Page No. 1/14 vs The State Of Assam And 3 Ors
2025 Latest Caselaw 161 Gua

Gauhati High Court

Page No. 1/14 vs The State Of Assam And 3 Ors on 5 May, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                              Page No. 1/14

GAHC010056392025




                                                        2025:GAU-AS:5814

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

                       Case No. : WP(C)/1493/2025

         AMIT KUMAR DEB AND 8 OTHERS
         S/O LATE JOYTISH CHANDRA DEB, R/O HAILAKANDI ROAD, MEHERPUR
         IDGAH, SILCHAR, ASSAM, PIN-788006.

         2: SRI DIBYENDU DEB
          S/O LATE JANMEJOY DEB
          R/O JAIL ROAD
         AMBICAPUR
          SILCHAR
         ASSAM
          PIN-788006.

         3: JYOTIRMOY DEB
          S/O LATE JITENDRA KUMAR DEB
          R/O SETTLEMENT ROAD
         VIDYARTHI LANE-1
         WARD NO. 2
          SRIBHUMI (KARIMDANJ)
         ASSAM
          PIN-

         4: SMTI SUKLA DEB
          S/O LATE JANMAJOY DEB
          R/O JAIL ROAD
         AMBICAPUR
          SULCHYAR PART-1
          CACHAR
         ASSAM
          PIN-788004

         5: SMTI RUMPA PAUL
          D/O LATE JANMEJOY DEB
          R/O WARD NO. 13
          SILCHAR TOWN
                                                      Page No. 2/14

NEW BHAKATLUR
SILCHAR
CACHAR
ASSAM
PIN-788005

6: SMTI JULIE ROUTH
W/O JYOTISH CHANDRA DEB
 R/O NUTON PATH
 OPP. NORTH POINT SCHOOL
 P.O. DHARMANAGAR
 DIST- NORTH TRIPURA
TRIPURA.
 PIN-799250

7: ZAKIR HUSSAIN
 S/O ABDUL HASIB
 R/O VILL- KANAKPUR
 P.O. AND P.S. NILAMBAZAR
 DIST- SIRIBHUMI (KARIMGANJ
ASSAM
PIN-788722

8: NAZIM AHMED
 S/O ABDUL KHALIQUE
 R/O PATHERKANDI ROAD
 RAILWAY GATE
 BANAMALI
 P.O. P.S. AND DIST- SRIBHUMI (KARIMGANJ)
ASSAM
PIN-788710

9: SRI BEGUOM JAKIA FIRDOUSI
W/O KABIR HUSSAIN
 R/O KANAKPUR
 P.O. P.S. NILAMBASAR
 DIST- SRIBHUMI (KARIMGANJ)
ASSAM
 PIN-78872

VERSUS

THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM,
REVENUE AND DISASTER MANAGEMENT DEPTT. DISPUR, GUWAHATI-
781006

2:THE DISTRICT REGISRAR CUM DISTRICT COMMISSIONER
                                                                                              Page No. 3/14

               SRIBHUMI (KARIMGANJ)
               P.O. P.S. AND DIST- SRIBHUMI (KARIMGANJ)
               ASSAM
               PIN-788710

               3:THE SENIOR SUB REGISTRAR
                SRIBHUMI (KARIMGANJ) SADAR
                P.O. PS AND DIST- SRIBHUMI(KARIMGANJ)
               ASSAM
                PIN-788710

               4:THE SUB REGISTRAR
                SRIBHUMI (KARIMGANJ)
                SADAR
                P.O.
                P.S. AND DIST- SRIBHUMI (KARIMGANJ) ASSAM
                PIN-78871

Advocate for the Petitioner       : MR. A K TALUKDAR, A BEGUM,MR S ISLAM

Advocate for the Respondent : GA, ASSAM, SC, REVENUE

                                       BEFORE
                      HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                               JUDGMENT

Date : 05.05.2025

1. The petitioners, nine in nos., have joined together to institute the present writ petition under Article 226 of the Constitution of India being aggrieved by non-delivery of the notified public service, 'Composite Land Sale Transfer' by the respondent authorities within the stipulated time period despite submission of their applications on 03.05.2024 and 08.05.2024.

