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2010 DIGILAW 1097 (CAL)

Suchitra Ray v. Chief Secretary

2010-08-30

S.K.MUKHERJEE

body2010
JUDGMENT Subhro Kamal Mukherjee, J. 1. THIS is an application under Article 226 of the Constitution of India arising out of the proceeding under Regulation 161 of the Andaman and Nicobar Islands Regulation, 1966 (the said Regulation for the sake of brevity). 2. THE husband of the writ petitioner, namely, S.K. Roy alias Sushil Kumar Roy, was a tenant under one Jagannath alias Jagannath Arrora in respect of one single storied house situated at Haddo under new survey No.22 corresponding to old house site No.11, which was let out for the purpose of residence as well as for using it as a godown . Jagannath Arrora, since deceased, instituted a suit against his said tenant for eviction, inter alia, on the ground of default. The suit was registered as Other Suit No.5 of 1984 in the Court of learned Senior Subordinate Judge at Port Blair. During the pendency of the suit, Jagannath alias Jagannath Arrora died intestate and all his heirs were substituted as the substitute plaintiffs instead and in place of the said Jagannath Arrora in the said suit. The private respondent, who is the daughter of Jagannath Arrora, was, also, substituted as one of the heirs of the said Jagannath Arrora in the said suit. 3. BY judgment and decree dated March 30, 1988, the learned Senior Subordinate Judge dismissed the suit, on contest, with costs. The learned judge had found, as finding of fact, that the defendant was in occupation as a tenant for more than sixteen years and, during these long period, the plaintiffs never cared to undertake any repair in the suit premises, which were built mainly by timber. The learned judge, also, found that there was neither any agreement of enhancement of rent nor any new tenancy was created as alleged by the plaintiffs. The court recorded that the defendant deposited, after appearance in the suit, the entire arrears of rent at the admitted rate and, therefore, the defendant was no longer defaulter and the plaintiffs were not entitled to get any arrears of rent. 4. IT is on record that the deceased husband of the writ petitioner lodged a complaint with the Deputy Commissioner, the Police and the Municipal Authorities in 1989 that the brother of the private respondent was creating nuisance and was constructing a hut with Chatai just in front of the tenanted premises. 4. IT is on record that the deceased husband of the writ petitioner lodged a complaint with the Deputy Commissioner, the Police and the Municipal Authorities in 1989 that the brother of the private respondent was creating nuisance and was constructing a hut with Chatai just in front of the tenanted premises. The private respondent, namely, Shrimati Sasi Sankala, filed an application under Regulations 98 and 161 of the said Regulation in the office of the Tahsildar at Port Blair. The application was filed through her constituent attorney Ashok Kumar alias Ashok Kumar Arrora. The said Ashok Kumar Arrora was, also, substituted as one of the plaintiffs in the Other Suit No.5 of 1984. The application was filed alleging that Sushil Kumar Roy, since deceased, and R.M.Chakbraborty were tenants inducted in the single storeyed wooden house situated at Haddo village. The land has been recorded in the name of the private respondent in the government settlement record of rights. The said Sushil Kumar Roy and R.M. Chakraborty became tenants under the private respondent. She got married with D.C. Sankala, who was a member of the Indian Administrative Service, and was posted at New Delhi. She being the wife of the said D.C. Sankala was, also, residing with her husband at New Delhi. The said tenants, taking undue advantage of her absence from these islands, started construction upon vacant land lying in the backside of the single storied wooden house, that is, tenanted house. She, therefore, prayed for ejectment of both the said persons from the vacant land where they were raising construction of a building. It appears from the order sheet of the said proceeding under Regulation 161 of the said Regulation that the Tahsildar registered the said application received from the said Shrimati Sasi Sankala, through her power of attorney, on January 13, 2004 as a revenue case. Surprisingly, even before the registration of the case, the Tahsildar called for a report from the field staff. It does not appear from the materials on record whether such inspection was conducted by the field staff with notice to the husband of this writ petitioner. However, a showcause notice was issued on the said tenants only on June 13, 2004 asking them to vacate their alleged unauthorized occupation of the disputed land. 5. I do not think that the procedure adopted by the Tahsildar was