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2007 DIGILAW 220 (CAL)

SHAMBHUNATH SAMAL v. TEHSILDAR, PORT BLAIR

2007-03-26

SANJIB BANERJEE

body2007
( 1 ) THE matters in issue in these proceedings have to be kept confined to the petitioner's immediate cause for approaching this Court, in view of the myriad connected litigations pending or said to be pending. The writ petitioner makes himself out to be a David fighting the Goliath of combined strength of state might and a corporate juggernaut. ( 2 ) THE petitioner claims to be entitled to a piece of land measuring about 400 sq. m. having encroached upon government land shortly upon his arrival in these islands some time in the early 1970s. He claims to be entitled to the benefit under a scheme by which pre-1978 encroachers were permitted to enjoy possession of the land as tenants under the Administration. His fervent pleas for the regularization of his occupation of such land under the scheme, he says, have not been addressed or even looked into as the Administration, unmindful of his existence, had allotted a chunk of land, including the area under his occupation, to the fourth respondent to set up a hotel by the turquoise waters of the Andaman Sea. ( 3 ) THE fourth respondent, the principle contestant, is part of a corporate behemoth. The hotel has been set up. But the petitioner's humble lodgings remain an eyesore. According to the fourth respondent, the petitioner came upon the land that he now claims as his own after the Administration granted license in respect of the much larger area in favour of the fourth respondent. The fourth respondent claims that the petitioner was engaged as a contractor by the hotelier and encroached upon the land in such capacity. An encroacher as the petitioner could not claim the benefit of the scheme which, in any event, was of limited duration and had run its course, according to the fourth respondent. The hotelier complained that the petitioner, with his litigating resourcefulness, has warded off eviction for more than two decades and the court ought not to entertain the pretended grievance. The fourth respondent: suggests that the indulgence shown to the petitioner has caused it injustice. The hotelier complained that the petitioner, with his litigating resourcefulness, has warded off eviction for more than two decades and the court ought not to entertain the pretended grievance. The fourth respondent: suggests that the indulgence shown to the petitioner has caused it injustice. The present proceedings, the fourth respondent complains, is the latest in a series of frivolous litigations resorted to by the petitioner and ought to have been nipped in the bud, ( 4 ) THE petitioner asserts, on the strength of a writing of November, 1974, said to be an eviction notice issued by the Tehsildar, South Andaman, that he was in occupation of the land that he continues to hold on to, prior to 1978. The existence of such notice and the veracity thereof have been questioned and, like other matters referred to hereinafter, these questions have also to be left unanswered in determining the present case. In any event, questions as to existence or veracity of documents can scarcely be entertained or authoritatively pronounced upon in such proceedings of summary nature. ( 5 ) THE petitioner claims that it was only in 1990 that the petitioner had any inkling of something amiss about his right to remain in the land that he had encroached upon, following receipt of a notice quoting an order of October 17, 1986 issued by the Tehsildar, Port Blair. That order of October 17, 1986 recorded that the petitioner was a recent encroacher and had only lately started to construct a temporary structure on what was described to be 50 sq. m area out of Survey No. 96 at the Phoenix Bay area. The order was under Regulation 202 of the Andaman and Nicobar Islands Land Revenue and Land Reforms regulation, 1966 (hereinafter referred to as "the said Regulations" ). ( 6 ) SUCH order, claims the petitioner, was not acted upon immediately nor was he informed of it within any reasonable time or heard prior to the same being made. He received a subsequent notice of June 17, 1988 requiring him to attend a hearing in R. C. No. 139/86 fixed on June 27, 1988. The petitioner still insists that he was not informed of his imminent eviction and it was much later that he came to be aware of the order of October 17, 1986. He received a subsequent notice of June 17, 1988 requiring him to attend a hearing in R. C. No. 139/86 fixed on June 27, 1988. The petitioner still insists that he was not informed of his imminent eviction and it was much later that he came to be aware of the order of October 17, 1986. Whatever the truth, such matter need not be gone into in the context of the limited scope within