Dismissed¶14

Baksa Sheikh v. the State of Assam and 4 Ors.

Gauhati HC16 Mar 2025WP(C)/5314/2020

Case brief

AI extract

What is this about?

Alternative remedy doctrine; Article 226 writ jurisdiction; writ petition not entertained; Assam Right to Public Services Act 2012 (Assam Act IX of 2012); ARTPS Amendment Act 2019 (Assam Act VII of 2019); ARTPS Rules 2012; notified service 'demarcation'; Dhubri Deputy Commissioner; land demarcation delay; Section 8 appeal and second appeal; Section 9(2)(a); Section 8(3)(4); Section 14 overriding effect; Assam Administrative Tribunal exercising functions of Assam State Commission for Right to Public Services; penalty for delay in providing notified public service; Whirpool Corporation v. Registrar of Trade Marks (1998) 8 SCC 1; Gauhati High Court 2025.

What did the court decide?

Writ petition not entertained and closed, with liberty to the petitioner to approach the appropriate authority under the Assam Right to Public Services Act, 2012.

Baksa Sheikh Vs the State of Assam and 4 Ors. — Gauhati HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Writ petition not entertained and closed, with liberty to the petitioner to approach the appropriate authority under the Assam Right to Public Services Act, 2012.

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Issue for consideration

Whether relief by way of writ petition lies for non-completion of demarcation of the petitioners' father's land by respondent No. 3, the Deputy Commissioner, Dhubri, despite several dates fixed for the demarcation process. +1 more

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Ratio / Principle

On analysis of the provisions of the alternative statutory remedy available to the petitioner, this Court is of the considered view that such remedy is an efficacious and adequate one.

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Key takeaways

The petitioner has an efficacious remedy under Sections 9(2)(a) and Section 8(3)(4) of the ARTPS Act, and the appellate authority can even impose penalty if the public service is not provided within the time stipulated under the Act.ratio¶12
The writ petition is not to be entertained, as it is open to the petitioner to have recourse to the remedy under the ARTPS Act; the petition stands closed with liberty to approach the appropriate authority under the Act, 2012.ratio¶13

Detailed headnote1 paragraphs

Gauhati High Court, WP(C)/5314/2020, decided 17.03.2025 by Arun Dev Choudhury, J. The petitioner was aggrieved that demarcation of his father Sobur Uddin Munshi's land had not been carried out by the Deputy Commissioner, Dhubri, though several dates were fixed for completing the demarcation. The Court surveyed the Assam Right to Public Services Act, 2012 (Assam Act no. IX of 2012), amended by the Assam Right to Public Services [Amendment] Act, 2019 (Assam Act no. VII of 2019), noting that 'demarcation' is a notified service under the Act (notification no. AR.69/2011/PtII/96 dated 10.04.2013), that Section 8 provides for appeal and second appeal before the Appellate Authority and the Assam State Commission for Right to Public Services, that Section 14 gives the Act overriding effect, and that the Assam Administrative Tribunal currently exercises the Commission's functions (notification no. AR.39/2017/149 dated 04.03.2020). Relying on Whirpool Corporation v. Registrar of Trade Marks, Mumbai and others, [1998] 8 SCC 1, on the plenary but discretionary nature of Article 226 jurisdiction where an effective and efficacious alternative remedy exists, the Court held that the remedy available to the petitioner under Sections 9(2)(a) and Section 8(3)(4) of the ARTPS Act is efficacious and adequate, the appellate authority being empowered even to impose penalty for delayed delivery of the notified service. The writ petition was held not entertainable and stands closed with liberty to the petitioner to approach the appropriate authority under the Act, 2012.

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GAHC010178172020

2025:GAU-AS:2726

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

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Case No. : WP(C)/5314/2020

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BAKSA SHEIKH

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S/O- LT. CHABAR UDDIN MUNSHI, R/O- VILL- NAYERALGA PT-III (BAGMARA), P.O. NAYERALGA, P.S. BILASIPARA, DIST.- DHUBRI (ASSAM), PIN- 783348

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VERSUS

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THE STATE OF ASSAM AND 4 ORS REP. BY THE CHIEF SECY., GOVT. OF ASSAM, DISPUR, GHY-06

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2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM REVENUE AND SETTLEMENT DEPTT. DISPUR GHY-06

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3:THE DY. COMMISSIONER DHUBRI P.S. AND P.O. DHUBRI PIN- 783301

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4:THE SETTLEMENT OFFICER DHUBRI P.O. AND P.S. AND DIST.- DHUBRI ASSAM PIN- 783301

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5:THE CIRCLE OFFICER DHUBRI REVENUE CIRCLE P.O. AND P.S.- DHUBRI DIST.- DHUBRI ASSAM

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PIN- 78330

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Advocate for the Petitioner : MR. M U MONDAL, MS. N NASRIN,MD. I H KHAN Advocate for the Respondent : GA, ASSAM, SC, REVENUE

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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17.03.2025

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Heard Mr. M. U. Mondal, learned counsel for the petitioners. Also heard Ms. G. Hazarika, learned Standing Counsel for the Revenue Department representing the respondent No. 2 and Ms. U. Das, learned Additional Senior Government Advocate, Assam representing the respondent Nos. 1, 3, 4 and 5.

