Research › Search › Judgment

Calcutta High Court · body

2025 DIGILAW 182 (CAL)

Renuka Biswas v. Lieutenant Governor

2025-02-28

ANIRUDDHA ROY, BIBHAS RANJAN DE

body2025
JUDGMENT : ANIRUDDHA ROY, J. 1. This is an intra-court mandamus appeal from the impugned judgment and order dated June 24, 2024 passed by the Hon’ble Single Bench at page 92 to the paper book. Facts:- 2. The predecessor-in-interest of the appellants/writ petitioners were allotted a piece of land measuring about 2.02 hectares bearing Survey No. 6 situated at Yeratal-Zig, Phooltala village, under Rangat Tehsil, North and Middle Andaman District (for short, the said land). The name of the predecessor being the original alottee was Sumanta Biswas, since deceased. The land was allotted in the year 1974. The licence to occupy the said agricultural land was issued on August 1, 1974, Annexure P-1 at page 28 to the paper book. 3. The physical possession of the land was made over to the predecessor-in-interest of the appellants and since then the predecessor-in-interest of the appellants were and the appellants are in continuous and uninterrupted possession of the land. At present, the land is comprises of cultivation, commercial plantation and the dwelling house. 4. predecessor-in-interest of the appellants then surrendered an area measuring about 1200 Sq.mtrs. for construction of agricultural pond and an area measuring about 20 Sq.mtrs for construction of proposed footpath out of the said total 2.02 hectares of land. At present, the land in occupation is 1.8950 hectares (for short, subject land). Appellants are residing thereat and are in possession thereof. 5. Since the time of allotment of the said land the area was full of Jarawa Tribes. The Andaman and Nicobar Police submitted a proposal for construction of a Bush Police Outpost at the village for protection of the local villagers from the Jarawa attacks. 6. A meeting was held between the police authority and the villagers when the police authorities suggested the villagers that if a portion of land is surrendered by the villagers from their own land, a permanent police outpost could be constructed for providing protection to the villagers. Accordingly, predecessor-in-interest of the appellants alongwith and another villager agreed for surrendering a portion of their respective land for construction of Bush Police Outpost but no such outpost was constructed neither any process was initiated for surrendering the land by the villagers. 7. The predecessor-in-interest of the appellants ultimately did not surrender the land and the proposal for construction of Bush Police Outpost had never proceeded further. 7. The predecessor-in-interest of the appellants ultimately did not surrender the land and the proposal for construction of Bush Police Outpost had never proceeded further. The predecessor-in-interest of the appellants ultimately renovated and/or constructed the dwelling house. 8. In view of the above, since no Bush Police Outpost was constructed and no further step was proceeded with for the same, the predecessor-in-interest along with other villagers submitted a representation dated June 9, 2011 before the police authority to the effect that there was no further requirement of police outpost as the situation had changed by that time and if any land was surrendered for the purpose of construction of the Bush Police Outpost the same may be returned to the allottee as the possession was never taken from the villagers, Annexure P-4 at page 35 to the paper book. 9. The predecessor-in-interest of the appellants Sumanta Biswas then expired on March 21, 2016. On March 23, 2022 the Tehsildar issued a Demarcation Notice in respect of land bearing survey No. 5/2 and 6/2 for an area of 0.1250 hectares and the date for demarcation was fixed on March 25, 2022 on the request of the police authority, Annexure P-6 at page 40 to the paper book. 10. The appellants then submit an application dated April 4, 2022 for issue of record entry and sketch map of land in respect of Survey No. 6/1. In response to that Patwari provided a certified copy of land bearing Survey No. 6/1 recorded in the joint name of the appellants and certified copy of Record of Rights of land bearing Survey No. 5/2 and 6/2, Annexure P-7 at page 41 to the paper book. 11. However, the authority struck out the record mentioning that the said land was set apart for the purpose of construction of Bush Police Outpost. The Patwari also provided a certified copy of the sketch map showing that the part of land adjacent on road has been illegally set apart from the land bearing Survey No. 6/1 on which a portion of dwelling house of the appellants is situated and the appellants No.1, 6 and 7 are residing therein. 12. The Patwari also provided a certified copy of the sketch map showing that the part of land adjacent on road has been illegally set apart from the land bearing Survey No. 6/1 on which a portion of dwelling house of the appellants is situated and the appellants No.1, 6 and 7 are residing therein. 12. The Estate Officer, thereafter issued two notices dated April 11, 2022 and May 24, 2022, the appellants directing them appear personally to attain the hearing on the complaint of the police authority contending that the land bearing Survey No. 5/2 and 6/2 had been recorded in favour of police department and the appellants are unauthorized occupants thereupon, Annexure P-8 at page 46 to the paper book. The appellants submit an objection dated April 10, 2023 under the Right to Information Act, 2005 before the Public Information Officer of the concerned police authority and claimed for subdivision of land. The police authorities replied thereto by a communication dated May 6, 2023, inter alia, stating that in absence of RC No. the document cannot be traced out, Annexure P-9 at pages 48-49 to the paper book. 13. The appellants thereafter obtained certified copy of the record of holding register of land of Survey No. 6/1 which was recorded in their joint name and on perusal of the same it was detected that the record of holding register shows that the predecessor-in-interest of the appellants surrendered an area of measuring about 20 Sq,mtrs for construction of footpath and also an area measuring about 1200 Sq.mtrs for construction of agricultural pond but there is no reflection of surrendering 0.1250 hectares land from Survey No. 6/2 and Survey No. 6/1. 