which the petitioner's grievance has to be restricted in these proceedings. ( 7 ) BY the time the notice of June 1988 was issued to the petitioner, the scheme for regularization of occupation in respect of encroachment prior to 1978, had come into effect. In response to the notice of June 1988, the petitioner called upon the Tehsildar to regularize his occupation in pursuance of the said scheme. The petitioner relies upon receipts of March 2, 1988 and march 21, 1988 issued by the authorities upon his successive applications for regularization of his occupation of the land in question. Even before his application (or applications) claiming benefit under the said scheme came to be considered, according to the petitioner, he received an order of June 21, 1990 issued by the Tehsildar fixing July 31, as the date for the execution of the eviction order of October, 17, 1986. ( 8 ) THE petitioner filed an application before this Court under Article 226 of the Constitution, which was ultimately dismissed on September 19, 1995. The order, however contained the following observations : "miss Ganguly, learned Counsel appearing on behalf of the petitioner submitted that in view of the letter dated 13th April, 1987, as contained in Annexure 'c' to the writ application, the order of eviction must be held to be wholly illegal. However, the said order of eviction dated 17. 10. 86 had not been questioned before any competent Court. By reason of the impugned order, merely the order of eviction is sought to be executed. Unless the said order of eviction is set aside, the same is binding and executable. Such a power of execution, it is not disputed vests in the tehsildar under Section 202 of the Andaman and Nicobar Islands Land revenue and Land Reforms Regulation, 1966. No case, therefore, has been made out for setting aside the impugned order. Unless the said order of eviction is set aside, the same is binding and executable. Such a power of execution, it is not disputed vests in the tehsildar under Section 202 of the Andaman and Nicobar Islands Land revenue and Land Reforms Regulation, 1966. No case, therefore, has been made out for setting aside the impugned order. However, Miss ganguly stated that in terms of sub-regulation 6 of Section 202 the petitioner has already filed a representation. It would be for the appropriate authority to consider the same'in accordance with law", ( 9 ) AN appeal was carried by petitioner from the order of dismissal of september 19,1995. Before the appellate Court it was urged on behalf of the petitioner that the order of October 17, 1986 has not been'contemporaneously supplied to the petitioner. In such circumstances, and without going into the issue as to whether a copy of the order of October 17, 1986 was served on the petitioner, the appellate Court permitted the petitioner to making an application under Section 5 of the Limitation Act in connection with an appeal that may be preferred. The appellate Court order was challenged by way of a special leave petition before the Supreme Court, which the petitioner withdrew on April 3, 1996. ( 10 ) THE Tehsildar made an order on December 24, 1996 fixing december 30 as the date for executing the eviction order passed earlier in r. C. No 139/86. The petitioner preferred an appeal before the Sub-Divisional officer which was rejected on April 24, 2000 upon the appellate authority recording that the despite opportunity having being given to the petitioner herein, he could not produce any documentary evidence to substantiate his claim that he was entitled to remain in possession of such land. The petitioner preferred a second appeal under Regulation 28 (2) of the said Regulations before the lieutenant Governor. It is undisputed that the "chief Commissioner" referred to in the said Regulations is now the Lieutenant Governor. The petitioner complains that such second appeal has not been disposed of despite several reminders, but the fate of such second appeal appears to be a foregone conclusion in view of the letter of January 20, 2006 issued by the Assistant commissioner that the said scheme had been closed. The petitioner complains that such second appeal has not been disposed of despite several reminders, but the fate of such second appeal appears to be a foregone conclusion in view of the letter of January 20, 2006 issued by the Assistant commissioner that the said scheme had been closed. Such letter was issued by the Assistant Commissioner in the context of a complaint made by the petitioner to the Prime Minister and a reference of the complaint by the Prime minister's Office to the Assistant Commissioner. ( 11 ) THE petitioner has instituted a suit in exercise of what he claims to be his right under Regulation 202 (7) of the said Regulations. The defendants in such suit, being