Dismissed

Kamal Kumar Deka v. the State of Assam and 5 Ors.

Gauhati HC10 Mar 2025WP(C)/699/2025

Case brief

AI extract

What is this about?

Petitioner complained that boundary demarcation of his land was done improperly under the Assam Land and Revenue Regulation, 1886. The court found an efficacious statutory remedy under the Assam Right to Public Services Act, 2012, including appeals and penalty provisions, declined to entertain the writ petition and closed it with liberty to use the statutory route.

What the court decided

AI extract

Kamal Kumar Deka Vs the State of Assam and 5 Ors. — Property and Title | Gauhati HC (2025)

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GAHC010023222025

2025:GAU-AS:2547

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

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Case No. : WP(C)/699/2025

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KAMAL KUMAR DEKA

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SON OF LATE DHARANIDHAR DEKA, VILL RANGIA TOWN, WARD NO.3, OPPOSTTE SIDE OF SBI BANK, P.O. AND P.S. RANGLA, DIST KAMRUP, PIN 781354.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOW. OF ASSAM, REVENUE DEPARTMENT, DISPUR, GUWAHATI-781006, ASSAM

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2:THE DISTRICT COMMISSIONER KAMRUP RANGIA DIST.- KAMRUP ASSAM.

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3:THE ADDL DEPUTY COMMISSIONER I/C SUB DIVISIONAL OFFICER CIVIL RANGIA DISTRICT KAMRUP

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4:THE CIRLCE OFFICER RANGIA REVENUE CIRCLE RANGIA DIST KAMRUP ASSAM

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5:THE LAT MANDAL

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RANGIA REVENUE CIRCLE RANGIA

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DISTRICT- KAMRUP

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6:DILIP KUMAR CHOUDHURY S/O LATE NIKUNJA CHOUDHURY VIL RANGIA TOWN WARD NO.3 P.O. AND P.S. RANGIA DISTRICT KAMRUP ASSAM PIN 781354

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Advocate for the Petitioner : MS. R CHOUDHURY, MD. MEMON AHMED,MS. B. HAZARIKA

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

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY O R D E R

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11.03.2025

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Heard Ms. R Choudhury, learned counsel for the petitioner. Also heard Ms. S Baruah, learned State counsel and Ms. G Hazarika, learned standing counsel for the Revenue Department.

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The grievance of the petitioner is that the petitioner filed an application for boundary demarcation with the respondent No. 6. It is her grievance that though the concerned authorities did the measurement of the land, but it was not done properly by observing the provision of Assam Land and Revenue Regulation, 1886. It is the further case of the petitioner that though the petitioner has again approached the authorities for boundary demarcation properly by filing representation, but same ended with no result.

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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

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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 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

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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 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/Pt-II/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 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 for such delay alleged 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 court is not inclined to entertain this writ petition and 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

Kamal Kumar Deka v. the State of Assam and 5 Ors.

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Kamal Kumar Deka v. the State of Assam and 5 Ors.

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