proper. However, a showcause notice was issued on the said tenants only on June 13, 2004 asking them to vacate their alleged unauthorized occupation of the disputed land. 5. I do not think that the procedure adopted by the Tahsildar was proper. Before registration of the complaint, he directed inspection by the field staff that too ex parte. He, however, issued show cause notice upon perusal of the said report of the said field staff. The said Sushil Kumar Roy appeared in the said revenue case and contested the case by filing his written objection. He stated that he was inducted in the suit premises by Jagannath Arrora sometime in the year 1972. He denied that he ever constructed any illegal construction on the vacant land of the said Shrimati Sasi Sankala. He stated that the original landlord permitted him to make construction of an office room in the existing building. He constructed the office room about thirty years back and was using the same as his office room for the last thirty years. However, he constructed a scooter garage in the year 1972 in the excess land of the government and he had applied for allotment of such land in his name under 1978 scheme of regularization. The prayer for regulation was pending before the government. 6. THE Tahsildar, Port Blair, by order dated September 2, 2004, allowed the application under Regulation 161 of the said Regulation and directed the said Sushil Kumar Roy, the deceased husband of the writ petitioner, to deliver vacant possession of the disputed land. The deceased husband of the writ petitioner preferred an appeal under Regulation 28(1) (a) of the said Regulation before the Sub Divisional Officer, South Andaman. The appeal was registered as Revenue Appeal No.114 of 2004. Initially, the appellate authority wrote a hand written order on March 16, 2006. The improved judgment, thereafter, was prepared and it was typed in a computer. The appellate authority dismissed the appeal and affirmed the order of the Tahsildar. The husband of the writ petitioner preferred a second appeal before the Secretary (Revenue), Andaman and Nicobar Islands, at Port Blair. It was registered as Second Revenue Appeal No.5 of 2006. During the pendency of the said appeal, the original appellant, Sushil Kumar Roy, died and his widow, the present writ petitioner, was substituted instead and in place of the said Sushil Kumar Roy. It was registered as Second Revenue Appeal No.5 of 2006. During the pendency of the said appeal, the original appellant, Sushil Kumar Roy, died and his widow, the present writ petitioner, was substituted instead and in place of the said Sushil Kumar Roy. The second appellate authority by order dated July 24, 2008 dismissed the second appeal holding, inter alia, that the original tenant occupied some portion of vacant land adjacent to the tenanted premises some time in December, 2002. Being aggrieved by and dissatisfied with the order of the second appellate authority, this writ petition is filed. Sub-regulations (1) and (2) of Regulation 161 of the said Regulation, relevant for the purpose of disposal of this writ petition, are as under:- 161(1) If after the commencement of this Regulation any tenant is disposed of any lands held by him otherwise than by process of law, he may within two years from the date of such dispossession, apply to the Tahsildar for his reinstatement in such land. (2) On receipt of an application under sub-section (1), the Tahsildar shall, after making an enquiry into the respective claims of the parties, pass order on the application and when he orders the restoration of possession to the tenant, put him in possession of the land. My reading of the said Regulation is that it was incumbent on the authorities to record a categorical finding as to the date when the applicant was in possession and when she was dispossessed and whether the proceeding was initiated within two years from the date of such dispossession. Unless these ingredients are proved, the applicant is not entitled to any relief inasmuch as the sole question in a proceeding under the said Regulation 161 of the said Regulation is one of possession. 