Page No.# 1/7 GAHC010228322018 2025:GAU-AS:6773 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7142/2018 SAJJAN AGARWALA (MODI) S/O LATE KAILASH PRASAD AGARWALLA (MODI) R/O DHOLLA BAZAR, P.O. SAIKHOWAGHAT, P.S. DHOLLA, DIST. TINSUKIA, STATE- ASSAM, PIN - 786125. VERSUS THE STATE OF ASSAM AND 6 ORS. REP. BY THE COMMISSIONER AND SECRETARY, (GOVT. OF ASSAM), DISPUR SECRETARIAT, GUWAHATI, ASSAM. 2:THE DEPUTY COMMISSIONER TINSUKIA DIST. TINSUKIA PIN - 786125 STATE- ASSAM. 3:THE ADDITIONAL COMMISISONEER (REVENUE BRANCH) DIST. TINSUKIA TINSUKIA PIN - 786125 STATE- ASSAM. 4:THE CIRCLE OFFICER DOOMDOOMA REVENUE CIRCLE TINSUKIA DIST. TINSUKIA PIN - 786125 STATE- ASSAM. Page No.# 2/7 5:SRI RAKESH KARWA S/O LT. RAMESWAR LAL KARWA R/O PRAKASH BAZAAR P.O. AN DP.S. TINSUKIA DIST. TINSUKIA PIN - 786125 STATE- ASSAM. 6:SRI MAHESH KARWA S/O LATE RAMESWAR LAL KARWA R/O PRAKASH BAZAAR P.O. AND P.S. TINSUKIA DIST. TINSUKIA PIN - 786125 STATE- ASSAM. 7:SMTI. GITA DEVI KARWAL W/O LATE RAMESWAR LAL KARWA R/O PRAKASH BAZAAR P.O. AND P.S. TINSUKIA DIST. TINSUKIA PIN - 78786125 STATE- ASSA Advocate for the Petitioner : MR. S CHAMARIA, MR. S CHANDAK,MR. M ALI Advocate for the Respondent : GA, ASSAM, SC, REVENUE,MR. P DEKA (R-5 TO 7 ),MD ASLAM (R-5 TO 7 ),MR G N SAHEWALLA (R-5 TO 7 ) BEFORE HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 27-05-2025 1. Heard Mr. S. Chamaria, learned counsel for the petitioner and Mr. A. Bhattacharya, learned Standing counsel, Revenue Department for the respondent Page No.# 3/7 No. 1. Also heard Mr. S.S. Roy, learned Government Advocate, Assam for the respondent Nos. 2 to 4 and Mr. G. N. Sahewalla, learned Senior counsel assisted by Ms. K. Bhattacharya, learned counsel for the private respondent Nos. 5 to 7. 2. The petitioner claims to be the lawful owner and possessor of land, measuring 1 Bigha 4 Kathas 7 Lechas under Dag No. 95(new), Patta No. 64(new). According to the petitioner, such land is adjacent to the plot of land, measuring 6 Bighas under Dag No. 8(new), Patta No. 88 (new), which belongs to the petitioner. 3. By an order dated 29.05.2014, passed by the Circle Officer Doomdooma Revenue Circle, in Misc Case No. 1/2012-13, the respondent Nos. 5 to 7 were granted mutation in respect of the land, measuring 2 Bihgas 3 Kathas 17.7 Lechas, covered by Dag No. 20(old)/8(new) and Dag No. 45(old)/88(new) of Village-Mirigaon, Mouza-Sadia (South Bank) by virtue of purchase and possession. 4. However, with a claim that the respondent Nos. 5 to 7 have been in possession of land, measuring 2 Bighas 3 Kathas 17Lechas, which falls not only under Dag No. 88(new) and some other Dag numbers, but, due to bonafide mistake and oversight, the mutation was granted only against Dag No. 88, excluding part of Dag No. 88, the respondent Nos. 5 to 7, filed an application before the Circle Officer, Doomdooma Revenue Circle, Doom-Dooma on 04.12.2017, with a prayer to pass necessary order for granting mutation of the land in accordance with the purchase and possession of the land under Dag No. 88 and some other Dag numbers “not specifically known to the petitioner”. On the basis of such application and after the enquiry, the impugned order dated 20.03.2018 was passed by the then Deputy Commissioner (now District Commissioner), Tinsukia. 5. From the aforesaid impugned order dated 20.03.2018, it is seen that the aforesaid order was passed on the basis of the earlier order dated 29.05.2014 passed in Misc Case No. 1/2012-13 by the Circle Officer, Doomdooma Revenue Page No.# 4/7 Circle as well as on the basis of the report of the concerned Lat Mondal and the relevant documents. 6. As per such report, the names of the respondent Nos. 5 to 7 had been included in Dag No. 95, Patta No. 64, though the said land was mutated in the name of the petitioner ‘Sajjan Agarwala’ but he had not maintained any possession over the same. 7. It is also seen that in the impugned order dated 20.03.2018, it was observed that the land ought to have been mutated in the names of the predecessors in interest of the respondent Nos. 5 to 7 and accordingly, it was directed for correction of the names and it was also directed to remand back the matter to the Doomdooma Revenue Circle forthwith. 8. In the aforesaid backdrop, Mr. Chamaria, learned counsel for the petitioner submits that, when admittedly the name of the petitioner was mutated against Dag No. 95, Patta No. 64, under the provisions of Rule 52 of the Assam Land and Revenue Regulation, 1886, a notice ought to have been issued to the petitioner inasmuch as the name of the petitioner from the revenue record had been directed to be deleted without hearing him. Therefore, on this count alone, the impugned order dated 20.03.2018, is liable to be set aside and the matter is required to be remanded back to the concerned Circle Officer, Doomdooma Revenue Circle, who had passed the earlier order of mutation dated 29.05.2014 in Misc Case No. 1/2012-13. 9. It is further contended by Mr. Chamaria, learned counsel for the petitioner that even otherwise, the Deputy/District Commissioner (Revenue), Tinsukia could not have modified the order dated 29.05.2014, if, it is treated to be an appeal against the said order, without issuing any notice to the petitioner. 10. Par Contra, Mr. Sahewalla, learned Senior counsel for the respondent Nos. 5 to 7, contends that the impugned order dated 20.03.2018 is appealable order before the Assam Board of Revenue under the provisions of Rule 147(A) of the Assam Page No.# 5/7 Land and Revenue Regulation, 1886 and therefore, this Court in exercise of its writ jurisdiction, may not entertain the present writ petition. 