2. The events leading to the leading to the filing of the writ petition can be narrated, in brief, at first.

2.1. It is stated that the petitioner nos. 1 to 6 are the joint owners of a plot of land, covered by Dag no. 1087 and P.P. Patta no. 588, situate at Village - Karimganj Part-1 Block - 5, Mouza - Kushiarkul, Karimganj Revenue Circle, District - Karimganj [presently, Sribhumi] ['the subject-plot' for short]. These petitioners have stated that the the subject-plot was originally purchased by the fathers of the petitioner nos. 1, 2, 4, 5 & 6, namely, Late Jyotish Chandra Deb and Late Janmejay Deb and by their

own paternal uncle, who is the petitioner no. 3. The subject-plot was originally purchased by a Sale Deed no. 1367 dated 11.02.1976 registered at the Senior Sub-Registrar's Office, Karimganj. It is stated that after the deaths of Jyotish Chandra Deb and Janmejay Deb, the petitioner nos. 1, 2, 4, 5 & 6 became joint landowners of the subject-plot by inheritance along with the petitioner no. 3. The names of the nos. 1, 2, 4, 5 & 6 were also mutated in the revenue records for the subject-plot along with the petitioner no. 3. The petitioner nos. 1 to 6 have stated that they are in possession of the subject-plot of land since 11.02.1976.

2.2. As there arose necessity for the petitioner nos. 1 to 6 to sell the subject-plot, they entered into three agreements for sale of the subject-plot with the petitioner nos. 7 to 9 after mutual discussion and at agreed considerations. It is stated that the petitioner nos. 7 to 9 in order to purchase different areas of land out of the subject-plot separately, they have paid different advance amounts out of the agreed consideration amounts.

2.3. It is stated that the petitioners had submitted three different applications before the respondent authorities to avail the notified public service, 'Composite Land Sale Transfer' on 03.05.2024, 08.05.2024 and 08.05.2024 respectively. The receipt of the said application was acknowledged vide Application Reference nos. NOC/21/33695/2024, NOC/21/33783/2024 and NOC/21/33785/2024 respectively.

2.4. The petitioners have stated that the applications were submitted in the comprehensive citizen platform, 'Sewa Setu'. The petitioners have further stated that while submitting the applications all the requisite documents were also submitted along with them. To the knowledge of the petitioners, the respondent authorities had thereafter, commenced enquiry for the purpose of deciding the applications for the notified public service, 'Composite Land Sale Transfer'. While acknowledging the receipt of the applications submitted for the notified public service, 'Composite Land Sale Transfer', it was notified that the notified public service would be provided within forty-five days and the petitioners could file an appeal if the service was not delivered within the said stipulated period. As the applications were neither processed providing the notified public service nor rejected within the stipulated period of time, the petitioners had preferred the writ petition.

3. I have heard Mr. A.K. Talukdar, learned counsel for the petitioners; Ms. G. Hazarika, learned

Standing Counsel, Revenue & Disaster Management Department for the respondent no. 1; and Mr. H. Sarma, learned Additional Senior Government Advocate, Assam for the respondent nos. 2, 3 & 4.

4. Mr. Talukdar, learned counsel for the petitioner has submitted that the service, 'Composite Land Sale Transfer' has been declared to be a notified public service under the Assam Right to Public Services Act, 2012 ['the ARTPS Act', for short] in all the districts vide a Notification bearing no. RDM-12011[17]/5/2022-LR-REV-R&DM/95 [e-file no: 234314] dated 11.11.2022. As per the said Notification, the Designated Public Servant [DPS] is the Deputy Commissioner [presently District Commissioner]/anyone to be nominated by the District Commissioner. As per the said Notification and the Citizen Charter annexed thereto as Annexure-I, the stipulated time limit for providing the service is forty-five working days.

