Page No.# 1/ vs The State Of Assam And Three Ors
2025 Latest Caselaw 4366 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And Three Ors on 24 March, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                              Page No.# 1/11

GAHC010271672024




                                                         2025:GAU-AS:4152

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

                           Case No. : WP(C)/6813/2024

         HABIBAR RAHMAN
         S/O- LATE AYUB ALI,
         R/O- BARPETA TOWN, WARD NO-14,
         P.O AND DIST- BARPETA, ASSAM, PIN-781301



         VERSUS

         THE STATE OF ASSAM AND THREE ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         REVENUE AND DISASTER MANAGEMENT DEPARTMENT,
         DISTRICT- KAMRUP(M), ASSAM.

         2:THE INSPECTOR GENERAL OF REGISTRATION

          O/O THE DIRECTOR OF LAND RECORDS

          ASSAM
          RUPNAGAR
          GUWAHATI-32.

         3:THE DISTRICT COMMISSIONER
          BARPETA (LAND REVENUE BRANCH) CUM REGISTRAR

         P.O AND DIST- BARPETA
         ASSAM
          PIN-781301

         4:IN CHARGE SUB REGISTRAR CUM ADDL. DISTRICT COMMISSIONER
          BARPETA

         P.O AND DIST- BARPETA
         ASSAM
                                                                                    Page No.# 2/11

             PIN-78130

Advocate for the Petitioner   : MR. S C BISWAS, MR. F A HASSAN

Advocate for the Respondent : GA, ASSAM, MR B GOSWAMI,SC, REVENUE

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER

24.03.2025

Heard Mr. S.C. Biswas, learned counsel for the petitioner; Mr. B. Goswami, learned Additional Advocate General, Assam assisted by Mr. J. Handique, learned Junior Government Advocate, Assam; and Mr. P. Kakoti, learned counsel for the all the respondents.

2. In this writ petition instituted under Article 226 of the Constitution of India, the petitioner has projected that he is a joint pattadar and owner of a plot of land, measuring 1 Katha, covered by Dag no. 705 & K.P. Patta no. 26, situate at Village - Dangarkuchi Gaon, Mouza - Ghilazari, Barpeta Revenue Circle, District - Barpeta ['the subject-plot', for short]. The petitioner has further stated that the petitioner's son is presently pursuing his course of Master of Business Administrative [MBA] at NERIM Group of Institutions at Guwahati. In order to pay admission fees and other education expenses for the MBA course, there has arisen an urgent requirement of a substantial amount of money. The petitioner has, therefore, offered to sell the subject-plot to an intended purchaser.

2.1. The petitioner has stated that after executing an agreement for sale of the subject-plot with an intended purchaser, the petitioner submitted an application for granting a No Objection Certificate [NOC] for Sale/Transfer of Land before the jurisdictional Development Authority. The petitioner has been issued a No Objection Certificate [NOC] for Sale/Transfer of the subject-plot of land by the Barpeta Development Authority, constituted under the Assam Town and Country Planning Act, 1959, on 08.08.2024. The petitioner has stated that Page No.# 3/11

as he was also required to get a Sale Permission / No Objection Certificate [NOC] to sell the subject-plot from the jurisdictional District Commissioner, he had also applied for Sale Permission/NOC before the respondent no. 3 on 29.05.2024 by following all the requisite formalities. After processing the application, the respondent no. 3 on 25.06.2024, issued a No Objection Certificate [NOC] for transfer of the subject-plot by way of sell, etc. to the petitioner in respect of the subject-plot.

2.2. After getting permissions from the Barpeta Development Authority and the respondent no. 3, the petitioner applied online for registration of the Sale Deed along with the afore- mentioned Sale Permissions/NOCs before the respondent no. 3, who is also the jurisdictional District Registrar. The respondent no. 3 on 03.10.2024, acknowledged the receipt of the application for Deed Registration vide Acknowledgment no. 20240002996089. While issuing acknowledgement, it was further mentioned that the petitioner could prefer an appeal if the service was not delivered within one day. The office of the District Registrar, Barpeta had also generated a Pre-Registration Summary incorporating the details for effecting registration of the Sale Deed. As the service of Deed Registration has not been provided by the District Commissioner -cum- District Registrar, Barpeta [the respondent no. 3] despite elapse of a long period without assigning any reason, the petitioner has approached this Court by the instant writ petition on 16.12.2024.

