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2018 DIGILAW 106 (CAL)

Shelly Ghosh v. Lieutenant Governor

2018-01-15

SAMBUDDHA CHAKRABARTI

body2018
JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. In spite of the fact that there was a direction for filing affidavit-in-opposition as early on November 02, 2017 and in spite of fact that the time to file affidavit-in-opposition has been extended thereafter, no such affidavit-in-opposition has been filed by any of the respondents. As a matter of fact none of the advocates prayed for extension of time to file affidavit-in-opposition. Therefore, the writ petition was taken up for hearing. 2. The petitioner is directed to incorporate the Secretary (Revenue) A & N Administration as a respondent to the writ petition. The petitioner is also directed to amend the cause title of the writ petition here and now. Since Mr. Mandal, learned Government Pleader, submits that he has the authority to represent the added respondent as well, service of notice upon the added respondent is dispensed with. 3. The case of the petitioner is that she purchased a certain plot of land being survey No. 170/1/12 at Garacharma-II, Port Blair in the year 1985 along with many others and, thereafter, it was sub-divided and the right of individual purchaser was recorded in the Record of Rights. When the petitioner was out of town, the respondents, without following any process of law, constructed a concrete road on the said plot of land. When she got the land demarcated, it was revealed that no land of the petitioner was available as the same was entirely covered by the road. The petitioner made a representation and, since the representation was rejected by the Deputy Commissioner, the petitioner has filed this writ petition. 4. The petitioner has drawn my attention to Annexure P-5, which is the order dated January 23, 2014 passed by the Tehsildar, i.e. the respondent no. 4. It appears that, after demarcating the land, it was found that there was one concrete road constructed by the Gram Panchayat, Garacharma and the revenue department was not in a position to restore the plot of land belonging to the petitioner as the same was under complete utilization for the community purpose. It has also been specifically recorded that the said path road was set apart for the utilization of community purpose and the Gram Panchayat without prior procedure has taken up the construction of the said path. 5. Ultimately, the matter went to the Deputy Commissioner, i.e. the respondent no. It has also been specifically recorded that the said path road was set apart for the utilization of community purpose and the Gram Panchayat without prior procedure has taken up the construction of the said path. 5. Ultimately, the matter went to the Deputy Commissioner, i.e. the respondent no. 2, who by an order dated August 12, 2016 had rejected the case of the petitioner, inter alia, holding that it was the responsibility of the petitioner to take care of her landed property after she had purchased the same and to properly fence the land in question which has not been done as it was lying vacant. He further recorded that there was apparently a dispute between the parties relating to the record of rights and, therefore, the Civil Court was the appropriate forum to decide any such dispute. The petitioner filed an application for review and the same was disposed of by a virtually non-speaking order without giving any reason for the rejection of the application for review. It is not clear how the question of dispute relating to rights between the parties was a relevant consideration before the respondent no. 2. 6. The learned advocate for the petitioner submits that the observations made in the order impugned that a boundary dispute cropped up at the hearing is entirely extraneous to the case made out by the petitioner. 7. I do not find any reason for the observation of the respondent no. 2 that the petitioner herself has not been able to take proper care of the landed property for saving it from encroachers. If such a reasoning is accepted perhaps it is bound to lead to a chaotic condition. No house-holder will be permitted to make complaint for any theft taken place in his house as the law enforcing agency will have the right to say that the theft had taken place because of failure on the part of the owner of the house to take adequate precautions. Such a logic is on the fact of it unsustainable particularly when the Tehsildar had specifically recorded that the Panchayat had made unauthorized construction right through the land of the petitioner as a result of which there is virtually no land left for the petitioner. 8. It is also not clear whether the respondent no. 2 had given the Panchayat any opportunity of hearing. 8. It is also not clear whether the respondent no. 2 had given the Panchayat any opportunity of hearing. Even in the order of this Court in WP No. 103 of 2016 on March 08, 2016 there is no reference to any boundary dispute being referred to the respondent no. 2 for a decision. 9. As stated above, the application for review has been disposed of by a non-speaking order. The respondent no. 2 had held that since the matter was once disposed of, he could not grant any relief to the petitioner in the said matter and upheld the order dated August 12, 2016. 10. Mr. V.D Sivabalan, learned advocate for the Panchayat, tried to impress upon the Court, without filing any affidavit-in-opposition, that the land in question is now under the municipal authorities and they are the appropriate respondents to answer the petitioner's claim. Such a submission is on the fact of it unsustainable. 11. It matters little whether the area which was under the Panchayat authorities when such construction was allegedly made by them has subsequently come within the municipal area. This question is not whether a certain area has been included in or excluded from the municipal area. Far more important matter than that is of that, as per the report of the Tehsildar, it was the Panchayat which did the initial wrong and if that be so, there is absolutely no justification in trying to pass the buck on the municipal authority merely because of the accidental inclusion of the area within the operation of the municipality. 12. For the reasons aforesaid, the orders impugned in the writ petition cannot be sustained. The respondent no. 2 in the original order dated August 12, 2016 had answered a very different issue that what was agitated by the petitioner in the earlier round of litigation as well as in the present round of application. That order does not also reflect whether the report of the Tehsildar was at all taken into consideration. 13. For these reasons, both the orders are set aside and quashed. The matter is sent back to the Administration. But this time, I direct the Secretary (Revenue), A & N Administration i.e added respondent to dispose of the representation made by the petitioner within a period of ten weeks from the date of communication of the order. 14. 13. For these reasons, both the orders are set aside and quashed. The matter is sent back to the Administration. But this time, I direct the Secretary (Revenue), A & N Administration i.e added respondent to dispose of the representation made by the petitioner within a period of ten weeks from the date of communication of the order. 14. The petitioner is directed to send a copy of the writ petition along with a copy of the representation made by her to the added respondent while communicating the order of the court. He shall give all the parties, particularly, the Panchayat and the Tehsildar an opportunity of being heard and shall verify the report made by the Tehsildar. In case it is found that the Panchayat authorities were responsible for construction of the road across the plot of land of the petitioner, the added respondent shall pass necessary and consequential order. Considering the fact that the petitioner has been running from pillar to post for a long time, the timeframe fixed by this Court shall be treated as mandatory. 15. With the directions as above, the writ petition is partly allowed. 16. There shall be no order as to costs. 17. Urgent certified copy of this order be supplied, if applied for, to the learned advocates for the respective parties upon compliance of usual formalities.