Smt. Archana Singh And ORS. v. The Ministry Of Home Affairs And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR *** WPA/12/2023 Smt. Archana Singh and others Vs.
The Ministry of Home Affairs and others Ms. Anjili Nag ... for the petitioners Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents September 19, 2023 [SR] Item No.3 Despite peremptory direction passed upon the respondents to file the opposition on or before 31st August, 2023, the learned advocate for the Administration submits that, because of unavoidable and unforeseen circumstances, the same could not be affirmed and/or filed within the extended time. However, the affidavit-in-opposition is ready and he seeks leave to file the same.
Considering the fact that an opportunity to defend must be extended to the litigant, the affidavit-in-opposition filed, in Court, today is accepted and taken on record.
Learned advocate for the petitioner submits that her client does not intend to file reply to the same and she prays for the matter to be taken up on merit.
This case has a chequered history. The petitioner has been subjected to several rounds of litigations concerning the regularization of the excess land as Pre-1942 Settlers. It is not in disputed that petitioner is in possession of excess land and was
using, occupying and possessing the same uninterruptedly from posterity to posterity.
Subsequently, the Ministry of Home affairs promulgated a scheme on 15th July, 2003 for regularization of the excess of land in possession of a Pre-1942 Settlers within the Port Blair municipal areas subject to the conditions that the excess land shall be regularized only to the extent that the concerned occupant and/or their descendents have maintained their continued possession till date and the Andaman and Nicobar Administration shall carry out a survey to identify the Pre-1942 Settlers/ their descendents and the exact area of excess land in their possession up to 1961. There is no other conditions attached to the said scheme which at best can be termed as a beneficial and/or a welfare scheme for the purpose of Pre-1942 Settlers who have been occupying the excess land in the Port Blair municipal area.
Obviously, such scheme gives impetus to the petitioner to apply before the authority for regularization of the excess land which was initially denied by the competent authority on the score that the approval of the Ministry is inevitable. The petitioner approached the court raising the issue that approval of the Ministry for regularization of the excess land under the said scheme is not mandatory and therefore the administration must take up the call and decide the said application without waiting for an approval from the Ministry of Home Affairs.
The said Writ Petition (WP/84/2019) was disposed of on March 11, 2019 directing the Deputy Commissioner, South Andaman to take steps for regularization of the excess land in
possession of the petitioner, the description whereof is given in the writ petition, within a stipulated time. It was categorically observed that there is no necessity of seeking any permission/approval from the Ministry under the said scheme. Despite the same there was no response from the Administration which constrained the petitioner to file a contempt application before this Court. In the affidavit of compliance, the Administration took a stand that upon submission of the affidavit by the petitioner with regard to surrendering the excess land, the Administration will process the file for regularization of the excess land held by the petitioners in compliance of the order passed by the Writ Court.
Amidst the pendency of the contempt application the Deputy Commissioner, South Andaman District passed an Order No. 3967 dated 17.08.2022 rejecting the claim of the petitioner primarily on the ground that the petitioners were found to have diverted the allotted land illegally without the necessary permission of the competent authority by using the same for commercial purpose.
The aforesaid order of the Deputy Commissioner was filed in a contempt application and ultimately the contempt application was disposed of granting liberty to the petitioner to assail the said order as it constitute a fresh cause of action. The instant writ petition is the resultant effect of such observation made by the learned Single Bench in the contempt application. A point is sought to be raised before this Court that the authorities cannot raise an issue which is completely de hors the scheme framed by the Ministry nor can impose any conditions which are conspicuously absent in the said scheme.
As indicated above, the only conditions imposed in the said scheme relate to the continuous possession of the excess land and survey to be carried out to identify a Pre-1942 Settlers and the exact area of the excess land in their possession up to 1961. The precursor to the said condition is exposit from the said scheme dated 15th July, 2003 that the Hon'ble Prime Minister during his visit to Andaman and Nicobar Islands in January, 2003 noticed the grievance of the Pre-1942 Settlers within the Port Blair municipal areas and the conscious policy decision was taken by the Government to regularize the excess land occupied and possessed by the Pre-1942 Settlers.
The conditions appears to be rational and reasonable as a person who is not in possession or lost possession subsequently of the excess land, may not be brought within the ambit of the said scheme. The condition is laudable to the extent that the possession must remain with Pre-1942 settlers or through their decedents as on the date of the said scheme. The further condition imposed therein envisages the obligation of the Administration not only to carry out the survey for the purpose of identification of Pre-1942 Settlers but also to ascertain the exact area of excess land in possession of such settlers or their descendent up to 1961.
The authority cannot import nor include any conditions which is conspicuously absent in the said welfare scheme framed by the Ministry of Home Affairs. Such benevolent scheme is to give succor to Pre-1942 Settlers occupying the excess land and continuing with the possession thereof and, therefore, the Administration has to keep in mind the purpose and object sublime the framing of such scheme. Any strict interpretation
which would frustrate the very purpose of the said scheme should be eschewed.
The Administration is not suppose to take a stand which is nonexistent in the scheme nor should interpret the scheme in such manner which would render it unworkable. In the event, the language used in the said scheme are capable of more than one interpretation, the interpretation which lean in favour of the beneficiary should be adopted.
Since the application for regularization of the excess land was taken out under the said scheme, the authority cannot take a shelter under any other conditions which is not incorporated therein but have to satisfy its conscience on the peripheral of the conditions imposed therein.
Whether the land is used for commercial purpose or the purpose for which it is not so recorded, cannot be a ground under the scheme as the framer of such scheme was conscious with the object and purpose of framing such scheme to regularize the excess land occupied and possessed by the Pre1942 Settlers. The authorities cannot travel beyond the periphery of the scheme nor should impliedly import something which is not incorporated therein and any such action which appears to the court to have been done beyond the circumference of the said scheme, there is no fetter on the part of the Court to set aside such decision of the authorities.
The Deputy Commissioner has exceeded the jurisdiction or powers conferred under the said scheme and therefore the decision cannot be sustained. Accordingly, the impugned order
passed by the Deputy Commissioner is hereby quashed and set aside.
The Deputy Commissioner is directed to consider the matter afresh in the light of the observations made hereinabove within six weeks from the date of the communication of this order.
The WPA/12/2023 is disposed of accordingly.
No order as to costs.
Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.
( Harish Tandon, J. )