The petitioner's case is that he has been given the licence to register Muslim Marriages and Divorces in

terms of Section 3 of the Assam Muslim Marriages and Divorces Registration Act, 1935, hereinafter as the "1935

Act", vide licence dated 02.07.1997 issued by the Government of Assam in the Revenue Department. The licence

dated 02.07.1997 states that the jurisdiction of the petitioner shall be within the jurisdiction of the entire South

Salmara Police Station, Dist. Dhubri.

Section 3 of the Assam Muslim Marriages and Divorces Registration Act, 1935 is produced hereinbelow:

"3. State Government may grant licences to register.- The State Government may grant a licence to any person, being a (Muslim), authorizing him to register (Muslim) marriages and divorces which have been effected within certain specified limits, on application being made for such registration; and may revoke or suspend such licence:

Provided that not more than two persons shall be licensed to exercise the said function within the same limits ; and provided further that, when two persons are so licensed to Act within the same limits, the one shall be a member of the Sunni, and the other of the Shia, sect."

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3. The petitioner is aggrieved by the notification dated 06.01.2020 issued by the Government of Assam in

the Revenue Department, by which the respondent No. 5 has been given the licence to register Muslim

Marriages and Divorces within the jurisdiction of the Hatsingimari, South Salmara Mankachar district. The case

of the petitioner is that only one Muslim marriage Registrar can be appointed within a given jurisdictional area

belonging to a particular Mohammedan Faith i.e. Shia sect or Sunni sect. There cannot be two Muslim marriage

Registrars of the same sect under one given jurisdictional area. However, the respondent No. 5 has been made

the Muslim Marriage Registrar in Hatsingimari, which is within the jurisdiction of the South Salmara Police

Station. As the respondent No. 5 (Sunni sect) has been given the licence to act as a Muslim Marriage Registrar

within the jurisdictional area given to the petitioner (Sunni sect), i.e. within the jurisdiction of the South Salmara

Police Station, the impugned notification dated 06.01.2020 should be set aside.

4. The petitioner's counsel submits that in pursuance to the licence dated 02.07.1997 given to the

petitioner, to act as a Registrar of Muslim Marriages and Divorces, within the jurisdiction of the South Salmara

Police Station, with headquarters at Hazirat , the petitioner has been working as such for the last 24 years.

However, in the year 2016, the petitioner's office at Hazirat was eroded by floods. The petitioner then made a

request to shift his office from Hazirat to Hatsingimari. The same was allowed by the State respondents vide

order dated 02.05.2019. Subsequently, an advertisement dated 27.06.2019 was issued by the respondents,

inviting applications for filing up a post of Muslim Marriage Registrar at Hatsingimari. Though the said

advertisement was assailed by the petitioner vide WP(C) No. 9125/2019, on the ground that under the statutory

provisions in force, 2(two) Muslim Marriage Registrars could not be appointed within the same jurisdictional

area, no stay was granted in WP(C) No. 9125/2019. Subsequently, the respondent No. 5 was appointed as

Muslim Marriage Registrar within the jurisdiction of the Hatsingimari area, South Salmara Mankachar district vide

notification dated 06.01.2020.

5. The petitioner's counsel submits that at the time the petitioner was given the licence to act as a Muslim

Marriage Registrar within the jurisdiction of the entire South Salmara Police Station, Dhubri district in 1997,

South Salmara Sub-Division, which was under the Dhubri district had two Police Stations, i.e. Mankachar Police

Station and South Salmara Police Station.

6. The learned counsel for the petitioner submits that under South Salmara Police station, there were Page No.# 4/8

4(four) Police Out-posts, i.e. Sukchar, Fakirganj, Jarua-Bandihana and Kharuabanda.

Sukchar and Fakirganj Police Out-posts were subsequently upgraded to full fledged Police Stations in the

year 2009 and Jarua-Bandihana Police Out-post was attached to Fakirganj Police Station. However, Kharuabanda

Police Out-post, which covered the entire Hatsingimari area remained within the jurisdiction of the South

Salmara Police Station.

7. The petitioner's counsel submits that the earlier office of the Muslim Marriage Registrar, which was in

Hazirat and which had been eroded due to floods, now falls within the jurisdiction of the Sukchar Police Station.

8. The petitioner's counsel submits that Dhubri district was also bifurcated into two districts i.e. Dhubri

district and South Salmara Mankachar district in the year 2016. He submits that Hatsingimari, which is the

headquarter of the South Salmara Mankachar district, is still within the jurisdiction of the Kharuabanda Police

Out-post, which in turn is within the jurisdiction of the South Salmara Police Station.

