Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 270 (CAL)

S. Pitchai v. UNION OF INDIA

2009-03-31

SANJIB BANERJEE

body2009
Judgment :- (1) The petitioner claims to be a pre-1961 encroacher upon government land at Corbyns Cove village in the Port Blair Tehsil bearing old survey No. 10. The petitioner claims to have encroached onto land measuring about 1450 sq.m prior to 1961 and having retained the same. (2) In the writ petition, a challenge has been launched against the 2003 scheme relating to pre-1942 settlers. The 2003 scheme provides that excess land in the Port Blair municipal area which was in the possession of the pre-1942 settlers up to the year 1961 could be regularized without levy of any premium subject to the following two conditions: "(i) the excess land will be regularised only to the extent that the concerned occupants and their descendents have maintained their continued possession till date. (ii) A and N Administration will carry out a survey to identify the Pre-1942 settlers/their descendents and the exact area of excess land in their possession upto 1961." (3) The petitioner says that the 2003 scheme is arbitrary and there is no rational basis for making a distinction between the pre-1942 settlers and the pre-1961 encroachers on government land. The petitioner says that there is no rationale that is disclosed in the notification of July 15, 2003 for discriminating against the other lots of encroachers on the basis of the period of occupation. More than this, the writ petitioner does not urge any ground challenging the underlying basis of the 2003 scheme. (4) The petitioner instituted W.P.No.263 of 2007 before this Court complaining of the petitioner having been arbitrarily left out of the scheme of things covered by the 2003 notification. A similar challenge as to the rationale behind the formulation of the 2003 scheme is found in the earlier petition. However, WP No.263 of 2007 was disposed of on October 15, 2007 without leaving it open to the petitioner to assail the rationale of the 2003 scheme but by directing the Deputy Commissioner to consider the petitioners written application for regularisation that was appended as annexure P-5 to the earlier petition. (5) Following the order of October 15, 2007 the Deputy Commissioner took up the matter. It is the Deputy Commissioners order of November 23, 2007 that has been challenged in the present proceedings. (6) The Deputy Commissioner took cognizance of the contentions raised by the petitioner. (5) Following the order of October 15, 2007 the Deputy Commissioner took up the matter. It is the Deputy Commissioners order of November 23, 2007 that has been challenged in the present proceedings. (6) The Deputy Commissioner took cognizance of the contentions raised by the petitioner. The Deputy Commissioner consulted the records, including a report from the Tehsildar of Port Blair, and was of the view that the petitioner was not eligible to apply under the 2003 scheme. (7) Apart from the limited attack in respect of the 2003 scheme that has been carried by the petitioner, the two other counts of challenge that have been fashioned now are as follows: the petitioner says that the Deputy Commissioner relied on a report prepared by the Tehsildar without affording the petitioner an opportunity of looking into such report and, the petitioner charges in similar vein, that the Deputy Commissioner consulted the encroachment register without the petitioner having any chance to deal with the same; and, that the 1987 scheme relating to pre-1978 settlers that was availed of by the petitioner still remains open and a mistake committed by the Administration or the respondent authorities in assessing the extent of the petitioners holding in 1987 can still be corrected. (8) There have been several schemes that have been promulgated by the Administration for regularising the possession and occupation of the settlers on these islands over a period of time. There was a scheme of 1966 for the pre-1961 settlers; there was a 1987 scheme for pre-1978 encroachers and there has now been a 2003 scheme for conferring certain additional benefits on the pre-1942 settlers in the event such settlers had retained the excess land shown in the 1961 survey. (9) It is the opinion of the Deputy Commissioner, based on the Tehsildars report and other records, that the petitioner obtained a licence for 200 sq.m of land in Corbyns Cove village under the 1987 scheme and it was incumbent on the petitioner to surrender the excess land allegedly in the petitioners possession for the licence issued in the petitioners favour to be effective. The Deputy Commissioner consulted records which revealed that the petitioner had attempted to encroach upon government land subsequent to 1978 and such attempts were repulsed. The Deputy Commissioner concluded that the petitioner was not a pre-1961 settler. The Deputy Commissioner consulted records which revealed that the petitioner had attempted to encroach upon government land subsequent to 1978 and such attempts were repulsed. The Deputy Commissioner concluded that the petitioner was not a pre-1961 settler. (10) The first point urged by the writ petitioner that of the 2003 scheme being discriminatory is of no merit. For a first, the petitioner may not be entitled to carry such argument in view of the order dated October 15, 2007 rendered on the earlier petition. Since the petitioner had questioned the basis of the 2003 scheme and the writ petition was disposed of by only directing the Deputy Commissioner to consider the petitioners representation, it cannot be said that the petitioners challenge to the basis for the 2003 survived for the petitioner to pursue the same at a subsequent stage. Surely, the Deputy Commissioner could not have entertained the challenge to the 2003 scheme, notwithstanding the order of October 15, 2007. (11) Secondly, the only ground urged is that on the basis of unauthorised occupation of government land for varying periods of time different treatment cannot be meted out to similarly-situated persons. The erroneous assumption in the argument is that later encroachers are similarly situated as the earlier settlers. Though age and seniority have been dubiously used as a measure of distinction in some walks of life, this argument here does not appeal since the group