Page No.# 1/14 GAHC010196042025 2025:GAU-AS:12939 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5217/2025 RAJIB SIKDAR AND 3 ORS. S/O- ALAL UDDIN, RESIDENT OF JOTIGAON, P.O- JAHURPAM, P.S AND DIST- BARPETA, ASSAM, PIN-781314. 2: MOHD ROSTOM ALI SON OF HAZARAT ALI R/O KAHIBARI PAM P.O.-MANIKPUR P.S.-BAGHBAR DIST- BARPETA ASSAM PIN-781308 3: MIJANUR RAHMAN S/O- LATE ASMAT ALI RESIDENT OF VILL- BAGULAMARI P.S- KALGACHIA DIST- BARPETA ASSAM PIN-781319. 4: GOLAM MOSTOFA S/O- LATE ASMAT ALI RESIDENT OF VILL- BAGULAMARI P.S- KALGACHIA DIST- BARPETA ASSAM PIN-781319 VERSUS THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF REVENUE AND DISASTER MANAGEMENT, Page No.# 2/14 DISPUR, GUWAHATI-6 2:THE INSPECTOR GENERAL OF REGISTRATION OFFICE OF THE DIRECTOR OF LAND RECORDS RUPNAGAR GUWAHATI-32 3:THE DISTRICT COMMISSIONER (LAND AND REVENUE BRANCH) CUM- REGISTRAR BARPETA P.O AND DIST-BARPETA PIN- 01. 4:THE SUB REGISTRAR CUM ADDL. DISTRICT COMMISSIONER BARPETA P.O AND DIST- BARPETA PIN-01 Advocate for the Petitioner : MR. M U MAHMUD, MR S ISLAM,MR. R ISLAM,MR S H MAHMUD Advocate for the Respondent : SC, REVENUE, GA, ASSAM BEFORE THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioners : Mr. MU Mahmud, Advocate. For the respondents : Ms. M Barman, GA, Assam Ms. G Hazarika, SC Revenue Date of hearing : 19.09.2025 Date of Judgment : 19.09.2025 JUDGMENT & ORDER (ORAL) 1. Heard Mr. MU Mahmud, learned counsel for the petitioners and Page No.# 3/14 Ms. M Barman, learned Government Advocate, Assam. 2. Issue notice, returnable forthwith. Ms. M Barman, learned State counsel, accepts notices on behalf of respondent No. 4 and Ms. G Hazarika, learned standing counsel for the Revenue & Disaster Management Department, accepts notice on behalf of respondent Nos. 1, 2, and 3. 3. In this writ petition instituted under Article 226 of the Constitution of India, the petitioners have projected that they are joint pattadars and owners of a plot of land, measuring 2 Kathas, 10 Lechas covered by Dag no. 628 & K.P. Patta no. 517, situated at Village – Jotigaon, Mouza – Barpeta, Barpeta Revenue Circle, District - Barpeta (‘the subject-plot, for short). Due to an urgent requirement for money for brother's heart surgery, the petitioners offered to sell 1 Katha, 5 Lechas of land, out of the said 2 Kathas, 10 Lechas of land to the intended buyers i.e. the petitioner Nos. 3 and 4. 4. The petitioners have stated that after executing an agreement for the sale of the subject plot with the intended purchasers, the petitioners applied for a No Objection Certificate (NOC) for Sale/Transfer of Land before the jurisdictional Development Authority. The petitioners have been issued a No Objection Certificate (NOC) for the Sale/Transfer of the subject plot of land by the Barpeta Development Authority, constituted under the Assam Town and Country Planning Act, 1959, on 06.08.2024. The petitioners have stated that, as they were also required to get a Sale Permission/ No Objection Certificate (NOC) to sell the subject plot from the jurisdictional District Commissioner and, accordingly, they had also applied for Sale Permission/NOC before the respondent no. 3 by following Page No.# 4/14 all the requisite formalities. After processing the application, on 11.07.2024, the respondent no.3 issued a NOC for the transfer of the subject plot by way of sale, etc., to the petitioners in respect of the subject plot. 5. After getting permissions from the Barpeta Development Authority and the respondent no. 3, on 08.10.2024, the petitioners applied for deed registration, which was duly acknowledged vide Acknowledgement No. 20240002998992. But the respondent No. 3 and the respondent No. 4 have not yet disposed of the application of the petitioners. Accordingly, the petitioners have filed the instant writ petition. 6. Mr. Mahmud, learned counsel for the petitioners, has submitted that the petitioners have submitted all the supporting documents in support of their application for registration of the Sale Deed. Despite the submission of all the supporting documents, respondents no. 3, and 4 have not yet disposed of the application of the petitioners. 7. Ms. Barman, learned Government Advocate, Assam, appearing for the respondents, has submitted that there are valid reasons for not registering the Sale Deed of the petitioners by the respondent no. 3 and the respondent no. 4. She has submitted that by Office Memorandums, dated 06.09.2024 & dated 20.01.2025, issued by the State Government in the Revenue & Disaster Management, certain restrictions have been put in place for the grant of sale permission, inter alia, in respect of lands falling in Barpeta Town of Barpeta district. It is in view of such restrictions that the Sale Deed submitted by the petitioners has not been registered. Ms. Barman, has further submitted that by another Office Memorandum dated 12.05.2025, the restrictions placed earlier in respect of the grant of sale Page No.