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2007 DIGILAW 506 (CAL)

Bay Islands Hotel Ltd v. Tahasildar

2007-07-09

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2007
Judgment : BHASKAR BHATTACHARYA, J. (1.) This mandamus appeal is at the instance of a private respondent in an application under Article 226 of the Constitution of India and is directed against the order dated March 26, 2007 passed by a learned Single Judge of this Court thereby disposing of the said writ application by setting aside the order dated October 04, 2006 passed by the Sub-Divisional Officer in FRA No. 11 of 2006 and directing the Sub-Divisional Officer to hear out the appeal afresh. (2.) Being dissatisfied, the respondent No.4 of the writ application has come up with the present appeal. (3.) Mr. Mukherjee, the learned Advocate appearing on behalf of the appellant, has severely criticised the order passed by the learned Single Judge on the ground that although in the writ application, the writ petitioner did not challenge the said order dated October 04, 2006, the learned Single Judge acted beyond the scope of the writ application in setting aside the said order. (4.) To appreciate the aforesaid question raised by Mr. Mukherjee, it will be profitable to refer to the following factual background of the present litigation: (a) On August 01, 1975 the Deputy Commissioner, Andaman in exercise of power under section 146(11) read with Rule 164 of A and N Islands Land Revenue and Land Reforms Regulation, 1966 issued a licence to the present appellant in respect of 1.20 hectare of land situated at Survey No. 1951/3 at village Phonix Bay for the purpose of construction of a hotel. (b) On October 17, 1986, the Tehsildar initiated a proceeding under; section 202 of the A and N Islands Land Revenue and Land Reforms Regulation, 1966, against the respondent No. 4/writ petitioner and passed an order of eviction against him from 150 square metres of the land out of Survey No. 1951 situated at Phonix Bay alleged to have been encroached by him. There is no dispute that the respondent No. 4 did not prefer any appeal against such order but when the said order was sought to be executed, he filed a writ application before this Court. The said writ application was dismissed with the observation that unless the original order of eviction was challenged, the respondent No. 4 could not dispute the legality of the subsequent order passed in execution. The said writ application was dismissed with the observation that unless the original order of eviction was challenged, the respondent No. 4 could not dispute the legality of the subsequent order passed in execution. (c) Being dissatisfied, the respondent No. 4 preferred an appeal but such appeal was also dismissed by a Division Bench of this Court by giving an opportunity to the respondent No. 4 to prefer appeal against the original order of the year 1986 with the prayer for condonation of delay. Against such order, a special leave application was filed but the same was also dismissed with the self-same liberty given to the respondent No. 4. (d) In spite of such liberty given by the Apex Court, the respondent No. 4 did not prefer any appeal against the original order of 1986 passed by the Tehsildar, but the fact remains that the Administration also did not execute the said order against the respondent No. 4. (e) In view of such fact, the appellant before us filed a writ application being W.P. No. 29 of 2005 alleging inaction on the part of the Administration in not taking step for execution of the order of eviction against the respondent No 4. Such writ application was disposed of by a learned Single Judge of this Court by directing the Tehsildar to dispose of the execution case within a specified period in accordance with law. Pursuant to such order passed by the learned Single Judge, the Tehsildar sought to execute the said order by passing a specific order dated August 26, 2006 directing execution. Being dissatisfied with the order dated 26th August, 2006 passed by the Tehsildar in R.C. No. 139 of 2006/TPB, the respondent No. 4 preferred an appeal being FRA No. 11 of 2006 before the Court of Sub-Divisional Officer, South Andaman and in the said appeal, an interim order of stay of the operation of the order of Tehsildar was passed on 30th August, 2006; but ultimately when the appeal was taken up for hearing; the Sub-Divisional Officer vacated the order dated 30th August, 2006 in view of the order passed by this Court. (f) At the stage, the respondent No.4 came up with a fresh writ application being W.P. No. 141 of 2006 out of which the present mandamus appeal arises. (f) At the stage, the respondent No.4 came up with a fresh writ application being W.P. No. 141 of 2006 out of which the present mandamus