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The petitioners are aggrieved that demarcation of land belonging to the petitioners’ father, Sobur Uddin Munshi, has not been carried out by the respondent No. 3 i.e. the Deputy Commissioner, Dhubri, though several dates have been fixed for completion of the demarcation process.

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The State Legislature has enacted an act, ‘the Assam Right to Public Services Act, 2012 [Assam Act no. IX of 2012]’ the Preamble of which states that it is an Act to provide for the delivery of the 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 State Legislature has made certain amendments in the provisions of ‘the Assam Right to Public Services Act, 2012’ by ‘the Assam Right to Public Services [Amendment] Act, 2019 [Assam Act no. VII of 2019]’ [‘the ARTPS (Amendment) Act’, for short]. In exercise of the powers conferred by Section 15 of the ARTPS Act, the State Government has also made a set of rules viz. the Assam Right to Public Services Rules, 2012 [‘the ARTPS

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Rules’, for short].

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The State Government, in exercise of powers conferred under Section 4 of the ARTPS Act has declared that the ARTPS Act has come into effect to the whole State except in the districts of Kokrajhar, Chirang, Baksa, Udalguri, Karbi Anglong and Dima Hasao.

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As per Section 2[h], ‘Right to Public Service’ means the right to obtain the notified service under the ARTPS Act from time to time within the stipulated time limit as prescribed under Section 5. ‘Notified service’, as per Section 2[i], means any service notified by the State Government under Section-4. Section 2[k] has provided for the ‘stipulated time limit’ which means the maximum time to provide the service the service by the Designated Public Servant or to decide the appeals by the appellate authorities as notified under Section 4.

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The Designated Public Servant on receipt of an application to provide a notified service shall either provide the notified service or reject the application and in case of rejection of an 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.

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Section 8 has made provisions for appeal as well as for second appeal before an Appellate Authority and the Assam State Commission for Right to Public Services [‘the Commission’, for short] respectively, within the time limits provided therefor.

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By a notification no. AR.39/2017/149 dated 04.03.2020 of the Administrative Reforms and Training Department, Government of Assam, it has been notified that the Assam Administrative Tribunal shall exercise the powers and perform the functions of the Assam State Commission for Right to Public Services until further

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order and the said notification has come into force with immediate effect.

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Section 14 of the ARTPS Act has given overriding effect to the Act. As per the said Section, in relation to the notified services under the ARTPS Act and its implementation, the provisions of the ARTPS Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any instrument having effect by virtue of any law other than the said Act.

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The State Government has, in the meantime, in exercise of the powers conferred under Section 4 of the ARTPS Act, notified and brought a number of services under the purview of the ARTPS Act by a notification no. AR.69/2011/PtII/96 dated 10.04.2013. Amongst the services so notified and brought under the purview of the ARTPS Act includes ‘demarcation’.

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The Hon’ble Supreme Court of India in Whirpool Corporation v. Registrar of Trade Marks, Mumbai and others , reported in [1998] 8 SCC 1 , has further observed as under :-

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“14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.

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Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a direction to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three

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contingencies, namely, where the writ petition has been filed for the enforcement of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

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In the light of the above discussion as regards exercise of the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India, this Court on analysis of the provisions of the alternative statutory remedy available to the petitioner, is of the considered view that such remedy is an efficacious and adequate one. From the aforesaid discussions, it is also clear that the petitioner is having efficacious remedy under Sections 9(2)(a) and Section 8(3)(4) of the ARTPS Act. The petitioner is also having efficacious remedy against such alleged delay inasmuch as the appellate authority can even imposed penalty, if the public service is not provided within the time stipulated within the Act.

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In such view of the matter, this Court finds that this writ petition is not to be entertained as it is open to the petitioner to have recourse to the remedy under the ARTPS Act.

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Accordingly, this writ petition same stands closed with a liberty to the petitioner to approach the appropriate authority under the Act, 2012.

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JUDGE

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Comparing Assistant

Baksa Sheikh v. the State of Assam and 4 Ors.

Case brief

What is this about?

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Baksa Sheikh v. the State of Assam and 4 Ors.

Case brief

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What the court decided

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