4.1. Learned counsel for the petitioners has submitted that after filing of the writ petition, when the petitioners tracked their applications in the comprehensive citizen platform, 'Sewa Setu', the portal was showing the current status of their applications on 27.05.2025 as 'Rejected'. Copies of the applications' processing history are placed before the court for perusal.

4.2. Referring to the Order of Rejection passed by the Designated Public Servant, Mr. Talukdar has submitted that the impugned Rejection Order is a non-speaking one. Considering the fact that the Rejection Order passed by the Designated Public Servant under the provisions of the ARTPS Act is an appealable order, obligation is cast on the Designated Public Servant to record the reasons for rejection. Non-recording of the reasons has made the rejection order an arbitrary one and the same is liable to be set aside. The learned counsel for the petitioners has referred to the provisions of Section 21A of the Registration Act, 1908, as amended by the Registration [Assam Amendment] Act, 2009 and Section 7[2] of the ARTPS Act, as amended.

5. The learned counsel for the official respondents have submitted that since the Order of Rejection is an appealable one, the petitioners instead of invoking the extra-ordinary writ jurisdiction, ought to have approached the Appellate Authority by preferring an appeal. Mr. Sarma, learned Additional Senior Government Advocate has further submitted that the applications of the petitioners were rejected finding certain discrepancies in the land records and the applications. He has submitted that he has received the instructions wherein the reasons for rejection of the petitioners' applications are

mentioned.

6. I have duly considered the submissions of the learned counsel for the parties and have also gone through the materials brought on record by the petitioners. I have also gone through the provisions of the Assam Right to Public Services Act, 2012, as amended, and Section 21A of the Registration Act, 1908, as amended by the Registration [Assam Amendment] Act, 2009.

7. The Assam Right to Public Services [ARPTS] Act, 2012 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 ARTPS Act received the assent of the Governor of Assam on 27.04.2012 and was notified by a notification dated 02.05.2012. The ARTPS Act has been published in the Assam Gazette in its issue dated 02.05.2012.

8. As per Section 2[h], 'Right to Public Service' means right to obtain the notified service under the ARTPS Act from time to time within the stipulated time limit as prescribed under Section 5. Section 5 of the ARTPS Act has laid down that every eligible person shall have the right to obtain the services in accordance with the ARTPS Act within the time bound period as notified under Section 4. It is the liability of the Designated Public Servant to deliver services, under Section 6 of the ARTPS 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. It is further mentioned that such application shall be duly acknowledged.

9. 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.

10. 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 subsection [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.

11. 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.

12. It may also be apposite to refer to the relevant provisions of the Registration Act.

13. 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. A nos. of States have made a nos. of amendments in the Registration Act, 1908. The State of Assam has also made a number of amendments in the Registration Act, 1908.

14. 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 :-

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.

15. 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 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.

16. 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 said stipulated period.

17. The provisions of Section 7[2] of the Assam Right to Public Services Act, 2012, as amended, and the proviso to Section 21A of the Registration Act, 1908, as amended by the Registration [Assam Amendment] Act, 2009, have cast obligation on the Designated Public Servant or on the jurisdictional District Commissioner, as the case may be, to record the reasons in the event it decides to reject an application for a notified public service or for a No Objection Certificate [NOC] for registration of a sale deed, as the case may be.

18. In the case in hand, the applications submitted by the petitioners for the notified public service, 'Composite Land Sale Transfer' have been rejected by the respondent no. 3 citing the reason : 'The Application is Rejected by Circle Officer [As per report submitted by LRA the NOC may not be accepted]'. The comprehensive citizen platform, 'Sewa Setu', has shown the applications' processing history as under :-

Application processing history Date & Time Task details Remarks 2025-02-13 00:00:00 Return, LRA The Application is forwarded to Circle Officer by Lat Mandal. 2025-02-27 00:00:00 Reject, CO The Application is Rejected by Circle Officer [As per report submitted by LRA the NOC may not be accepted].