some of the respondents herein, have notice of such suit. The fourth respondent herein has, instead of filing its written statement, preferred a demurrer application. The petitioner asserts that upon a suit founded on Regulation 202 (7) of the said Regulations being instituted, the Tehsildar is precluded from carrying out the order which has been made the subject matter of the suit. The petitioner contends that such right is enjoyed by a plaintiff under Regulation 202 (8 ). ( 12 ) THE petitioner's immediate cause for instituting the present proceedings is what according to the petitioner is the high handed conduct of the Tehsildar in passing an order on August 26, 2006 and in proceeding to implement such order notwithstanding the embargo imposed thereon by a superior forum. It is only the second limb of the petitioner's immediate grievance to which this writ petition has to be confined. In the petition, it is alleged that the Tehsildar acted beyond jurisdiction and showed undue Courtesy to the fourth respondent, which is part of a giant conglomerate. It is complained that despite the representation made by the petitioner to the Tehsildar shortly upon receipt of the order dated August 26, 2006 and notwithstanding an order made by the Sub-Divisional Officer in an appeal carried from the order passed by the Tehsildar on August 26, 2006, the Tehsildar ensured that process of evicting the petitioner was substantially carried out. This is complained of as being arbitrary and an act of insubordination. This is complained of as being arbitrary and an act of insubordination. ( 13 ) UPON the uncontroverted allegations at the ad-interim stage, an order came to be made on September 6, 2006 in terms of prayer (G) of the petition that, in effect, required the petitioner to remain in possession of the land and for electricity and water connection to be restored thereat. This interlocutory order was modified on September 13, 2006 in the fourth respondent's appeal therefrom by directing status quo as regards the nature and character of the property to be maintained. The appeal was subsequently disposed of on such basis. ( 14 ) THE petitioner has questioned the treatment meted out to the petitioner and, in particular, the conduct of the Tehsildar. It is submitted that on a Writ petition filed by the fourth respondent urging this Court to encourage the Tehsildar to execute the outstanding order of eviction, the only order that was passed therein was a direction on the Tehsildar to dispose of the proceedings before him in accordance with law and after hearing the parties concerned. It is urged by the petitioner that the Tehsildar exceeded his brief and construed the order passed on the fourth respondent's writ petition to be a charter to him to forthwith evict the petitioner. ( 15 ) THE fourth respondent disputes such contention and by relying on the order of August 26, 2006 seeks to demonstrate that the Tehsildar acted in accordance with law and upon hearing the petitioner. There is nothing, according to the fourth, respondent, to suggest that the Tehsildar merely proceeded to implement the order of eviction. ( 16 ) BUT it is not necessary to go into such contention in the light of the order that is proposed. ( 17 ) A subsequent event has been brought on record by the petitioner. That subsequent event is the order of October 4, 2006 passed by the Sub- divisional Officer disposing of the petitioner's appeal from the Tehsildar's order of August 26, 2006. It is necessary, in the context, that such order be noticed. The Sub Divisional Officer has not decided the appeal, but merely on the ground of the pendency of these proceedings, has vacated his order of August, 30, 2006 and required the order subsisting in the present proceedings to be obeyed by the parties. It is necessary, in the context, that such order be noticed. The Sub Divisional Officer has not decided the appeal, but merely on the ground of the pendency of these proceedings, has vacated his order of August, 30, 2006 and required the order subsisting in the present proceedings to be obeyed by the parties. The only point that the Sub-Divisional Officer has decided is the fourth respondent's contention that the appeal before him was not maintainable. He found such plea to be unmeritorious. ( 18 ) THE fourth respondent has attacked the petition in its head, body and tail. According to it, the Union of India is a necessary party and has not been impleaded ; the averments are half-truths and make out no grounds for exercise of any discretion ; and, the prayers cannot be countenanced. ( 19 ) THE fourth respondent has even contested the scope of the writ petition being confined to the alleged act of insubordination of the Tehsildar in the face of the Sub-Divisional Officer's order of August 30, 2006. It is