3. Mr. Biswas, learned counsel for the petitioner has submitted that the petitioner has submitted all the supporting documents in support of his application for registration of Sale Deed. Despite submission of all the supporting documents, the respondent no. 3 and the respondent no. 4 have not yet disposed of the application of the petitioner. As an applicant/citizen, the petitioner at least has the right to know the reason as to why his application for registration of Sale Deed has not yet been disposed of and the petitioner has to approach the Court seeking a direction to the respondent authorities, more particularly, the respondent no. 3 and the respondent no. 4 to expedite the registration process of the Sale Deed.

4. Mr. Goswami, learned Additional Advocate General, Assam appearing for the Page No.# 4/11

respondents has submitted that there are valid reasons for not registering the Sale Deed of the petitioner by the respondent no. 3 and the respondent no. 4. He has submitted that by Office Memoranda, dated 06.09.2024 & dated 20.02.2025, issued by the State Government in the Revenue & Disaster Management, certain restrictions have been put in place for grant of sale permission inter-alia in respect of lands falling in Barpeta Town of Barpeta district. It is in view of such restrictions, the Sale Deed submitted by the petitioner on 03.10.2024 has not been registered. Mr. Goswami has further submitted that by another Office Memorandum dated 06.03.2025, the restrictions placed earlier in respect of grant of sale permission in respect of lands falling in Barpeta Town of Barpeta district, have been extended for a further period of forty-five days. He has submitted that such restrictions have been placed in view of amendments passed by the Assam Legislative Assembly to insert Chapter XII in the Assam Land and Revenue Regulation, 1886. It is submitted by Mr. Goswami that because of the reasons recorded in the aforesaid Office Memoranda, the application submitted for registration of the Sale Deed in respect of the subject-plot falling within the areas covered by the Office Memoranda, has not yet been disposed of.

5. I have considered the submissions of the learned counsel for the parties and have also gone through the materials brought on record including the Office Memoranda and the instructions in Office Letter no. BRN-3/2025/Court/55 dated 20.02.2025 of the respondent no. 3, placed by the learned State Counsel.

6. Entry 6 of List III [Concurrent List] of Seventh Schedule to the Constitution of India has provided for 'Registration of Deeds and Documents'. The Registration Act, 1908 is a Central Act and the States are empowered, because of Entry 6 of List III, to make amendments in the Registration Act, 1908. Different States have made a number of amendments in the Registration Act, 1908. The State of Assam has also made a number of amendments in the Registration Act, 1908.

7. The Registration Act, 1908 has been amended by the Registration [Assam Amendment] Act, 2009, in its application to the State of Assam by insertion of a new 'Section 21A', which reads as under :-

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21A. No registration of non-testamentary instruments without no objection certificate.

Notwithstanding anything contained in any other provision of this Act, no non-testamentary instrument relating to immovable property shall be accepted for registration, unless the Deputy Commissioner of the concerned district issues a No Objection Certificate containing the description of such immovable property to be transferred and also such other No Objection Certificates, which are required to be issued by the Deputy Commissioner or any other Authority under any law for the time being in force or under any Executive Instruction, Order etc. issued by the State Government from time to time :

Provided that all such No Objection Certificates shall be issued within a period of thirty days from the date of the receipt of application and in case No Objection Certificate is not issued within the stipulated period of thirty days, a speaking order with reasons thereof shall be issued to the applicant within the said stipulated period.

8. The main enacting part of Section 21A, quoted above, is with a non-obstante clause. It has provided that no non-testamentary instrument relating to immovable property shall be accepted for registration unless the Deputy Commissioner of the concerned district issues a No Objection Certificate containing the description of such immovable property to be transferred and also such other No Objection Certificates, which are required to be issued by the Deputy Commissioner or any other Authority under any law for the time being in force or under any Executive Instruction, Order, etc. issued by the State Government from time to time.

