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2024 DIGILAW 817 (CAL)

Ganga Din v. Andaman And Nicobar Administration

2024-04-15

BIBHAS RANJAN DE

body2024
JUDGMENT : Bibhas Ranjan De, J. 1. Challenge is the order dated 27.04.2023 passed in RC No. 1399/2017/TPB by Tehsildar, Port Blair Tehsil. 2. By the impugned order Tehsildar, Port Blair directed the petitioner to vacate the land being survey no. 19/5 measuring 83.40 sq.mtrs. (for short subject land) classified as house site situated at Doodhline village as the building constructed by the petitioner over his recorded land in survey no. 94 illegally occupying the entire land of survey no. 19/5. 3. Respondent No.4 herein approached the respondent No.3 alleging inter alia that the petitioner unauthorizedly encroached the subject land owned by her. 4. Petitioner herein approached the court in writ petition WP No. 78 of 2019 which was disposed of directing the respondent no.3 herein to conclude the RC No. 1399/2017/TPB within a period not beyond eight weeks, affording opportunity of hearing to all parties. 5. It is further alleged that Respondent No.3 issued the order on 16.03.2021 in connection with RC No. 1399/2017/TPB directing the petitioner to vacate subject land on or before 30.03.2021 otherwise he would be removed by the subordinate revenue officer on 31.03.2021. 6. Writ petitioner again challenged that order passed by the Respondent No. 3 in WPA/135/2021 which was also disposed of by setting aside the order dated 16.03.2021 passed by Respondent No.3 in same RC Case No. with a liberty to the petitioner to take exception to the demarcation report dated 09.03.2021 within a specified period. 7. Accordingly, writ petitioner submitted written objection in form of exception against the alleged demarcation report taking various grounds. 8. Respondent No. 3, thereafter, passed the impugned order in connection with same RC Case on 27.04.2023 but without adjudicating the issues raised by the petitioner in his objection dated 01.03.2023. 9. It is specific case of the writ petitioner that the respondent No. 3 did not consider that petitioner constructed the building over his recorded land survey No. 19/4 within the statutory period much before 2017. 10. It is further alleged that demarcation report clearly indicates that demarcation was held without any notice to the writ petitioner. It is further alleged that in the affidavit-in-opposition filed by the respondent No. 4 nothing has been disclosed about alleged date of dispossession. 11. 10. It is further alleged that demarcation report clearly indicates that demarcation was held without any notice to the writ petitioner. It is further alleged that in the affidavit-in-opposition filed by the respondent No. 4 nothing has been disclosed about alleged date of dispossession. 11. In opposition to that, the case of the private Respondent No. 4 is that she is the owner of the subject land and after obtaining house loan from State Bank of India she visited her property in survey No. 19/5 but she found petitioner carrying out a construction over the subject land. According to report and sketch map of revenue authorities it is seen that the writ petitioner occupied the entire landed property of the respondent no. 4. Respondent No. 4 filed a complaint before Tehsildar for taking action against the petitioner. The Patwari and Surveyor conducted field inspection and found illegal occupation of the subject land by the petitioner. 12. Tehsildar registered a case being RC Case no 1399/2017/TPB based on field inspection report and issue a stay order against the petitioner in respect of subject land, but petitioner carried out construction on the subject land. 13. On 18.08.2017 Respondent No.3 issued an order directing the writ petitioner to remove the illegal occupation over the subject land. Writ petitioner challenged the said order before the Hon’ble High Court and that was disposed of with a direction upon the respondent no. 4 to dispose of the matter within eight weeks affording opportunity of hearing to the parties. Pursuant to that order respondent No. 4 again issued notice for fresh demarcation which was held in presence of all parties including the petitioner who signed the report. Ultimately Respondent No. 3 passed an order on 06.03.2019 directing the petitioner to vacate the subject land of the respondent no.4 who was dispossessed within a period of two years. 14. Again writ petitioner filed one writ petition being No. 135 of 2021 challenging the said order of respondent No.3 on the ground that the demarcation report was not supplied to the petitioner. That writ petitioner was disposed of directing the respondent No. 3 to afford an opportunity of hearing who was also given liberty to file written objection against demarcation report. Accordingly written objection was filed by the writ petitioner on 01.03.2021. 