Shri A.Zaheed v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR *** MAT/2/2023 Shri A. Zaheed Vs.

The Andaman and Nicobar Administration and others Mr. KMB Jayapal .... For the appellant Mr. V.D.Sivabalan Mr. Arun S Kumar ... for the Administration Ms. Supreet Sharma ... for the pvt. Respondent February 13, 2023 [SR] Item No.9 Heard Mr. KMB Jayapal, learned counsel for the appellant, Mr. V.D.Sivabalan, learned Counsel for the respondents and Ms. Supreet Sharma, learned counsel for the private respondent, who undertakes to file vakalatnama by Friday (17.02.2023).

The appeal arises out of the order passed by the Hon'ble Single Judge in WPA/159/2014 on 16th December, 2022.

The brief fact of the case relevant for disposal of this appeal is that the mother of the petitioner was the recorded tenant of about 200 sq.mtrs of land in Aberdeen Village in this islands.

There are some more land of about 125 sq.mtrs which was species of government land and situated contiguous to land of the petitioner's mother with structure standing

thereon. Mother of the petitioner claimed to be in possession of the that excess land prior to 1942. Claiming settlement of the aforesaid excess land of 125 sq.mtrs, the petitioner's mother approached the revenue authority. However, she died in 1997.

While the matter stood thus, on 12.02.2014, the Tehsildar and his staff entered into the alleged excess land, demolished the part of the structure standing thereon and threatened to demolish rest with the help of the electricity department.

The petitioner was obliged to approach this Court by filing WP NO.44 of 2014, which was disposed of on 14.02.2014 relevant part of which reads thus - "I think that this question of the alleged 125 square metres 'excess land' occupied by a pre-1942 settler (the writ petitioner's mother) should be examined by the Deputy Commissioner, South Andaman district within eight weeks of communication of this order by hearing the writ petitioner and all interested parties, by a reasoned order.

It would be open to the writ petitioner to rely on the writ petition and its annexures along with any other documents to prove his case but with copies of such documents, if not already served, to the Administration. Till the decision is made and communicated by the Deputy Commissioner and for a further period of three weeks from that date, the parties will maintain status quo regarding the alleged excess land of 125 square metres and any structure standing thereon."

Pursuant to the order passed by this Court, the competent authority of the revenue department i.e. the Deputy Commissioner took steps and passed order dated 17.06.2014 rejecting the claim of regularisation of excess land of 125 sq.mtrs under the scheme of Ministry of Home

Affairs dated 15th July, 2003. The said order was impugned in the WP No. 159 of 2014, order passed in which is challenged in the present appeal.

The Hon'ble Single Judge relying on the decision passed by this Court on 14.02.2014 in WP NO.44 of 2014 held that the mother of the petitioner came into possession of the alleged excess land in the year 1961 and in view of the backdrop of the undisputed finding of fact as arrived at by the Deputy Commissioner, the petitioner could not have any claim as made out in the writ petition.

The main allegation of the petitioner in the writ petition was that the document and the survey report relied upon by the Deputy Commissioner were not made available to him and he was not given adequate opportunity to present his case along with the documents, rent receipt etc available with him. In view of such fact, there was violation of principles of natural justice.

Said question of violation of principles of nature justice was, however, eschewed by Hon'ble Single Judge on the ground that the finding arrived at by the Deputy Commissioner is based on facts.

Principles of natural justice being a salutary principle of adjudication by a judicial or quasi-judicial authority is a sacrosanct principle to be observed in form as well as in spirit. Giving a notice alone to an affected party without giving him further opportunity to adduce evidence to

substantiate his claim is half-hearted compliance of principles of natural justice. Similarly reaching a decision by not giving any opportunity to the affected party to inspect the material if the materials are voluminous or without giving copy of the materials to the affected party/parties specially in a proceeding involving property right is not sufficient compliance of principles of natural justice.

In view of such fact, we set aside the impugned order and remit back the matter to the Deputy Commissioner, respondent no.2, for initiation of proceeding afresh from the threshold. The parties including the petitioner and the private respondent shall be given adequate notice for appearance and they shall be given adequate opportunity of being heard in the matter and shall be given opportunity to adduce their respective evidence in their possession which shall be accepted though not in accordance with Evidence Act but in accordance with the principle underlying the Evidence Act.

If the authority of the state is to rely on any document, the parties shall be given liberty to inspect the documents if the documents are voluminous or any register or books in the possession of the authority, copy of which cannot be parted with and if the copy of the documents can be supplied to the parties, such documents should be supplied to the parties in advance before reaching a decision on the point by giving opportunity of adducing rebuttal evidence by the parties.

Till the completion of the proceeding by the respondent no.2, status quo shall be maintained by the parties in respect of the land in question.

( Chitta Ranjan Dash, J.) ( Md. Nizamuddin, J. )