Point of Law: Section 40 of the Assam Land and Revenue Regulation, 1886 provides for framing of records of right for estates.

JUDGMENT :

1. The present writ petition is preferred by the Chairman, Kamakhya Debutter Board, Kamakhya Hill, Guwahati and by the Deity of Goddess, Sri Sri Kamakhya, represented by the Board of Trustees, Kamakhya Debutter Kamakhya Hill, Guwahati for a declaration that the resettlement operation carried out in Kamakhya Hills and Nilachal Hills on the basis of “Original Jamabandi” (a jamabandi of Kamakhya village of the Nilachal Hill alleged to be prepared in the year 1973) and “Duplicate Register” is null and void for the reason of non demarcation of the retainable areas of land by the deity of Sri Sri Maa Kamakhya under the Assam State Acquisition of Lands Belonging to Religious and Charitable Institutions of Public Nature Act, 1959 (hereinafter referred to as Act, 1959).

2. The matter was extensively argued by Mr. J. Deka, learned counsel on behalf of the petitioner No. 1 on more than three dates and was at stage of concluding his argument. However, on 17.08.2022, it was submitted that Mr. N. N. Jha, learned counsel was engaged by the petitioner No. 1 to argue the matter in place of Mr. J. Deka, learned counsel and in that view, this Court requested Mr. J. Deka, learned counsel to assist the court by concluding his argument and also heard Mr. N. N. Jha, learned counsel on behalf of the petitioner No. 1 on 30.08.2022. This Court also heard Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. P. Bhardwaj, learned counsel for the petitioner No. 2, the Deity and Mr. D. Mazumdar, learned Additional Advocate General for the State of Assam. Also heard Mr. P. S. Deka, learned Senior Counsel as Amicus Curie.

3. Though no specific prayer assailing the acquisition of the land belonging to the deity under the Act, 1959 is made in the present writ petition, however, the challenge to the resettlement operation, preparation of Jamabandi and records of rights are being made on the ground that while acquiring the land of the deity, the procedure required to be followed under the Act, 1959 and Rules made thereunder were not followed. In fact, Mr. J. Deka, learned counsel extensively argued on the alleged procedural violation, while acquiring the land by the State under the Act, 1959. In the aforesaid backdrop of pleading and argument, this Court proposes to first highlight on the procedure of acquisition of the land under the Act, 1959 and then shall proceed to the facts of the Case.

4. Scheme of the Act, 1959:

(I) The statement and object and the reason of the Act, 1959 reflects that the same is enacted to acquire lands belonging to Religious and Charitable Institutions of Public Nature in order to give a better status to the actual occupants and to settle the un-occupied lands with landless people by permitting such Institutions to retain some lands.

(II) Section 3(1) of the Act, 1959 empowers the State Government to declare by Notification in the official Gazette that all rights in land belonging to a Religious or Charitable Institution of Public Nature shall vest in the State free from all encumbrances with effect from the first day of the agricultural year next following the date of publication of such notification. A copy of such notification is mandated to be served on the Head of the Religious or Charitable Institution in the manner it is prescribed.

(III) Section 3(3) of the Act, 1959 takes a presumption that when a notification is published in the official Gazette and the copy is served upon the Head of the Institutions, the same should be a conclusive evidence of publication and of notice to all persons affected by such notification.

(IV) Section 5 of the Act, 1959 provides that the Institution shall be entitled to retain possession of certain lands namely, lands which were occupied by the Institution by constructing buildings and raising orchards and flower gardens together with the compounds appurtenant thereto and all lands reserved for the resident devotees for residential purpose. Last date of such possession is determined to be