15. That writ petitioner was disposed of directing the respondent No. 3 to afford an opportunity of hearing who was also given liberty to file written objection against demarcation report. Accordingly written objection was filed by the writ petitioner on 01.03.2021. 15. In compliance with the order of Hon’ble court in WP No. 135 of 2021 respondent No.3 again passed order directing writ petitioner to vacate the unauthorized occupation over the subject land in favour of the respondent no. 4. 16. The instant application has been filed challenging order dated 27.04.2023. ARGUMENT ADVANCED 17. Mr. KMB Jayapal, learned advocate on behalf of the petitioner has contended that the respondent No.3 did not adjudicate the issues raised by the petitioner in his written objection to the demarcation report and thereby violated the direction of the Hon’ble Court passed in WP No.135 of 2021. 18. Mr. Jayapal has contended that in the written objection filed on behalf of the petitioner it was alleged that the petitioner constructed a house in year 2008 after obtaining sanction plan on the land bearing survey No. 19/4 in the year 2007 and therefore respondent No.3 has no jurisdiction to adjudicate the issue under the Regulation 161 of Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations (for short Regulation 1966). 19. Mr. Jayapal has further raised the issue in his written objection that Surveyor did not follow the yardstick as required to hold demarcation on the basis of ETS. 20. Mr. Jayapal has argued that respondent No.3 failed to apprise the fact that the land of the petitioner on survey No. 19/4 is situated adjacent to the subject land without any boundary mark. Mr. Jayapal, therefore, has submitted that if there is any boundary dispute between the parties that cannot be adjudicated by the respondent no.3 within the meaning of Section 96 of Regulation 1966. 21. Before parting Mr. Jayapal has submitted that all the issues referred to above have not been adjudicated by the respondent no. 3 in the order impugned in this writ application. 22. Whereas, Mr. Rakesh Kumar appearing on behalf of the private respondent No.4 has submitted, inter alia, that the fresh demarcation pursuant to the order of the Hon’ble High Court in WP No. 135 of 2021, was held in presence of writ petitioner who signed the report. 23. Mr. 3 in the order impugned in this writ application. 22. Whereas, Mr. Rakesh Kumar appearing on behalf of the private respondent No.4 has submitted, inter alia, that the fresh demarcation pursuant to the order of the Hon’ble High Court in WP No. 135 of 2021, was held in presence of writ petitioner who signed the report. 23. Mr. Rakesh Kumar has further submitted that the writ petitioner encroached the entire subject land leaving no chance of boundary dispute. That apart, Mr. Rakesh Kumar has submitted that respondent No.4 was dispossessed within the period of limitation prescribed under Section 161 of the Regulation 1966. Accordingly, Mr. Rakesh Kumar has submitted that the instant petition is liable to be dismissed as respondent No.3 addressed all the issues raised by the petitioner in his written objection dated 01.03.2023. 24. Ms. Babita Das, learned counsel appearing on behalf of the official respondents has stated all the events chronologically and supported the argument advanced on behalf of respondent No.4. FINDINGS OF THIS COURT 25. During first round of litigation the Coordinate Bench of this Court sitting on writ petition No. 078 of 2019 came across an order dated 18.08.2017 passed by the learned Tehsildar, Port Blair giving direction to remove the illegal occupation made over the land of the petitioner relying upon the report of the field staff. Hon’ble Coordinate Bench virtually set aside the order dated 18.08.2017 with a direction upon the learned Tehsildar to pass a reasoned order upon hearing a submission made on behalf of the parties and upon perusal of the documentary evidence produce by them and communicate such decision to the parties within a fortnight thereafter. 26. Pursuant to the direction of the Hon’ble Court in WP No. 078 of 2019, learned Tehsildar, Port Blair passed an order dated 16.03.2021 directing the petitioner to vacate unauthorized occupation over the subject land in connection with survey no 19/5 recorded in favour of the respondent No.4. 27. 26. Pursuant to the direction of the Hon’ble Court in WP No. 078 of 2019, learned Tehsildar, Port Blair passed an order dated 16.03.2021 directing the petitioner to vacate unauthorized occupation over the subject land in connection with survey no 19/5 recorded in favour of the respondent No.4. 