9. The petitioner's counsel submits that until and unless the petitioner's licence dated 02.07.1997 is

cancelled or modified, the respondents could not have granted a licence to the respondent No. 5, to act as

Registrar of Muslim Marriages and Divorces in the Hatsingimari area, as it overlapped the jurisdictional area of

the petitioner's licence.

10. Mr. J. Handique, the learned counsel appearing for the Revenue Department, on the other submits that

prior to the appointment of the respondent No. 5 as Muslim Marriage Registrar for the Hatsingimari area,

communication was given to the petitioner informing him that he could not act as a Muslim Marriage Registrar in

the Hatsingimari area. Mr. J. Handique, the learned counsel also submits that the appointment of the petitioner

and the respondent No. 5 are over two different jurisdictional areas.

11. Mr. R. Mazumdar, learned counsel appearing for the respondent No. 5 submits that in terms of Rule 5 of

the Assam Muslim Marriages and Divorces Registration Rules, 1935, hereinafter referred to as the "1935 Rules",

the jurisdictional limits within which a Muslim Registrar shall have a licence to act can be demarcated afresh and

as there has been a fresh demarcation of area within which the respondent No.5 could act as Muslim Marriage

Registrar, the petitioner could not act as a Registrar within the Hatsingimari area.

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In this regard the learned counsel for the respondent No. 5 has relied upon the letter dated 06.01.2018

issued by the Asstt. Inspector General of Registration, Assam, letter dated 19.01.2019 issued by the Circle

Officer, South Salmara Revenue Circle, letter dated 19.01.2019 issued by the Deputy Commissioner, South

Salmara, Mankachar district, the letter dated 01.03.2019 issued by the Circle Officer, Mankachar Revenue Circle

and the letter dated 31.05.2019 issued by the respondent No. 3(which is Annexure-F to the affidavit filed by the

respondent No. 3).

12. The learned counsel for the respondent No. 5 submits that as there has been new demarcation of the

area in which the petitioner could act, there is no infirmity with the State respondents giving a licence to the

respondent No. 5 to act as a Muslim Marriage Registrar in the Hatsingimari area.

13. I have heard the learned counsels for the parties.

14. The question that has to be decided is whether Hatsingimari is within the jurisdiction within which the

petitioner has been licenced to act as the Muslim marriage Registrar and whether the State respondents have

made a fresh demarcation of jurisdiction, within which the petitioner can act as a Muslim marriage Registrar.

15. Rule 5 of the Assam Muslim Marriages and Divorces Registration Rule, 1935, is produced hereinbelow:

"5. Jurisdiction- The limits within which a Moslem Registrar shall be licensed to Act shall coincide with the limits of a sub district under the Indian Registration Act, or with the jurisdiction of such police station or stations or parts thereof, as the Government may, from time to time, direct. The head quarters shall be at some convenient place within those limits."

As can be seen from Rule 5 of the 1935 Rules, a Muslim marriage Registrar can be licenced to act within

the limits of a Sub-district under the Indian Registration Act, or within the jurisdiction of such Police Station or

Stations or parts thereof, as the Government may from time to time, direct. The petitioner's licence dated

02.07.1997 having clearly spelt out his jurisdiction to be within the entire South Salmara Police Station and the

licence not having been modified or cancelled till date by the authorities, the petitioner's jurisdiction to act as a

Muslim marriage Registrar will continue to be within the jurisdiction of the entire South Salmara Police Station.

16. The fact that Hatsingimari is within the jurisdiction of the Kharuabanda Police Outpost, which in turn is

within the jurisdiction of the South Salmara Police Station is an undisputed question of fact. In that view of the

matter, Hatsingimari will have to be considered to be within the jurisdiction of the South Salmara Police Station Page No.# 6/8

area.

17. The learned counsel for the respondents have tried to make out a case that there has been a fresh

demarcation of area to the effect that Hatsingimari has been taken out from the jurisdiction of the South

Salmara Police Station, by relying upon the letter dated 06.01.2018 issued by the Asstt. Inspector General of

Registration, Assam, letter dated 19.01.2019 issued by the Circle Officer, South Salmara Revenue Circle, letter

dated 19.01.2019 issued by the Deputy Commissioner, South Salmara, Mankachar district, the letter dated

01.03.2019 issued by the Circle Officer, Mankachar Revenue Circle and the letter dated 31.05.2019 issued by the

respondent No. 3(which is Annexure-F to the affidavit filed by the respondent No. 3).