# 5/14 permission in respect of lands falling in Barpeta Town of Barpeta district, have been extended for a further period of forty-five days. She has submitted that such restrictions have been placed in view of the amendments passed by the Assam Legislative Assembly to insert Chapter XII in the Assam Land and Revenue Regulation, 1886. It is submitted by Ms. Barman that because of the reasons recorded in the aforesaid Office Memorandums, the application submitted for registration of the Sale Deed in respect of the subject plot falling within the areas covered by the Office Memorandums has not yet been disposed of. 8. I have considered the submissions of the learned counsel for the parties and have also gone through the materials brought on record. 9. The Registration Act, 1908 (hereinafter referred to as the Act, 1908), is a complete code governing compulsory and optional registration of documents. Section 17 of the Act’ 1908, makes registration of certain documents mandatory, which includes deed of transfer of property having a value of more than Rs. 100/- including the instruments of gift of immovable property, non-testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title and interest in immovable property of the value of Rs. 100/- and upwards, which includes a sale deed. 10. Section 18 permits registration of other documents at the option of parties. Section 32 prescribes who may present a document for registration, while Section 34 stipulates that parties to the document must appear before the registering officer within the specified time and admit to the execution. 11. Sections 35 to 41 empower the registering officer to hold a Page No.# 6/14 limited enquiry only for the purpose of satisfying himself about execution, identity of parties, attestation, and payment of proper stamp duty. Section 71 empowers refusal of registration, but such refusal must be confined to the ground exclusively contemplated under the Act. Section 71, being important, is reproduced herein below: “71. Reasons for refusal to register to be recorded. (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words registration refused on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.” 12. The 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 : Page No.# 7/14 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. 13. The central 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 NOC containing the description of such immovable property, to be transferred and also such other NOCs, 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. 14. In the proviso to Section 21A of the Registration (Assam Amendment) Act, 2009, it is provided that all such NOCs shall be issued within a period of thirty days from the date of receipt of application and in case NOC 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. Thus, it is apparent that the Legislative Scheme clearly circumscribes the jurisdiction of the registering authority, confining it only to procedural and statutory compliances without any adjudication upon the validity of the underlying transaction or consideration extraneous to the Act. 16. This Court is of the opinion that, significantly, nowhere in the Act of 1908, is there any provision that empowers the registering authority to Page No.# 8/14 refuse registration based on the Personal Law, religion, caste, creed, or community of either the transferor or the transferee. The grounds of refusal are exhaustively provided under the Act itself. These are limited to matters such as absence of proper execution, denial of execution by the party, failure of the party to appear, absence of attesting witnesses, where it is statutorily required or insufficiency of stamp duty and in the State of Assam, the requirement of NOC under Section 21A of the Registration (Assam Amendment) Act, 2009. 17. It is a well-settled principle of law that where the statute prescribes the manner of doing a thing, it must be done in that manner or not at all. It is well settled that the function of the registering authority is purely ministerial, not adjudicatory, and its power cannot extend beyond what the Act provides. At the same time, the refusal for registration must be tethered strictly to the statutory ground. 18. In the case in hand, the ground for non-registration is the office memorandum dated 20.01.2025 and the subsequent Office Memorandum dated 06.03.2025. 