appeal arises. In the said writ application, the writ petitioner basically prayed for quashing of order dated 26th August, 2006 passed by the Tehsildar and also for restoration of electricity and water connection which had since been disconnected in view of the order dated 4th October, 2006 passed by the Sub-Divisional Officer. (5.) The writ application was opposed by the present appellant thereby contending that in view of the orders passed in the earlier round of litigation which went up to the Supreme Court, no question of granting any stay of the order passed by the Tehsildar arose. The Administration at the time of hearing of the writ application placed before the Court all materials but neither supported the writ petitioner nor opposed such application as reflected from the order impugned. (6.) It, however, appears that in the meantime, the respondent No. 4 before us, has filed a regular suit in the Civil Court thereby praying for declaration of his title to the disputed property as tenant and other consequential relief and the same is pending. (7.) As indicated above, the learned Single Judge although did not grant any relief specifically claimed by the respondent No.4 in the writ application, set aside the order passed by the Sub-Divisional Officer dated 4th October, 2006 and directed him to rehear the appeal afresh in accordance with law. (8.) Being dissatisfied, the respondent No.4 of the writ application has come up with the present appeal. (9.) After hearing the learned Counsel for the parties and after going through the aforesaid materials on record, we are of the view that the point now raised by Mr. Mukherjee, learned Advocate appearing on behalf of the appellant, has lost its importance in view of the fact that the respondent No. 4 had already filed a Civil Suit for declaration of his title and consequential relief and such suit is pending. (10.) We find substance in the contention of Mrs. Nag, the learned Advocate appearing on behalf of the respondent [Mo. (10.) We find substance in the contention of Mrs. Nag, the learned Advocate appearing on behalf of the respondent [Mo. 4 before us, that once a civil suit is filed for declaration of title, the Tehsildar cannot execute the order of eviction under section 202(1) of the Regulation sand therefore, the learned Single Judge did not commit any illegality in setting; aside the order dated October 4, 2006 passed by the Sub-Divisional Officer by which the previous order of stay was vacated. (11.) Mr. Mukherjee, learned Advocate appearing on behalf of the appellant, in this connection, laboriously contended before us that mere filing of a civil suit cannot automatically confer the benefit of stay of the operation of the order of eviction passed under section 202(1) of the Regulation and in order to get the advantage of sub-section (8) of section 202, a notice of three-months disclosing the intention to file such suit must be given. Mr. Mukherjee contends that no such notice having been given to the Tehsildar, the respondent No.4 cannot get the benefit of automatic stay as provided in sub-section (8) of section 202. (12.) To appreciate the aforesaid contention, we quote the entire section 202 below: "202. (1) Any person who unauthorisedly takes or remains in possession of any unoccupied land or abadi may be summarily ejected by order of the Tahsildar and any crop which may be standing on the land and any building or other work which he may have constructed thereon, if not removed by him within such time as the Tehsildar may fix, shall be liable to forfeiture. (2) Any property forfeited under sub-section (1) shall be disposed of in such manner as the Tehsildar may direct and the cost of removal of any crop, building or other work and of all works necessary to restore the land to its original condition shall be recoverable from such person as an arrear of land revenue. (3) Such person shall, subject to the provisions of sub-section (5), also be liable, at the discretion of the Tehsildar, to a fine which may extend to two hundred and fifty rupees. (4) The Tehsildar may apply the whole or any part of the fine imposed under sub-section (3) to compensate persons who may, in his opinion, have suffered loss or injury from such unauthorised occupation. (4) The Tehsildar may apply the whole or any part of the fine imposed under sub-section (3) to compensate persons who may, in his opinion, have suffered loss or injury from such unauthorised occupation. (5) If, in any case, the Tehsildar considers that circumstances of the case warrant imposition of a fine exceeding two hundred and fifty rupees he may refer the case to the Sub-Divisional Officer who shall then, after giving the party concerned an opportunity of being heard, pass such order in respect of fine as he may