19. The Notification dated 11.11.2022 is on the subject :- 'Declaration of Service under Revenue & DM Department as per provision of the Assam Right to Public Services Act, 2012 in all Districts [except sixth scheduled Districts] of Assam. The notification has been issued with a view to provide delivery of public service to eligible citizens within the stipulated time limit and others as under :-

Subject : Declaration of Service under Revenue & DM Department as per provision of the Assam Right to Public Services Act, 2012 in all Districts [except sixth scheduled Districts] of Assam.

With a view to provide the delivery to Public Service to eligible citizens within stipulated time limit, Revenue & DM Department in continuation of earlier Notification No.

RSS.203/2022/1 dated 6th May 2022 has notified the below service under the Assam Right to Public Services Act, 2012.

Service Name : Composite Land Service Transfer An important service provided by the Deputy Commissioner regarding Land Sale permission is 'NoC for Transfer of Immovable Property' under section 21[A] of the Indian Registration Act, 1908. However once NoC is issued by the O/o the Deputy Commissioner, applicant has to apply for Registration of the Scheduled land in Sub Registrar Office following separate applications for Mutation, Partition, Jamabandi etc. in the concerned Circle Office.

'Composite Land Sale Transfer' intends for issuing No Objection Certificate for the Transfer of Immovable property at O/o Deputy Commissioner followed by Registration of

Property at the Sub Registrar Office followed by auto mutation and auto Composite Land Sale Transfer Service with 'Auto Mutation' or 'Auto Mutation along with Partition' at the time of submitting the Application form.

Eligibility criteria :

Anyone in whose name figures in Jamabandi/Record of Rights or his/her legal heir/successor or his/her registered power of attorney holder is eligible to avail the service online.

Designated Public Servant [DPS] :

Deputy Commissioner/to the nominated by Deputy Commissioner.

20. The Notification has further provided for procedural steps to be followed by the authorities involved in providing the notified public services. The notification has further mentioned about the user charges. As per the Citizen Charter annexed to the Notification as Annexure-I, for the notified public service 'Composite Land Sale Transfer', the Deputy Commissioner or the authority to be nominated by the Deputy Commissioner is the Designated Public Servant and the stipulated time limit for providing the service is mentioned as forty-five days. In the Citizen Charter, the Commissioner of Divisions has been mentioned as the appellate authority.

21. It is submitted by Ms. Hazarika, learned Standing Counsel, Revenue & Disaster Management Department that the Office of the Commissioner of Divisions has been abolished in the meantime and presently, by another Notification dated 16.11.2023, the Revenue & Disaster Management Department has been made the Appellate Authority.

22. On perusal of the impugned Order of Rejection, it is evidently clear that the impugned Order is not in conformity with Section 7[2] of the ARTPS Act and Section 21A of the Registration Act, 1908, as amended by the Registration [Assam Amendment] Act, 2009.

23. A speaking order is one which expressly states the reasons for the decision. In other words, a speaking order speaks for itself by assigning the reasons behind the conclusion. If an order is passed

without giving a reason by the concerned authority, more particularly, when the authority is statutory authority then the order is a non-speaking one. Non-speaking order is one which does not provide a clear reason for its decision. The authority exercising the statutory power must record reasons for its decision, unless such obligation is not expressly or impliedly dispensed with. It is implicit in the principles of natural justice and fair play that an authority which has been vested with the power to decide the matter should record reasons as it is part of fair procedure, more particularly, when the decision is likely to affect the person concerned. In the case in hand, the right of the applicant is also traceable to Article 300A of the Constitution. Though the right provided in Article 300A is not fundamental right, but it is still a constitutional and human right. Recording of reasons is also prima facie suggestive of conscious application of mind on the part of the authority. The obligation to record reasons is a possible check against arbitrary action on the part of the authority invested with the statutory power to take a decision which is likely to affect the right of the person concerned. When the statute itself contains a prescription to record reasons in the decision, absence of reasons in the decision falls short of prescription and would be in violation of the prescription and thus, illegal.