19. Upon reviewing the Office Memorandums dated 06.09.2024, 20.01.2025 & dated 06.03.2025, issued by the Revenue & Disaster Management Department, Government of Assam, it is noted that the Office Memorandums address the subject of “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 Page No.# 9/14 the measures mentioned therein was with regard to lands falling in Barpeta town in Barpeta District. It was noted 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. 20. 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. 21. It was further mentioned that the restriction would also be applicable during the interim period from October 22, 2024, to September 6, 2024. 22. 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 Memorandums, 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 Memorandums. 23. Section 21A of the Registration (Assam Amendment), Act, 2009 as applicable in the State of Assam is quoted above, speaks about issuance of NOC by the District Commissioner as a condition precedent for registration of any sale deed and also such other no objections, which are Page No.# 10/14 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. 24. The Office Memorandums, discussed above, speak about the non-issuance of Land Sale Permission and the non-processing of the mutation application. The Office Memorandums do not specifically mention any other kind of No-Objection Certificate. The Office Memorandums cannot be said to have a retrospective effect. The No Objection Certificate for the sale/transfer of the subject plot in the case in hand was granted on 11.07.2024, that is, earlier than the first of the Office Memorandum dated 06.09.2024. 25. Therefore, it is clear that the Executive Instruction dated 06.09.2024, dated 20.01.2025 and dated 06.03.2025 cannot be made applicable to the case of the petitioners, when admittedly the No Objection Certificate in terms of Section 21A of the Act, 2009, was granted in favour of the petitioners on 11.07.2024, before issuance of the Executive Instruction (supra). 26. It is also an admitted position that the petitioners’ document was otherwise in compliance with all requirements of the Registration Act, 1908 and the Indian Stamp Act. However, delay and refusal were based exclusively on the Executive Instruction (supra). Therefore, such a refusal cannot be sustained in law. It is well settled that Executive Instructions cannot override statutory provisions. Not to say that, in the present case, such Executive Instruction was not applicable even in a case where the No Objection Certificate was granted before the issuance of the Executive Page No.# 11/14 Instruction. Therefore, the No Objection Certificate of the petitioners shall relate to its date, and the delay at the hands of the registering authority cannot be a ground to compel the petitioner to obtain a fresh No Objection Certificate. Such action of the respondents is arbitrary, illegal and beyond the scope of the Registration Act. 27. Ms. Barman has contended that registration of sale deed is a “notified public service” under the Assam Right To Public Service Act, 2012 (hereinafter referred to as ARTPS Act, 2012) and therefore, when the petitioners are refused such public service within the stipulated period, the petitioners are having an alternative remedy under Section 8(1) of the ARTPS Act, 2012 and therefore, this court may not entertain the present application. Thus, she has raised an objection as to the maintainability of the writ petition having an alternative efficacious remedy. 28. It is by now, well settled that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision of the Constitution. It is equally well settled that under Article 226 of the Constitution of India, the High Court has the discretion to entertain or not to entertain a writ petition, having regard to the facts and circumstances of each case. 29. The availability of an alternative remedy is a self-imposed restriction, and normally, the High Court should not exercise its discretion under writ jurisdiction when an effective and efficacious remedy is available. However, such an alternative remedy shall not operate as a bar, where the writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the orders or proceedings are wholly without Page No.# 12/14 jurisdiction or the vires of an Act is challenged. 30. It is also well settled that the power under Article 226 of the Constitution of India to issue a writ can be exercised not only for the enforcement of the fundamental rights but also for any other purpose as well. 31. It is also by now, well settled that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution of India. This Rule of exercise of statutory remedy is a rule of policy and convenience, and it is discretionary. 