18. A perusal of the above letters which has been relied upon by the respondents, does not show

Hatsingimari has been taken out of the jurisdiction of the South Salmara Police Station. The letters relied upon

by the learned counsel for the respondent No. 5 only relates to whether it was necessary to open a new Muslim

Marriage Registrar Office at Hatsingimari under South Salmara District, as Hatsingimari was about 10 kms. away

from the earlier Muslim Marriage Registrar's Office at Hazirhat. The letters show that the proposal for opening a

new Muslim Marriage Registrar office at Hatsingimari had been made on the premise that there was no Muslim

Marriage Registrar Office under the jurisdiction of the South Salmara Police Station. This is clear from the letter

dated 01.03.2019, issued by the Circle Officer, Mankachar Revenue Circle and addressed to Deputy

Commissioner, South Salmara Mankachar District, which is reproduced below:-

"Sub.: Reg. Submission of report in connection with Opening of New MMR Office at Hatsingimari.

Ref._ Your Letter No. DC-3/PA/2017/116, dated 16.02.2018.

Madam,

With reference to the subject cited above, I have the honour to submit herewith the required information as sought for by you vide letter under reference in connection with Opening of New MMR Office at Hatsingimari as per LR Staff report as follows.

1. It is seen to be necessary to open a new MMR Office at Hatsignimari under South Salmara Mankachar District.

2. The Muslim population the area of proposed MMR office is 71,500 as per census 2011.

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3. There are 1,433 Nos of Muslim marriages have been performed during last three year by the nearest Muslim Registrar (Mankachar) (List enclosed).

4. The name of the villages under the jurisdiction of MMR Office is enclosed herewith.

5. The distance of proposed MMR office is about 22 KM away from Mankachar MMR Office.

6. There is only one Muslim Marriage Registrar office under Mankachar Revenue Circle.

Further it may be mentioned here that there is no Muslim Marriage Registrar office under the Jurisdiction of South Salmara Police Station. Hence the opening of a new MMR Office at Hatsingimari may be considered if your honour is pleased."

The last paragraph of the above letter dated 01.03.2019 issued by the Circle Officer, Mankachar

Revenue Circle clearly goes to show that the appointment of the respondent No. 5 has been made on the

premise that there was no Muslim Marriage Registrar office within the jurisdiction of the entire South Salmara

Police Station area. Thus, the appointment of the respondent No. 5 has been made on the basis of wrong facts

and in violation of Section 3 of the 1935 Act and Rule 5 of the 1935 Rules.

19. The appointment of the respondent No. 5 as a Muslim Marriage Registrar for Hatsingimari had then

been allowed on the basis of a letter dated 31.05.2019 issued by the respondent No. 3 to the District Registrar,

which is reproduced below:-

"Sub.: Opening of new MMR office at Hatsingimari and shifting of MMR office at Hazirhat

- regarding.

Ref.: Your letter No.HAA-8/2016/60 dated 19th January, 2019 and No.HAA-8/2016/70 dated 01.03.2019.

Sir,

With reference to the subject and letter Nos. cited above, I am to inform you that the Permanent Committee in its meeting held on 04.03.2019 reviewed its earlier decision of shifting of MMR office at Hazirhat to Hatsingimari and resolved that the MMR office at Hazirhat may be shifted from the place of erosion to a nearby place so that the MMR, Hazirhat be able to serve the people of Hazirhat area.

The Permanent Committee discussed the matter of viability report furnished by you as regards opening of a new MMR office at Hatsingimari and recommended the same.

You are, therefore requested to initiate the process of interview through local advertisement for selection of Muslim Marriage Registrar at Hatsingimari as per Resolution No. 3 of the minute of the meeting of the Permanent Committee held on 04.03.2019 (copy enclosed)."

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A perusal of the above letter dated 31.05.2019 shows that no fresh demarcation of area had been made

by the authorities, thereby taking out Hatsingimari from outside the jurisdiction of South Salmara Police Station.

Also, the above letter does not modify or cancel the jurisdiction of the petitioner's licence to act as a Muslim

Marriage Registrar within the jurisdiction of the entire South Salmara Police Station.

20. In view of the reasons stated above, this Court finds the Notification dated 06.01.2020 issued by the

respondents, by which the respondent has been given the licence to register the Muslim Marriages and Divorces

within Hatsingimari, South Salmara Mankachar District, to be illegal and unsustainable, in so far as it overlaps

the jurisdiction of the areas within the jurisdiction of petitioner's licence, i.e. within the jurisdiction of the entire

South Salmara Police Station, as it is hit by Section 3 of the "1935 Act" read with Rule 5 of the "1935 Rules".

Accordingly, the Notification dated 06.01.2020 issued to the respondent No. 5 is set aside, to the extent that the

said licence encompasses the areas within the jurisdiction of the South Salmara Police Station.

21. The Writ Petition is accordingly allowed.

JUDGE

Comparing Assistant