27. During second round of litigation before this Court petitioner again challenged the order of learned Tehsildar, Port Blair passed on 16.03.2021 in the writ application being No. 135 of 2021 wherein Hon’ble Coordinate Bench passed the following order: “Considering the facts and circumstances of this case and in the interest of the natural justice, the aforesaid impugned order dated 16th March, 2021 is set aside and the matter is remanded back to the respondent authority concerned to pass a reasoned and speaking order afresh in accordance with law after giving opportunity of hearing to the parties and the interested parties of their authorized representative. This order has been passed on condition that petitioner shall file objection if any, before the authority concerned against the aforesaid demarcation survey report on 3rd March, 2023, and if such objection is filed by the petitioner within the time stipulated herein, the respondents authority concerned shall pass fresh speaking order in accordance with law by 31st March, 2023 after giving an opportunity of hearing to the petitioner and interested party positively without granting any adjournment to any of the parties and in case petitioner does not cooperate with the proceeding and prays for adjournment, in that event, respondent authority will be free to pass ex-parte order. Till any fresh decision is taken by the authority concerned subject to the terms and condition referred herein above, there will be an order of status quo over the plot in question. In case of non filing of the objection to the afroresaid survey report by the petitioner within the time stipulated herein this order will have no force. Fresh order to be passed shall be communicated to the petitioner and the interested parties within two weeks from the date of passing such order. With this observation and direction, this Writ Petition being WPA/135/2021 in disposed of.” 28. Fresh order to be passed shall be communicated to the petitioner and the interested parties within two weeks from the date of passing such order. With this observation and direction, this Writ Petition being WPA/135/2021 in disposed of.” 28. Therefore, in writ petition being No.WPA/135/2021 Hon’ble Coordinate Bench provided liberty to the petitioner to file objection against the demarcation survey report dated 03.03.2023 and on receipt of that objection, authority was directed to pass speaking order in accordance with law after giving opportunity of hearing to the petitioner and till that period an order of status qua was promulgated qua subject land. 29. It appears that petitioner filed written objection raising three issues as follows:- 29.1. That the petitioner constructed house in the year 2008 after obtaining sanction plan in the year 2007 and accordingly the written complaint submitted by respondent No.4 as barred under Section 161 of the Regulation 1966. 29.2. That the Surveyor did not follow yard stick as required to hold demarcation on the basis of ETS. 29.3. That there was a boundary dispute between the land occupied by the petitioner and that of the respondent No.4 and the adjudication of the said boundary dispute is exclusive domain of Deputy Commissioner, Andaman & Nicobar Administration not within the jurisdiction of learned Tehsildar within the meaning of Section 96 of the Regulation 1966. 30. After careful scrutiny of the impugned order dated 27.04.2023 I find that learned Tehsildar, Port Blair did not adjudicate any of the above issues by any single sentence and on this score the order dated 27.04.2023 is not sustainable in law and not being ratified by the principle of natural justice. 31. Accordingly, the order dated 27.04.2023 stands set aside. 32. Learned Tehsildar, Port Blair is requested to address all the aforesaid issues raised in the written objection dated 01.03.2023 filed by the petitioner in compliance with the Hon’ble Coordinate Bench in WPA/135/2021, and adjudicate those issues, if required, on the evidence adduced by the parties and after giving them an opportunity of hearing, but without giving any unnecessary adjournment. 33. Learned Tehsildar, Port Blair is also requested to adjudicate the issues by giving direction upon the parties to produce documents and also to adduce evidence, if required. 34. Learned Tehsildar, Port Blair is requested to disposed of the application preferably within eight weeks. 33. Learned Tehsildar, Port Blair is also requested to adjudicate the issues by giving direction upon the parties to produce documents and also to adduce evidence, if required. 34. Learned Tehsildar, Port Blair is requested to disposed of the application preferably within eight weeks. Both the petitioner and the respondent No.4 are directed to appear before the learned Tehsildar, Port Blair on 18.04.2024. 35. With the aforesaid observations and directions the instant writ petition stands disposed of. 36. Parties to act on a server copy of this judgement duly collected from the official website of the Hon’ble High Court at Calcutta. 37. Urgent photostat certified copy of this judgement, if applied for, shall be supplied to the parties upon compliance of all formalities.