deem fit. (6) If any person ordered to be ejected under sub-section (1) has constructed any work of a permanent nature under a bona fide mistake, he may apply to the Deputy Commissioner for condonation of the encroachment and the Deputy Commissioner may, if satisfied that the work was constructed under a bona fide mistake and that the land can be allowed to remain in the possession of such person without any serious detriment to public purpose, condone the encroachment under such terms as he may deem fit. (7) No order made under sub-section (1) shall prevent any person from establishing his rights in a Civil Court. (8) If notice of an intention to institute a suit is delivered to the Tehsildar, he shall desist from carrying out his order under sub-section (1) for a period of three months, and if such suit is filed within such period he shall stay his proceedings pending the decision of the Civil Court." (13.) After going through the aforesaid section, we find that for the purpose of filing a suit for declaration of title, the notice of three-months as prescribed in sub-section (8) is not at all mandatory. The object of giving such notice is for the benefit of the person against whom an order for eviction has been passed under sub-section (1) in the sense that he gets a period of three months for the purpose of approaching a Civil Court as breathing time once he gives such notice. However, even if a person after suffering an order for eviction under sub-section (1) of section 202 does not give a notice conveying his intention to file a suit but straightaway files a suit, the moment the suit is filed, the Tehsildar cannot proceed with execution of the order of eviction. However, even if a person after suffering an order for eviction under sub-section (1) of section 202 does not give a notice conveying his intention to file a suit but straightaway files a suit, the moment the suit is filed, the Tehsildar cannot proceed with execution of the order of eviction. By giving a notice, the alleged encroacher against whom order for eviction has been passed gets virtually a stay order for three months even before filing of a civil suit. (14.) We, therefore, find that in the case before us a civil suit having already been filed, the Tehsildar now cannot proceed with the execution during the pendency of the said suit and the fate of the order under sub-section (1) of section 202 will depend upon the outcome of the civil suit. (15.) Although, Mr. Mukherjee tried to impress upon us that in the past the respondent No.4 having failed to obtain, any order from this Court in the writ application or in the mandamus appeal, we should not pass any order restraining the Tehsildar from executing the order we are not at all impressed by such submission. When the previous writ application was filed, the civil suit was not pending and notwithstanding the provision of appeal against the order of Tehsildar by taking aid of section 24 of the Regulation, an aggrieved person can also file a civil suit and once a civil suit it is filed, during the pendency of such suit, the order of eviction cannot be enforced. We do not find any force in the contention of Mr. Mukherjee that the plaintiff in the civil suit is required to obtain an order of injunction in order to protect himself from the eviction through the execution of the order passed under sub-section (1) of section 202. (16.) In view of what have been stated above, although we do not approve all the reasons assigned by the learned Single Judge, we are of the view that the writ petitioners fate is now solely dependent upon the result of the civil suit and during the pendency of the civil suit, he cannot be evicted. After filing of a civil suit on the basis of title, there is no necessity of passing a direction upon the Sub-Divisional Officer to hear out the appeal afresh. After filing of a civil suit on the basis of title, there is no necessity of passing a direction upon the Sub-Divisional Officer to hear out the appeal afresh. (17.) We, therefore, modify the order impugned by directing the Civil Court to dispose of the suit as expeditiously as possible. We are given to understand that the appellant has already filed an application under Order 7 Rule 11 of the Code for rejection of the plaint. The Court should immediately dispose of such application. We make it clear that, we have not otherwise gone into the merit of the suit filed by the respondent No.4 or the application under Order 7 Rule 11 of the Code filed by the appellant before us. It is needless to mention that during the pendency of the suit, the order of eviction of the year 1986 passed by the Tehsildar under section 202(1) of the Regulation should not be executed. (18.) The mandamus appeal is disposed of with the aforesaid observations.