14. In the above facts and circumstances the appellants filed the instant writ petition with the following prayers. “ i. Commanding the respondents or any of them to cancel the land measuring an area of 0.1250 Hects illegally set apart in favour of police department and restore the same with the land bearing survey No. 6/1 situated at Yeratal-Zig (Phooltala) village, under Rangat Tehsil, North Andaman District recorded in the name of the petitioners. ii. Direct the respondent authorities to act in accordance with law. iii. Any other order/orders direction/directions as YOUR LORDSHIP may deem fit and proper in the interest of justice.” 15. The writ petition was dismissed by the impugned judgment and order dated June 24, 2024. ii. Direct the respondent authorities to act in accordance with law. iii. Any other order/orders direction/directions as YOUR LORDSHIP may deem fit and proper in the interest of justice.” 15. The writ petition was dismissed by the impugned judgment and order dated June 24, 2024. Hence, this appeal 16. Pursuant to the direction made by the writ court, parties have filed and exchanged their affidavit-in-opposition and affidavit-in-reply which are on record. Parties have also filed their respective written notes of arguments, which are also on record. Submissions:- 17. Mr. Ananda Halder, learned counsel appearing for the appellants refers to Regulation 153 from the Andaman and Nicobar Islands Land Revenue and Land Reforms, Regulation, 1966 (for short, the Andaman Regulation) and submits that this is the only provision relating to surrender of land. The essential precondition for surrendering land is that a tenant may surrender his holding or any part thereof by making an application in writing to the jurisdictional Tehsildar intimating his intention to do so and by giving possession thereof whether such holding is or is not let. The other condition for surrendering is that where only part of the holding has been surrendered the Tehsildar shall apportion the assessment of the holding, in accordance with the rules made under the said regulation. 18. In the light of the provisions of the Andaman Regulation the appellants submit that at no point of time any part of the land was surrendered by the predecessor-in-interest of the appellants, as the proposal for construction of the Bush Police Outpost was never carried out further at the relevant point of time and the respondents in their affidavit-in-opposition also could not disclose any such document in writing submitted by the predecessor-in-interest of the appellants surrendering any portion of his land. 19. With further reference to the said Regulation 153 from the Andaman Regulation, learned counsel for the appellants submits that one of the essential condition to show a land has been surrendered is giving up possession thereof in favour of the State. Till date, the admitted position is that, the appellants are in possession and at no point of time predecessor-in-interest of the appellants have delivered the possession of the subject land. 20. Till date, the admitted position is that, the appellants are in possession and at no point of time predecessor-in-interest of the appellants have delivered the possession of the subject land. 20. Learned counsel for the appellants further submit that since the proposal of the construction of the Bush Police Outpost was not carried out any further, the predecessor-in-interest of the appellants alongwith other villagers submitted the joint representation dated June 9, 2011, Annexure P-4 at page 35 to the paper book requesting the police authority not to construct any further police outpost as proposed, as the possession of the land was also not taken over. 21. In the light of the above submissions, learned counsel for the appellants submit that the appeal and the writ petition should be allowed in terms of reliefs claimed therein. 22. Ms. Babita Das, learned counsel appearing for the respondent Nos. 1 to 3 refers to the affidavit-in-opposition filed on behalf of her client and submits that in compliance of the provisions under Regulation 153 of the Andaman Regulation, the predecessor-in- interest of the appellants had duly surrendered the subject land for the purpose of construction of Bush Police Outpost otherwise he ought not to have signed the representation dated June 9, 2011. It was the conscious decision of the predecessor-in-interest of the appellants. She further submits that the decision has been taken by the Administration that there has been a requirement of land for the police department at the area concerned and the subject land has been decided to be taken over for the use of the police department. 23. She further submits that in 2011 when the police department proceeded for construction of police outpost on their recorded land and the demarcation of land was taken up, the appellants did not allow the police department to carry out the work. The attached old patta pass book of Sumanta Biswas, since decease has clear remarks of surrender of land. 24. On the basis of available records, since it appeared that the portion of the land was surrendered by Sumanta Biswas in favour of the Administration for construction of police outpost and since the appellants are unauthorized occupants thereupon, a case for eviction has been initiated dated April 11, 2022 against the appellants. 