24. It has been canvassed on behalf of the official respondents that the petitioners have approached this Court by filing the instant writ petition in order to invoke the extra ordinary remedy instead of availing an alternative statutory remedy which is adequate and efficacious. It is settled law that even in presence of an alternative, efficacious and statutory remedy of appeal, a writ petition under article 226 of the Constitution of India is maintainable on the grounds :- [i] where the writ petitioner seeks enforcement of any of the fundamental rights; or [ii] where there is failure of principles of natural justice; or [iii] where the orders or proceedings are wholly without jurisdiction; or [iv] where the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar.

25. 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. The requirement to observe the principles of natural justice arises also in respect of administrative action which is likely to bring an adverse effect on an individual. It may be mentioned that a landholder has a permanent, heritable and transferable right to use and occupancy in his land under the Assam Land and Revenue Regulation, 1886. An order which affects the right of a citizen or a person, also 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 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.

28. In the case in hand, the Designated Public Servant has only mentioned that the application has been rejected on the ground that as per Report submitted by LRA, the NOC was not be accepted. The Circle Officer seems have acted on some Report of LRA, without mentioning anything about the Report submitted by the LRA. This court has not been apprised as to what LRA stands and what authority LRA exercises on the subject-matter. Such vagueness in the Rejection Order would not enable the petitioners to meet the deficiencies, if there is any, and to submit a fresh application or to prefer an appeal. It is also a well established principle of administrative law that an administrative authority while adjudicating cannot base its decision on any materials unless the person against whom it is sought to be utilized has been apprised of it and given an opportunity to respond to it. From such standpoint, the passing of the Order of Rejection on the basis of a report of the LRA[?] without providing a copy of it to the petitioners is also deprivation of the opportunity of being heard.

29. In the case in hand, the petitioners have alleged violation of the principles of natural justice. The Designated Public Servant while deciding their applications for the notified public service, by not passing a reasoned and speaking order has violated the principles of natural justice.

30. In view of the above fact situation, this Court is of the considered view that when the incident of vulnerability of the Order of Rejection on the touchstone of not meeting the statutory prescription of recording reasons and violation of principles of natural justice is considered against the point canvassed by the official respondents regarding non-filing of appeal it is the vulnerability of the Order of Rejection of the application which would far outweigh the other reason regarding the petitioners not approaching the appellate forum.

31. In respect of the submission of the learned counsel for the official respondents that ground of rejection have now been provided to them, the Court finds it apposite to refer to the following

observations made in the decision in Mohinder Singh Gill and another vs. Chief Election Commissioner, New Delhi and others, [1978] 1 SCC 405, :-

8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in GordhandasBhanji :

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older.

32. Thus, from every stand point, the impugned Rejection Order dated 27.02.2025 is found to be a non-speaking order. The impugned Rejection Order dated 27.02.2025 is found to be one which is passed without any application of mind. For the afore-stated reasons, the impugned Rejection Order dated 27.05.2025 cannot stand the scrutiny of law and is, therefore, liable to be set aside. It is accordingly, set aside.

33. As the Rejection Order has been set aside, it is now the obligation of the Designated Public Servant to consider the applications submitted by the petitioners for the notified public service, 'Composite Land Sale Transfer' strictly in compliance of the provisions of Section 7[2] of the ARTPS Act; the proviso to Section 21A of the Registration Act, 1908, as amended by the Registration [Assam Amendment] Act, 2009; and the Notification dated 11.11.2022; and thereafter, to pass a speaking order

within the period of three weeks days from the date of submission of a copy of this order by the petitioners at the office of the Designated Public Servant.

34. With the observations made, the findings reached at and directions given above, the writ petition is disposed of. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant