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2007 DIGILAW 851 (CAL)

M Raju v. UNION OF INDIA

2007-12-06

SOUMITRA PAL

body2007
JUDGMENT:- (1). THE petitioners had filed the writ petitions challenging an order dated 22nd July, 2006 issued by the Station House Officer, Police station, Nancowry directing them to produce valid documents regarding their stay in Camorta on the ground that they have been residing for a long period of time without holding any valid permit in gross violation of the provisions of the andaman and Nicobar Islands (Protection of Aboriginal Tribes), Regulations, 1956 (for short "the Regulation"). Be it noted the Regulation was promulgated for the protection of the interests of socially and economically backward aboriginal tribes in the Andaman and Nicobar Islands. (2). THE writ applications were moved on various dates. Directions were issued for filing of affidavits. Interim order was passed restraining the respondents from taking any step in terms of the impugned order dated 22nd July, 2006. Affidavits have been exchanged. It may be mentioned that during the pendency of writ applications the Nicobaree Youth Association was added as a party. (3). IT appears from facts that the petitioners whose permit had expired and residing and carrying on business for more than twenty years in the island of camorta do not admittedly belong to an aboriginal tribe. (4). THE issues which require to be decided are whether the Station House officer had the jurisdiction to issue the impugned order dated 22nd July, 2006 and whether Camorta island was a reserved area or not. (5). IN order to adjudicate the issue whether the Station House Officer had the jurisdiction to issue the impugned order, it is necessary to refer to the sections 6, 7 and 9 of the Regulations which is extracted hereunder: "6 (1) No person other than a member of an aboriginal tribe shall, except with the previous sanction of the Chief Commissioner, acquire any interest in any land situated in a reserved area or in any product of, or crop raised on, such land, or shall, except under and in accordance with the terms and conditions of a license granted by the Chief Commissioner carry on any trade or business in any such area. (2) The provisions of sub-section (1) shall apply to any person who, at the commencement of this regulations is carrying on any trade or business in any such area after the expiration of sixty days from such commencement. 7. (2) The provisions of sub-section (1) shall apply to any person who, at the commencement of this regulations is carrying on any trade or business in any such area after the expiration of sixty days from such commencement. 7. The Chief Commissioner may, by notification, prohibit any person other than a member of an aboriginal tribe or any class of persons other than members of an aboriginal tribe from entering a reserved area except on the authority and subject to the observance of the conditions and restriction of a pass granted by the Deputy Commissioner or by such other officer as the deputy Commissioner may authorize in writing in this behalf. 9 (1) The Chief Commissioner or any person authorized by him in this behalf may arrest without a warrant any person who has committed, or is suspected of having committed, any offence punishable under this Regulations. " (Emphasis supplied) (6). IT is apparent from a reading of the relevant provisions of the Regulations that there is a complete bar on any person other than member of an aboriginal tribe to carry on trade or business in a reserved area and the Chief Commissioner has been conferred with the power to issue notification prohibiting any person from entering a reserved area except on the authority and subject to the observance of the condition and restriction of a pass granted by the Deputy commissioner or any officer authorized in that behalf. Further power has been conferred on the Chief Commissioner to authorize any person to arrest without a warrant any person who has committed or suspected of having committed any offence punishable under the Regulations. It appears that such a notification authorizing the Police Officers was issued on 6th May, 1957 by the Chief Commissioner, Andaman and Nicobar Islands which is set out here in below: "No. AN/patr/9 (l)l. In exercise of the powers conferred by sub-section (1) of section 9 of the Andaman and Nicobar Islands (Protection of Aboriginal tribes) Regulations, 1956 (Regulation No. 3 of 1956), the Chief Commissioner, andaman and Nicobar Islands, is pleased to authorise each of the following officers to arrest without a warrant any person who has committed, or is suspected of having committed, any offence punishable under the said regulations, namely: (i) All Police Officers above the rank of a Constable. (ii) All members of the Bush Police Force under the administrative control of the Police and Forest Department of the Andaman and Nicobar Islands. (iii) All Officers of the Forest Department of the Andaman and Nicobar islands not below the rank of a Ranger. So/-Chief Commissioner, andaman and Nicobar Islands. "(Emphasis supplied) (7). THEREFORE, by virtue of the notification police officers have been authorized to take steps for commission of offence punishable under the Regulations. Since admittedly the Station House Officer is above the rank of a constable, the said respondent, as he was authorized, had the jurisdiction and was competent to issue the impugned order. (8). FURTHER, it was argued on behalf of the petitioners that Camorta Island by a notification has been kept out of the purview of the reserved area and it has been declared as a port and, therefore, the Regulations are inapplicable. In order to address this issue it is necessary to refer to section 3 (1) of the regulations which is as under-"3 (1) the Chief Commissioner may by notification, declare any area which is predominantly inhabited by aboriginal tribes to be a reserved area and specify the limits of such area and may, from time to time, in like manner, alter such limits. " (9). IT appears that in exercise of the powers conferred under the said regulations the Chief Commissioner by a notification dated 2nd April, 1957 had declared as under: "no. ANPATR 3 (1)/1 - In exercise of the powers conferred by sub-section (1) of section 3 of the Andaman and Nicobar Islands (Protection of Aboriginal tribes) Regulations, 1956 (Regulation No. 3 of 1956), the Chief Commissioner. Andaman and Nicobar Islands is pleased to declare each of the following areas to be a reserved area, namely: (a ). . . . . . . . . . . (b ). . . . . . . . . . . (c ). . . . . . . . . . . (d) The entire area comprised in, and enclosed within the coast line of, each of the following islands but excluding the area comprising the air-field in car Nicobar and the ports of Camorta and Car Nicobar:-(vii) Camorta. " (Emphasis supplied) (10). . . . . . . . (c ). . . . . . . . . . . (d) The entire area comprised in, and enclosed within the coast line of, each of the following islands but excluding the area comprising the air-field in car Nicobar and the ports of Camorta and Car Nicobar:-(vii) Camorta. " (Emphasis supplied) (10). IT appears from the notification dated 2nd April, 1957 that Camorta island is a reserved area and only the area comprising the port of Camorta has been excluded from the reserved area. It has been argued that the petitioners are residing or carry on business in the area occupied by the port of Camorta. In the said area the land was allotted to the Temple Committee in the year 1954. Committee had allowed the petitioners to construct stalls or shops. The petitioners are the tenants of the stalls. Thus, according to the petitioners, they are in a valid occupation of the land in question. Such submission was seriously contested by the learned Advocate for the respondent on the ground that it is apparent from the order dated 4th January, 1954 that the plot of land was allotted for construction of temple and garden and not for running of business. In my view whether the petitioners are validly occupying the land or not or whether the plot in question is in the port area or not are questions of fact to be considered by the authority concerned. Since I have held that the station House Officer, respondent No. 7 had the jurisdiction, the action of the said respondent in issuing the order dated 22nd July, 2006 was just and proper. Therefore, the writ applications are dismissed. Interim order is vacated. However, as it was submitted that the petitioners may be given liberty to apply for grant of passes, it is always open for them to apply and if such applications are filed those shall be disposed of in accordance with law. (11). NO order as to costs.