7. I have perused carefully the application under Regulation 161 of the said Regulation. Nowhere in the said application, the private respondent, Shrimati Sasi Sankala, stated the date of her alleged dispossession. The Tahsildar found that the said Sushil Kumar Roy was a tenant under Shrimati Sasi Sankala, who was not paying rent. The Tahsildar held that the said Sushil Kumar Roy illegally encroached vacant land of his landlady and, therefore, he was liable to be evicted without any finding as to when Sushil Kumar Roy allegedly dispossessed his landlady. The Tahsildar found that the said Sushil Kumar Roy was a tenant under Shrimati Sasi Sankala, who was not paying rent. The Tahsildar held that the said Sushil Kumar Roy illegally encroached vacant land of his landlady and, therefore, he was liable to be evicted without any finding as to when Sushil Kumar Roy allegedly dispossessed his landlady. There was no finding on the allegation of the tenant that he had not made any construction encroaching any vacant land of his landlady, but he constructed a scooter garage sometime in the year 1972 in the land of the government and, already, requested the government for allotment of encroached land to him under the 1978 scheme of regularization of encroached land. The order of the first appellate authority is clearly a product of non-application of mind. He mechanically affirmed the order of the Tahsildar. I am surprised to see that there are two judgments: one hand written and one computer typed. Assuming that the handwritten judgment was a draft copy, I do not find that there is any finding as to when the tenant allegedly dispossessed the landlady from the vacant land. The appellate authority recorded the case of the private respondent and noted the contents of the order of the Tahsildar and, thereafter, dismissed the appeal mechanically. 8. THE second appellate authority held that the Tahsildar found that the tenant dispossessed landlady from her vacant land sometime in December, 2002. But, from the order of the Tahsildar I do not find any finding in this behalf. The second appellate authority relied upon the report on the field staff although such enquiry was held even before the registration of the case, that too, without giving notice to the tenant. Where a person is in settled possession of a property, even on an assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. Supreme Court of India in the case of Achutananda Baidya v. Prafullya Kumar Gayen and others reported in (1997) 5 Supreme Court Cases 76 held that the power of superintendence of the High Court is not confined to administrative superintendence only, but such power includes within its sweep the power of judicial review. Supreme Court of India in the case of Achutananda Baidya v. Prafullya Kumar Gayen and others reported in (1997) 5 Supreme Court Cases 76 held that the power of superintendence of the High Court is not confined to administrative superintendence only, but such power includes within its sweep the power of judicial review. The power and duty of the High Court is essentially to ensure that the Courts and the tribunals have done what they were required to do. The High Court can interfere in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on records, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding, which was perverse or based on no material, or resulting in manifest injustice. The High Court can interfere with the findings of fact if the subordinate court or the tribunal came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper jurisdiction or if its conclusions were perverse. 9. I am of the opinion that this proceeding has been initiated under Regulation 161 of the said Regulation to evict the tenant in a circuitous manner when a regular suit for eviction under the Andaman and Nicobar Islands Rent Control Regulation proved abortive by the heirs of the original landlord. The manner in which the proceedings have been dealt with by the authorities is highly unsatisfactory. I am of the considered opinion that it is not established by reliable evidence that the tenant was not exclusively using disputed part of the land adjacent to the tenanted property. It was necessary for the landlady to establish that she was forcibly dispossessed. The operation of Regulation 161 of the said Regulation is excluded in the case between the landlord and the tenant when the question of title is involved. The question as to whether the disputed structure is on the vacant land the applicant or part of government land has not been answered by any of the authorities. In this proceeding the authorities had no power to enlarge its scope inasmuch as the sole question is one of possession. 10. IN the absence of definite conclusion in this regard, I am inclined to set aside the order of the second appellate authority affirming the order of the appellate authority and that of the Tahsildar. In this proceeding the authorities had no power to enlarge its scope inasmuch as the sole question is one of possession. 10. IN the absence of definite conclusion in this regard, I am inclined to set aside the order of the second appellate authority affirming the order of the appellate authority and that of the Tahsildar. Therefore, the writ petition is allowed. The application under Regulation 161 of the said Regulation is dismissed. However, this order shall not prevent the private respondent to file suit against the writ petitioner for recovery of possession in accordance with law.