25. Referring to paragraphs 9 to 14 from the affidavits-in- opposition, Ms. 25. Referring to paragraphs 9 to 14 from the affidavits-in- opposition, Ms. Das, learned counsel submits that the original recorded tenant Sumanta Biswas expired on March 21, 2016 and his legal heirs got mutated their names in respect of the land for an area of 1.7703 hectares classified as P-I at the village. It is thus clear that, the land was surrendered by the tenant unconditionally and subsequently the same was allotted to the police department. Therefore, any further occupation on the land by the appellants are unauthorized and necessary case of eviction has already been initiated by the jurisdictional Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. 26. Ms. Babita Das, learned counsel appears for the Administration of the Islands prays for dismissal of the writ petition. 27. Mr. Shatadru Chakraborty, learned senior counsel appears for the respondent No. 4 to 6, on instruction submits that the land surrendered by the predecessor-in-interest of the appellants has been earmarked for the police department for construction of Police Outpost. He further submits that any further occupation of the appellants on the land is illegal and unauthorized. The appellants are liable to be evicted. Save as above, he has adopted the submission made by Ms. Babita Das, learned counsel appears for the Administration of the Islands. Decision 28. Upon hearing the rival contentions of the parties and upon perusal of the materials on record, it appears to this Court that to decide the issue whether the subject land was at all surrendered by the predecessor-in-interest of the appellants, the only guiding provision is Regulation 153 of the Andaman Regulation. 29. The sole issue is whether the provisions laid down under Regulation 153 of the Andaman Regulation has been strictly complied with or not. 30. Regulation 153 of the Andaman Regulation is quoted below:- “153. (1) Subject to the provisions of the regulation, a tenant may surrender his holding or any part thereof by making an application in writing to the Tahsildar intimating his intention to do so and by giving possession thereof whether such holding is or is not let. (2) Notwithstanding the surrender, unless the tenant applies before the first day of February in any year he shall be liable to pay the land revenue for the holding for the agricultural year ext following the date of surrender. (2) Notwithstanding the surrender, unless the tenant applies before the first day of February in any year he shall be liable to pay the land revenue for the holding for the agricultural year ext following the date of surrender. (3) Where only a part of the holding has been surrendered the Tahsildar shall apportion the assessment of the holing, in accordance with the rules made under this Regulation.” 31. On a meaningful and harmonious reading of Regulation 153, it appears to this Court that the procedures laid down thereunder which are necessarily and strictly to be complied with are, inter alia:- (i) A tenant may surrender his holding or any part thereof by making an application in writing to the Tehsildar intimating his intention to do so and; (ii) The surrender should be followed by giving possession of land whether such holding is or is not let. 32. In the litmas test under the said provisions of Regulation 153, this Court is of the considered view that unless from the facts and circumstances of the instant case, the said two tests are primarily satisfied, there cannot be any presumption of law which would operate against the appellants or his predecessor in favour of surrendering of land. The same has to be read and understood coupled with the existence of the essential facts and records. 33. In the facts of the instant case, admittedly, there is no document to show that the predecessor-in-interest of the appellants in writing submitted any application with the intention to surrender the subject land, therefore, the question of holding any presumption or the rebuttal thereof did not and could not, does not and cannot arise. No person shall be deprived of his property save by authority of law, is an essential basic structure of the Constitution of India guaranteed under Article 300-A of the Constitution of India. The only exception is doctrine of eminent domain when the State is authorized for acquisition of estates/lands for public purpose, that too, with under the authority of law and for such purpose the law providing for acquisition of estate are saved under Article 31A of the Constitution of India. The only exception is doctrine of eminent domain when the State is authorized for acquisition of estates/lands for public purpose, that too, with under the authority of law and for such purpose the law providing for acquisition of estate are saved under Article 31A of the Constitution of India. In such a situation also every provision of the relevant statues while acquiring the land by the State has to be strictly followed with its every step, failing which the entire process of acquisition of land by the State stands vitiated. 34. The expression “save by authority of law” expressed under Article 300 A of the Constitution of India denotes that the executive action of the State cannot deprive a person of his land without specific legal authority. 35. On the analysis of the facts in the instant case, the Administration of the Islands have failed to produce any application in writing available on records showing that the predecessor-in- interest who was admittedly a tenant in respect of the subject land had applied for surrendering his land. From the time of proposal of construction of Bush Police Outpost and till 2011 when the joint representation was submitted by the villagers including the predecessor-in-interest of the appellants, a substantial period of time had elapsed and the possession of the subject land remained with the predecessor-in-interest of the appellants. It is also the specific stand taken by the Administration in its affidavit-in-opposition that possession was never taken from or delivered up by the predecessor- in-interest of the appellants in respect of the subject land and the appellants being successors-in-interest are still dwelling on the subject land and are in continuous and uninterrupted possession thereof. 