submitted on behalf of the fourth respondent that the order of the Sub Divisional Officer was wholly without jurisdiction and as such it can be brushed aside and ignored. It was submitted that an appeal is a creature of statute and the order of August 26, 2006 was not appealable under Regulation 28 (1) of the said Regulations. ( 20 ) THE relevant part of Regulation 28 (1) provides that "an appeal shall lie from every original order passed under this Regulation or the rules made thereunder. . . if such order is passed by any revenue officer subordinate to the sub Divisional Officer. . . to the Sub Divisional Officer". It is not in dispute that the Tehsildar is a revenue officer as Regulation 3 (f) records him as such. What is urged by the fourth respondent is that the order of August, 26 2006 was not an "original order". Learned Counsel for the fourth respondent argues that it is the first order of October 17, 1986 passed in the eviction proceedings, which is the "original order". He submits that order of August 26, 2006 was in continuation of the order of 1986 and no appeal lay therefrom. Learned Counsel for the fourth respondent argues that it is the first order of October 17, 1986 passed in the eviction proceedings, which is the "original order". He submits that order of August 26, 2006 was in continuation of the order of 1986 and no appeal lay therefrom. ( 21 ) IT is necessary that just this question, and none other beyond the limited scope to which this petition is confined, be decided ; as the alleged act of insubordination cannot be an act complained of if the order of August 30, 2006 passed by the Sub-Divisional Officer was without jurisdiction. The expression "original order" in the context implies an order which is not an appellate order. The word "original" in that expression is not to be read as first; "original" needs to be juxtaposed against "appellate". That a second appeal would lie from an appellate order passed under Regulation 28 (1), is also recognized by Regulation 28 (2 ). The contention of the fourth respondent that the Sub-Divisional Officer lacked inherent jurisdiction to pass the order of august 30, 2006 is negated. ( 22 ) THE fourth respondent has cited the decision reported at (2006)5 scc 330 for the proposition that an order passed without jurisdiction is void and does not require any proceedings to be instituted for it to be annulled. In the light of it having been found that the order of the Tehsildar made on August 26, 2006 was an "original order" within the meaning of Regulation 28 (1), such proposition does not come into play. The fourth respondent has also relied upon the judgments reported at AIR 1977 SC 1701 , (1977)4 SCC 467 and ILR (2000)1 Calcutta 231. The first of the three has been placed to suggest that in the absence of the Union of India being impleaded despite objection having been taken in the affidavit-in-opposition, the petition was liable to be dismissed. The second was cited to remind the Court that power inheres in every Court of record to nip frivolous litigations in the bud so as to discourage multifariousness. The third was pressed into service in support of the proposition that an encroacher had no right to seek his act of trespass being blessed by Court. ( 23 ) IN the present case there is no need to go into the petitioner's title as to the land in question. The third was pressed into service in support of the proposition that an encroacher had no right to seek his act of trespass being blessed by Court. ( 23 ) IN the present case there is no need to go into the petitioner's title as to the land in question. That can await the decisions in the other proceedings pending or said to be pending. This writ petition has been received as a grievance against the Tehsildar, inarguably an authority within meaning of article 12 of the Constitution, for transgressing the bounds of his authority in implementing his order of August 26, 2006 despite such order being stayed by a superior forum. In such context, the writ was and continuous to be maintainable as against the Tehsildar. ( 24 ) THE oft-noticed judgment of the Supreme Court reported at (1977)4 scc 467 is inapposite in the context of the limited scope of the present proceedings. That the Tehsildar had acted in derogation of an order passed by a superior in appeal from his order, was not the subject matter of previous proceedings. There is no multifariousness that has been indulged in by the petitioner that requires the Court to come down with a heavy hand and, in any event, the petition has progressed to a stage beyond the bud and though it may wither away in full bloom, it can no longer be nipped in the bud. ( 25 ) THE last of the decisions relied upon by the fourth respondent need not detain the matter for the same reason that the