9. In the proviso to Section 21A of the Registration Act, 1908, it is provided that all such No Objection Certificates shall be issued within a period of thirty days from the date of receipt of application and in case No Objection Certificate is not issued within the stipulated period of thirty days, a speaking order with reasons thereof shall be issued to the applicant within the Page No.# 6/11

said stipulated period.

10. After analyzing the provisions of the Registration Act, the Hon'ble Supreme Court in case titled Asset Reconstruction Company [India] Limited vs. S.P. Velayutham and others, [2022] 8 SCC 210, has observed as under :-

53. Actually, the registration of a document comprises of three essential steps among others. They are, [i] execution of the document, by the executant signing or affixing his left hand thumb impression; [ii] presenting the document for registration and admitting to the Registering Authority the execution of such document; and [iii] the act of registration of the document.

* * * *

56. Thus, the first two steps in the process of registration are substantial in nature, with the parties to the document playing the role of the lead actors and the Registering Authority playing a guest role in the second step. The third step is procedural in nature where the Registering Authority is the lead actor.

57. ..... But where a party questions only the failure of the Registering Authority to perform his statutory duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted. This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities perform their duties within the bounds of law.

11. It has been contended on behalf of the petitioner that the service, 'Deed Registration' is a notified public service under the Assam Right to Public Services Act, 2012, as amended.

12. The service of registration of the Sale Deed is admittedly, a notified public service Page No.# 7/11

under the Assam Right to Public Services Act, 2012, as amended.

13. The 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 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.

14. Section 7 of the Assam Right to Public Services Act, 2012, as amended, is quoted hereinbelow, for ready reference, :-

7. Providing notified services within stipulated time limit :

[1] The stipulated time limit shall start from the date when the application for obtaining a required notified service is submitted to the Designated Public Servant or to a person sub- ordinate to him authorized to receive the application. Such application shall be duly acknowledged.

[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 Page No.# 8/11

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.

15. Section 8 of the ARTPS Act has provided for an appeal before the Appellate Authority and also for a review before the Reviewing Authority. As per sub-section [1] of Section 8 any person, whose application is rejected under sub-section [2] of section 7 or who has not been provided the notified service within the stipulated time limit, may file an appeal to the Appellate Authority within thirty days from the date of rejection of application or the expiry of the stipulated time limit. The first proviso to sub-section [1] of Section 8 has provided that the Appellate Authority may admit the appeal after the expiry of the period of thirty days but in no case beyond sixty days or the expiry of the stipulated time limit for delivery of that particular notified service, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. The second proviso to sub-section [1] of Section 8 has provided further that in case of rejection of an application for a notified service for which any other law for the time being in force prescribes remedy, the applicant shall follow the process under such law for the time being in force.

16. The recording of reasons in the order passed by the Designated Public Servant who deals with the matter at the first stage, is necessary. The responsibility to record reasons is higher when the order to be passed by the original authority at the first stage by the Designated Public Servant is an appealable order. An order which affects the right of a citizen or a person, requires recording of reasons as the reasons recorded would aid the appellate authority to see whether the original authority concerned has acted fairly and reasonably to the aggrieved person. The recording of reasons in the order, more particularly, when the adverse order has the possibility of impacting a citizen or a person adversely is necessary as then only the person aggrieved can have the knowledge of the reasons as to why the order Page No.# 9/11

has been passed and he can have a proper opportunity to demonstrate before the appellate authority that the reasons which impelled the Designated Public Servant to pass the adverse order against him, are erroneous, arbitrary, untenable or unjust.

17. In the case in hand, it transpires that the Deputy Commissioner has already issued a No Objection Certificate [NOC] for sell/transfer of the subject-plot on 25.06.2024 and similarly, jurisdictional Development Authority has issued NOC for sell/transfer of the subject- plot on 08.8.2024 under the provisions of the Assam Town and Country Planning Act, 1959.