36. Records therefore, shows none of the said two essential pre- condition had been satisfied in terms of Regulation 153 of the Andaman Regulation. In absence of compliance of the said two essential and mandatory pre-conditions, no presumption could or can arise in support of the contention of the Administration of the Islands that subject land was earmarked for and granted to the police department for construction of any police outpost, upon being surrendered by the predecessor-in-interest of the appellants. 37. In absence of compliance of the said two essential and mandatory pre-conditions, no presumption could or can arise in support of the contention of the Administration of the Islands that subject land was earmarked for and granted to the police department for construction of any police outpost, upon being surrendered by the predecessor-in-interest of the appellants. 37. In absence of strict compliance of the said two tests laid down under Regulation 153 of the Andaman Regulation, the said representation dated June 9, 2011 submitted by the villagers including the predecessor-in-interest of the appellants would have no relevance and bearing in the facts of this case far to speak of to give rise to any presumption that unless the predecessor-in-interest of the appellants would surrender his land, he would not have signed and submitted the said representation dated June 9, 2011. 38. We are fortified in our view by the oft-quoted authority of the Privy Council, In the matter of: Nazir Ahmed vs. King Emperor reported at AIR 1936 Privy Council 253. In the said decision, in paragraph No. 2, Their Lordship had observed thus:- “Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden” 39. We would like to emphasys in un equivocal terms that whenever an authority departs from following a mandatory provision obligation provided in law, the onus is for it to furnish an explanation for the same. In the facts of the instant case, it was incumbent on the Administration to show by disclosing evidence from records that the predecessor-in-interest has submitted an application in writing with an intention to surrender the subject land and the such surrender had been followed by delivering possession of the subject land in favour of the Administration, to which the Administration has miserably failed to discharge its burden. 40. The impugned order passed by the Hon’ble Single Bench shows that the same was proceeded purely on the basis of alleged circumstantial evidence and presumption. Two essential tests under Regulation 153 of the Andaman Regulation, as narrated above were required to be satisfied as a mandatory precondition of surrender. 40. The impugned order passed by the Hon’ble Single Bench shows that the same was proceeded purely on the basis of alleged circumstantial evidence and presumption. Two essential tests under Regulation 153 of the Andaman Regulation, as narrated above were required to be satisfied as a mandatory precondition of surrender. In absence of any single document in writing that the predecessor-in- interest of the appellants expressed his willingness in writing by making necessary application to surrender the land, any inference that the land was surrendered could not or should not be arrived at on the basis of any alleged circumstantial evidence or presumption, unless direct evidences are available on record. Similarly the second essential test is the delivery of possession with the submission of application admittedly has not been satisfied since the appellants still are in possession of the subject land. The twin tests under Regulation 153 of the Andaman Regulation cannot be divorced from each other. If the twin tests are satisfied with the direct evidentiary materials, only then it can be construed that the land was surrendered. The twin tests must happen contemporaneously and simultaneously. 41. When the mandatory requirement of law is prescribed under the relevant provisions of law without compliance whereof, the entire action stands vitiated, without jurisdiction and bad in law, the Court cannot infer compliance of such mandatory provision by presumption or on the basis any alleged circumstantial evidence unless direct evidences are on record corroborating compliance of such mandatory requirement of law. 42. In view of forgoing reasons and discussions, the impugned judgment and order dated June 24, 2024 sands set aside. 43. The setting apart of the subject land measuring 0.1250 hectares in favour of the police department or any other State authority being Survey No. 61/1 situated at Yeratal (Zig), Phooltala Village, under Rangat Tehsil, North and Middle Andaman District, if any, stands set aside and quashed. 44. The said land bearing Survey No. 6/1 measuring about 0.1250 hectares shall remain recorded in favour of the appellants. 45. 44. The said land bearing Survey No. 6/1 measuring about 0.1250 hectares shall remain recorded in favour of the appellants. 45. The jurisdictional Tehsildar and any other jurisdictional authority/authorities are directed to rectify and correct the relevant and connected land records showing that the said 0.1250 hectares land bearing Survey No. 6/1 stands in the name of the appellants forthwith but positively within a period of six weeks from the date of the communication of this judgment and order, if such land records contain any other recording other than the names of the appellants. 46. Eviction proceeding, if any, initiated against the appellants un respect of the said 0.1250 hectares of land being Survey No. 6/1 stands set aside and quashed. 47. With the above findings and directions, the instant appeal MAT/53/2024 stands allowed, without any order as to costs. 48. Consequently, the writ petition WPA/838/2023 stands allowed on the above terms. I agree, (Bibhas Ranjan De, J.)