11. Mr. Sahewalla, learned Senior counsel for the respondent Nos. 5 to 7, further contends that even, if, this Court takes up the matter, it is clear that the order impugned is in continuation of the earlier order dated 29.05.2014 inasmuch as the order dated 29.05.2014 has not been challenged by the petitioner, therefore, this writ petition is liable to be dismissed. 12. I have given anxious considerations to the arguments advanced by the learned counsels for the parties. 13. It is not in dispute that the petitioner is not aggrieved by the earlier order dated 29.05.2014. It is also not in dispute that the aforesaid order dated 29.05.2014 was passed by the Circle Officer, Doomdooma Revenue Circle in Misc. Case No. 1/2012-13 and in the proceeding of said Misc. Case No. 1/2012-13, the petitioner herein was also a party and he had duly contested the aforesaid proceeding and the order remains un-assailed. However, from the impugned order, it is clear that, at the time of passing such order incorporating Dag No. 95, Patta No. 64 in favour of the respondent Nos. 5 to 7, the Deputy/District Commissioner (Revenue), Tinsukia was aware that the name of the present petitioner had already been recorded against the aforesaid Dag and Patta numbers. 14. In view of the aforesaid, this Court is in total agreement with the arguments of Mr. Chamaria, learned counsel for the petitioner that notice was required to be served upon the petitioner inasmuch as by the impugned order dated 20.03.2018, admittedly, the name of the petitioner recorded against Dag and Patta numbers was directed to be corrected primarily on the ground that the petitioner had not maintained the possession over the said land. 15. In the considered opinion of this Court, such course of action is not permissible, not only under the Assam Land and Revenue Regulation, 1886, more Page No.# 6/7 particularly, in view of the mandate of Rule 52 of the Assam Land and Revenue Regulation, 1886 but for adherence of principle of natural justice, which demands that reasonable opportunity ought to have been given to the petitioner before passing the impugned order, whereby, already recorded name of the petitioner against Dag No. 95 under Patta No. 64 was directed to be deleted. The principle of natural justice demands that the Adjudicating Authority must disclose all the materials placed before it and must give reasonable opportunity to the affected persons to submit his/their cases. In the case in hand, admittedly, the decision was taken based on the enquiry report. However, no opportunity was given to the petitioner either to respond to the findings of such enquiry report or to file objection for deletion of his name. 16. Now coming to the availability of an alternative remedy, this Court cannot remain oblivious to the fact that the original order dated 29.05.2014 was passed by the Circle Officer, Doomdooma Revenue Circle and the correction was made by the Additional Deputy Commissioner (Revenue), Tinsukia in the name of the Deputy Commissioner(Revenue), Tinsukia under the provisions of the Assam Land and Revenue Regulation, 1886. The Deputy/District Commissioner (Revenue) is the appellate authority against an order of the Circle Officer. If that be so, and if the application of the respondent Nos. 5 to 7 filed before the Deputy/District Commissioner, Tinsukia is treated to be an Appeal under the Assam Land and Revenue Regulation 1886, then also, the competent adjudicating authority is mandatorily required to issue notice, more particularly, in view of the report, which indicates that the name of the petitioner had already been recorded against the land covered by Dag No. 95, Patta No. 64. 17. It is by now well settled that power to issue prerogative writ under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provisions of the Constitution of India. It is equally well settled that under Article 226 of the Constitution of India, the High Court, is having discretion to entertain or not to entertain a writ petition having regard to the facts and circumstances of Page No.# 7/7 each case. The availability of an alternative remedy is self-imposed restriction and normally, the High Court should not exercise its discretion under the writ jurisdiction, when an effective and efficacious alternative remedy is available. However, such alternative remedy shall not be barred, when writ petition is filed for enforcement of any of the fundamental right or where there has been violation of the principle of natural justice or where the orders or proceedings are wholly without jurisdiction or vires of an Act is challenged. 18. In view of the settled proposition of law, more particularly, in the given facts of the present case and the determination made hereinabove that the principle of natural justice has been violated while passing the impugned order dated 20.03.2018, the plea of alternative remedy of appeal raised by Mr. Sahewalla, learned Senior counsel for the respondent Nos. 5 to 7 stands negated. 19. Accordingly, for the reasons recorded hereinabove, the present writ petition stands allowed by setting aside the impugned order dated 20.03.2018 and the matter is relegated to the Circle Officer, Doomdooma Revenue Circle to decide the application dated 04.12.2017 afresh filed by the respondent Nos. 5 to 7before the said Circle Officer. The parties shall appear before the Circle Officer, Doomdoma Revenue Circle on 23.06.2025 and thereafter, the aforesaid Circle Officer shall proceed with the matter in accordance with law after giving due opportunity to the parties. 20. With the aforesaid observations and directions, this writ petition stands disposed of. JUDGE Comparing Assistant