18. On perusal of the Office Memoranda - dated 06.09.2024, dated 20.01.2025 & dated 06.03.2025 - issued by the Revenue & Disaster Management Department, Government of Assam, it is noticed that the Office Memoranda are on the subject : 'Temporary Measures Related to Land Sale and Mutation in Selected Areas'. In the Office Memorandum dated 06.09.2024, it was mentioned that in view of the amendments passed by the Assam Legislative Assembly to insert Chapter XII in the Assam Land and Revenue Regulation, 1886, a nos. of temporary measures were implemented with immediate effect and until further orders. One of the measures mentioned therein was with regard to lands falling in Barpeta town in Barpeta District. It was mentioned that in respect of lands falling in Barpeta town in Barpeta District, no new land sale permission would be granted for a period of forty-five days and it would be reviewed after completion of the forty-five days period, subject to prevailing circumstances. The Office Memorandum dated 20.01.2025 was stated to be in continuation of the Office Memorandum dated 06.09.2024 and the temporary restriction, mentioned in the Office Memorandum dated 06.09.2024, for sale permission in respect of lands falling in Barpeta town in Barpeta District was extended for a period of forty-five days with a further statement that the matter would be reviewed after completion of the forty-five days period. It was further mentioned that the restriction would also be applicable during the interim period from 22.10.2024 till the date, 06.09.2024. The Office Memorandum dated 06.03.2025 is in continuation of the Office Memorandum dated 20.01.2025 and the same restriction in respect of lands falling in Barpeta town in Barpeta District has been continued. In all the Office Memoranda, it is mentioned that no fresh mutation shall be processed in respect of lands falling in Barpeta town in Barpeta District during the currency of those Office Memoranda.

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19. Section 21A of the Registration Act, as applicable in the State of Assam are quoted above, speaks about issuance of no objection certificate by District Commissioner as a condition precedent for registration of any sale deed and also such other no objections, which are required to be issued by the Deputy Commissioner or any other authority under any law for the time being in force or under any Executive Instruction, Orders, etc. issued by the State Government from time to time. The Office Memoranda, discussed above, speak about non-issuance of Land Sale Permission and non-processing of mutation application. The Office Memoranda do not specifically mention about any other kind of no objection certificate. The Office Memoranda cannot be said to have retrospective effect. The No Objection Certificate for sale/transfer of the subject-plot in the case in hand was granted on 25.06.2024, that is, earlier to the first of the Office Memoranda dated 06.09.2024.

20. It is trite to observe that public authorities cannot play fast and loose with the powers vested in them and the persons whose matters are dealt with, are entitled to know with exactness and precision what they are expected to do or forebear from doing.

21. Reverting back to the facts of the case, it is noticed that the petitioner submitted an application online for the notified service before the Designated Public Servant on 03.10.2024 and while acknowledging the application, the Designated Public Servant had observed that the service would be provided within a period of one day and in the event the service is not delivered within a period of one day, applicant can raise an appeal. Since 03.10.2024 more than a period of five months have elapsed, the Designated Public Servant under sub-section [2] of Section 7 of the Assam Right to Public Services Act, 2012, as amended, has to provide notified public service or else reject the application and, in case of rejection of the application, he shall have to 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. It is not possible to hold that preferring an appeal for not providing the notified service within the stipulated time period is as effective and appellate remedy as an appeal preferred against order of rejection recording reason.

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22. As the prayer in the writ petition is for a direction to the respondent authorities, more particularly, the respondent no. 3 and the respondent no. 4 to immediately initiate and expedite the registration process of the sale deed in respect of the subject-plot of land, it is not necessary to dwell further on the Office Memoranda or on the reasoning put forth on behalf of the State respondents on merits.

23. In such view of the matter, this writ petition is disposed of with a direction to the Designated Public Servant [the respondent no. 3 and/or the respondent no. 4] to pass a speaking order in terms of the provisions of Section 7 of the Assam Right to Public Services Act, 2012, as amended, either allowing the application or rejecting the application recording his reasons for such rejection. It is observed that the order so passed shall immediately be communicated to the petitioner forthwith thereafter, besides uploading it in the portal. It is further observed that this Court has not observed anything on the merits of the respective claims of the parties and therefore, the Designated Public Servant is required to dispose of the application on its own merits and in accordance with law.

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

JUDGE

Comparing Assistant