that has been singled out for special consideration under the 2003 scheme comprises the persons or their descendants who have spent a longer time on these islands. Certain additional privileges may have been conferred on the earlier lot of settlers and it was not an irrational yardstick applied by the Administration to bestow the additional benefits purely on the ground that such persons had been on these islands for a longer duration. There is no obvious arbitrariness that is apparent in the 2003 scheme in singling out the more ancient settlers for additional benefits. In any event, the 2003 scheme is hedged with the onerous condition of the pre-1942 settlers being required to demonstrate that they retained possession of the excess land shown in the 1961 survey up until the date of the scheme before any benefit in respect of such additional land could be claimed. In any event, the 2003 scheme is hedged with the onerous condition of the pre-1942 settlers being required to demonstrate that they retained possession of the excess land shown in the 1961 survey up until the date of the scheme before any benefit in respect of such additional land could be claimed. There does not appear to be any absurdity or unreasonableness, about the framing of the 2003 scheme, considering the limited extent of the challenge that has been launched here. (12) The other contention of the petitioner -that the petitioner is entitled to settlement in respect of excess land even on the basis of 1987 scheme - cannot also be countenanced. It is the Administrations case that the 1987 scheme was closed down in or about the year 1998. The writ petitioner says that the notification of 1987 does not indicate that it was intended to be a time-bound window for the pre-1978 encroachers and as such the scheme is deemed to continue. It is the petitioners assertion that even if there are new applications now under the 1987 scheme, the appropriate authorities are duty bound to consider such applications irrespective of the Administration having deigned to have closed down the scheme in 1998. Such argument may not be open to the writ petitioner in view of the judgment in WP No.198 of 2006 (Shri B. Karunanidhi v. The Lieutenant Governor (Administrator) and Ors) delivered on March 27, 2007. It was open to the Administration, which had conferred certain benefits on encroachers who otherwise had no right to the land that they found themselves on, to limit the period during which encroachers could apply to avail the benefit. If the Administration had the authority in the first place to confer the benefit, the Administration had the consequential authority to declare the scheme closed after a reasonable period of time. (13) It is the only other ground that the writ petitioner has urged that appears to be of some substance. The petitioners challenge to the order of the Deputy Commissioner for the official having relied on material not made available to the petitioner, can be broken into two. The first limb relates to the Tehsildars report that is referred to in the first page of the order. The petitioners challenge to the order of the Deputy Commissioner for the official having relied on material not made available to the petitioner, can be broken into two. The first limb relates to the Tehsildars report that is referred to in the first page of the order. If there was such a report that had been produced by the Tehsildar, the principles of natural justice demanded that the petitioner be given a copy of the same and the petitioner be allowed an opportunity to deal with the contents thereof before it could be used against him. (14) The other limb of the final contention -that of the Deputy Commissioner consulting government records without reference to the petitioner -cannot be accepted. The government records, including the encroachment register, that were relied upon by the Deputy Commissioner were public documents within the meaning of section 74 of the Evidence Act and the contents of such documents were lawfully taken into account by the Deputy Commissioner. (15) Since it is found that the report of the Tehsildar relied upon by the Deputy Commissioner was not made available to the petitioner, the petitioner is permitted to re-agitate the matter before the Deputy Commissioner upon obtaining a copy of the report of the Tehsildar that has been referred to in the first page of the Deputy Commissioners order. However, such liberty can be enjoyed by the petitioner upon a condition being imposed. Considering the other aspects of the seemingly uninspiring cause of the petitioner, he will have the luxury to have the matter re-agitated before the Deputy Commissioner subject to his putting in a deposit of 500 GM. Such deposit will be a condition precedent for the Deputy Commissioner to entertain the writ petitioners further essay for reconsidering the matter. In the event, the writ petitioner succeeds before the Deputy Commissioner; the deposit will be immediately refunded by the Deputy Commissioner to the writ petitioner. In the event the writ petitioners further adventure before the Deputy Commissioner fails, the deposit will be forfeited by the Administration. (16) The liberty granted to the petitioner in this order will be available for a period of four weeks from date. In the event the writ petitioners further adventure before the Deputy Commissioner fails, the deposit will be forfeited by the Administration. (16) The liberty granted to the petitioner in this order will be available for a period of four weeks from date. If the deposit is made within such period, the Deputy Commissioners order dated November 23, 2007 will stand set aside and the Deputy Commissioner will consider the matter on remand and dispose of the same by a reasoned order, after making available a copy of the report of the Tehsildar to the writ petitioner, within a period of eight weeks from the date of the petitioner making the deposit before the Deputy Commissioner. If the petitioner fails to avail of the liberty reserved unto him by this order within the time permitted, the Deputy Commissioners order dated November 23, 2007 will stand. (17) WP No. 161 of 2008 is disposed of without any order as to costs. Urgent certified photostat copy of the order be supplied to the parties on the usual undertakings. Writ petition disposed of.