petitioner's title, whether as encroacher or not, is not required to be decided here; his grievance that the sub-Divisional Officer's order was flouted, is required to be. ( 26 ) EQUALLY, it is not necessary to pronounce upon the rival contentions as to the effect of Regulation 202 (8 ). The fourth respondent's contention is that the petitioner's suit has no effect on the Tehsildar's powers to execute his order of eviction as there is nothing on record to demonstrate that the petitioner gave the Tehsildar any notice of his intention to institute a suit. In the absence of such notice, according to the fourth respondent, the embargo on the Tehsildar to implement the order as envisaged in Regulation 202 (8), would not come into operation. In the absence of such notice, according to the fourth respondent, the embargo on the Tehsildar to implement the order as envisaged in Regulation 202 (8), would not come into operation. The petitioner refutes such contention and submits that inasmuch as the suit was instituted upon obtaining an order of dispensation of the notice required under Section 80 of the Code of Civil Procedure, 1908, the in-built stay as contemplated under Regulation 202 (8) would operate from the time of institution of the suit. However tempting it may be to adjudicate such issue in one sentence, it is undesirable to usurp such jurisdiction, particularly in the light of limited scope to which this petition has been confined. ( 27 ) IT is, however, the order of the Sub-Divisional Officer of October 4, 2006 that, despite being made subsequent to the institution of these proceedings, needs to be set aside. In passing such order, the Sub-Divisional officer betrayed a sentiment that is now commonplace : since proceedings were pending in the High Court, never mind its scope, the Sub-Divisional Officer has washed his hands off without adjudicating upon the merits of the appeal save repelling the fourth respondent's contention as to the maintainability of the appeal. The Sub-Divisional Officer failed to see that this writ petition, in a sense, was in aid of the matter pending before him. The scope of this petition is much narrower than the scope of the proceedings that were then pending before him. The order of the Sub-Divisional Officer of October 4, 2006 is set aside. The Sub-Divisional Officer will hear the appeal afresh after affording both the petitioner and the fourth respondent, among others, an opportunity of being heard. The order passed on September 6, 2006 as modified and continued by the appellate Court order of September 13, 2006 will remain operative till the appeal is taken up afresh and disposed of by the Sub-Divisional Officer. ( 28 ) IT needs to be recorded that the Administration has not taken any sides in the matter but learned Counsel has merely pointed out the affidavit filed on behalf of the respondent authorities that there was no act of insubordination by the Tehsildar and that immediately upon the Tehsildar being made aware of the order of August 30, 2006, the process of eviction was stopped. ( 29 ) IT is unnecessary to enter into any controversy as to whether the conduct of the Tehsildar was in contumacious disregard of an order passed by the superior forum. That an order of stay was made by the superior forum, is enough to render all steps taken in pursuance of the order stayed, bad ; irrespective of whether the inferior forum or the agency implementing the order stayed, had notice of the order of stay. An order which is stayed, can no longer be implemented beginning the moment the stay is pronounced. The person entitled to the benefit of the stay has a right to complain of the order stayed being given effect to, irrespective of whether it is done despite knowledge. If the implementation of the stayed order is with knowledge of the stay, it would be contumacious and has to be dealt with heavily to ensure discipline and the primacy of judicial or quasi-judicial hierarchy. On the basis of the petitioner's complaint that the order of the Sub-Divisional Officer passed on August 30, 2006 staying the Tehsildar's order of August 26, 2006 was breached, he was entitled to maintain the petition without being required to conclusively establish that the Tehsildar's act of implementing the order stayed was with full knowledge of the stay. ( 30 ) SAVE to the extent of the objection as to the maintainability of the appeal before the Sub-Divisional Officer taken by the fourth respondent, no other matter has been decided. The parties may take such steps as they may be advised for protection of their rights and this order should not be construed to preclude any party from pursuing any matter that it may be entitled to in accordance with law. ( 31 ) THE writ petition is disposed of on the above basis without any order as to costs.