32. In the considered opinion of this court, when there is no bar to admit the registration by virtue of the Executive Instructions (supra) and when it is an admitted position that the petitioners fulfilled such condition under Section 21A, the registering authority was not within its jurisdiction to refuse or delay to accept the registration, more particularly, for the reason that such registering authority must confine it only to the procedural and statutory compliance, which has been fulfilled in the present case. Thus, the action of the respondents in not admitting the registration is ex facie arbitrary, illegal and in excess of jurisdiction. 33. The appellate provision, upon which the respondents have relied, is under the ARTPS Act, 2012 and not under the Registration Act. Here, in this case, it cannot be said that the public service is refused; instead, Registration is not admitted, citing the existence of the Office Memorandums. The Appellate Authority, under the ARTPS Act 2012, is also not entrusted with the appellate power to determine a decision taken Page No.# 13/14 in exercise of the power of Registration Act, 1908, which is otherwise provided in the Registration Act, 1908 under Sections 72 and 73. 34. Now, let this court deal with the arguments of Ms. Barman that a Co-ordinate Bench in Habibar Rahman Vs State of Assam & Ors. in a similar circumstances, vide the order dated 24.03.2025 had relegated the petitioner therein to the Appellate Authority under ARTPS Act, 2012, for the reason that registration is notified as public service under the said Act’ 2012 and in the event of refusal or delay in delivering of public service, there is provision of appellate forum. 35. In the case at hand, the issue is whether a registering authority, while exercising its power under the Registration Act, 1908, can withhold registration due to the existence of the retrospective Office Memorandums (supra). This court has already answered the question in the foregoing paragraphs in negative, holding that such a power is not vested with the Registering authority and such action, therefore, is arbitrary and illegal. 36. Therefore, another issue that arises is whether refusal by a coordinate bench of this court to exercise its discretionary jurisdiction under Article 226 of the Constitution of India by relegating the party to avail a statutory appellate remedy under the ARTPS Act, 2012, can be treated as a binding precedent upon another Bench of co-equal strength. 37. It is well settled that a judgment is an authority for what it actually decides, and not for what logically follows from it. A decision declining to entertain a writ petition on the ground of the availability of an alternative remedy is essentially an exercise of judicial discretion in the facts of a particular case. Such an order does not lay down any proposition of law of general application. Page No.# 14/14 38. In Habibar Rahman (supra), the coordinate bench relegated the petitioner for having an efficacious alternative remedy under the ARTPS Act, 2012, since in the case, the grievance raised was that registration was kept pending. In the case in hand, Ms. Barman has produced an instruction which discloses the reason for refusal of registration, which this court held to be ex facie arbitrary, illegal and in excess of jurisdiction under the Registration Act, 1908. 39. Therefore, in the considered opinion of this court, the decision of the Coordinate Bench in Habibar Rahman (supra) not to exercise the discretion of writ jurisdiction is essentially a judicial discretion in the fact of the said case and does not lay down any proposition of any general application that in all cases of such nature, no writ petition shall be maintainable. Accordingly, the argument advanced by Ms. Barman is answered. 40. In the totality of the matter, the writ petition stands allowed with the direction to the registering authorities (respondent Nos. 3 and 4) to exercise its power under the Registration Act, 1908 by admitting the registration, if otherwise it satisfies the requirement of registration; however, without insisting on a fresh No Objection Certificate and/ or insisting upon the Executive Instruction (supra). Such exercise is to be carried out within 10 days from receipt of a certified copy of this order, to be furnished by the petitioners. 41. The instruction submitted by Ms. Barman, be kept on record. JUDGE Comparing Assistant