M.Manimaran v. The Andaman And Nicobar Administration And Another

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/18/2025 M. Manimaran Vs.

The Andaman and Nicobar Administration and Another Mr. K. M. B. Jayapal ... for the petitioner Ms. Babita Das ... for the respondents March 21, 2025 [AKB] Item No.2 1.

The instant writ petition has been filed, inter alia, challenging order dated 30th December 2024 passed by the Tehsildar, Sri Vijaya Puram under the provisions of Section 202 (1) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966 (hereinafter referred to as the said Regulations).

2.

It is the petitioner's case that the petitioner has purchase a licensed land bearing survey no. 33/4 measuring an area Sq.mtrs., situated at Prothrapur village under Port Blair Tehsil, District South Andaman along with semi RCC house, for and at a sale consideration mentioned in the sale agreement dated 26th August 2021, from one Armugam since deceased.

3.

Petitioner claims that Armugam as aforesaid was licensee of the land and the petitioner had acquired his interest over the aforesaid property

through a sale agreement dated 26th August 2021, wrongly recorded as 26th October 2021, in paragraph 4 of the writ petition.

4.

According to the petitioner he had obtained a sanctioned building plan from the Gram Panchayat, Porthrapur and such building plan was also certified by the License Surveyor, Port Blair Municipal Council, Engineer, having registration no. 32/S. The petitioner claims the Tehsildar, Sri Vijaya Puram by his order 30th December 2024, without affording the petitioner an opportunity of hearing by placing reliance on an enquiry report which had also not been supplied to the petitioner, has directed the petitioner to vacate the unauthorised occupation of the property in question being the Government revenue land being survey 33/1, Protharpur village. 5.

Mr. Jayapal, learned advocate appearing in support of the instant writ petition by placing before this Court the communication dated 20th March 2025 addressed to the Deputy Commissioner and the Tehsildar, Sri Vijaya Puram, South Andaman which has been annexed to the supplementary affidavit filed in Court, would submit that the petitioner has already in terms of Section 202(8) of the said Regulation notified its intent to institute a suit and having regard to the provisions contained in Section 202 (8) of the said Regulation, the Tehsildar should

desist from enforcing the order impugned for a period three months. He would submit that even if the petitioner has been found to be an encroacher, he has a right to retain such land.

6.

In the circumstances the petitioner prays that appropriate orders may be passed, protecting the petitioner's interest during the pendency of the notice period i.e. a period of three months, in terms of the provisions contain in the said Section 202 (8) of the said Regulation.

7.

Ms.

Babita Das, learned advocate and Government Pleader would, however, submit that the petitioner has been found to be in unauthorized occupation of the Government revenue land. In support of her contention she has placed the revenue records. She would also submit that there is an appellate provision. However, the petitioner instead of invoking the appellate remedy has approached this Hon'ble Court. No reliefs should be afforded to petitioner.

8.

Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I find admittedly in this case by an order dated 30th December 2024 the petitioner has been found to be in unauthorized occupation of Government revenue land bearing survey no. 33/1 situated at Prothrapur village under

Sri Vijaya Puram Tehsil. Accordingly, the petitioner has been directed to vacate the unauthorized occupation from the Government revenue land.

9.

In this context I may note that the said Regulation provides for the procedure of removal of persons in unauthorized occupation of revenue land. Section 202 of the said Regulation, inter alia, provides that a person found to be in unauthorized occupation may be evicted by the Tehsildar in the mode and manner provided for therein. Admittedly, the Tehsildar has invoked the provisions of Section 202 (1) of the said Regulation. Incidentally SubSection (8) of the Section 202 confers a right on the persons resisting eviction/removal to institute a suit to establish his right before a civil Court by delivering a notice to the Tehsildar. Sub-Section (8) of Section 202 further provides that in the event any such notice of any intention to institute a suit is delivered to the Tehsildar, the Tehsildar shall desist from carrying out his orders under the Sub-Section (1) for a period of three months and if, such suit is filed with such period, he shall stay his proceeding pending decision of the Civil Court.

10.

To more fully appreciate the aforesaid provision, Section 202 is extracted herein below: "202. (1) Any person who unauthorisedly takes or remains in possession of any unoccupied and or abadi may be summarily ejected by order of the Tahsildar and any crop which may be standing on

the land and any building or other work which he may have constructed thereon, if not removed by him within such time as the Tehsildar may fix, shall be liable to forfeiture.

(2) Any property forfeited under sub section [1] shall be disposed of in such manner as the Tehsildar may direct and the cost of removal of any crop, building or other work and of all works necessary to restore the land to its original condition shall be recoverable from such person as an arrear of land revenue.

(3) Such person, subject to the provisions of subsection [5], also be liable, at the discretion of the Tehsildar, to a fine which may extend to two hundred and fifty rupees.

(4) The Tehsildar may apply the whole or any part of the fine imposed under sub-section [3] to compensate persons who may, in his opinion, have suffered loss or injury from such unauthorised occupation.

(5) If, in any case, the Tehsildar considers that circumstances of the case warrant imposition of a fine exceeding two hundred and fifty rupees he may refer the case to the Sub-Divisional Officer who shall then, after giving the party concerned an opportunity of being heard, pass such orders in respect of fine as he may deem fit.

(6) If any person ordered to be ejected under subsection [1] has constructed any work of a permanent nature under a bonafide mistake, he may apply to the Deputy Commissioner for condonation of the encroachment and the Deputy Commissioner may, if satisfied that the work was constructed under a bonafide mistake and that the land can be allowed to remain in the possession of such person without any serious detriment to public purpose, condone the encroachment under such terms as he may deem fit.

(7) No order made under sub-section [1] shall prevent any person from establishing his right in a civil court.

(8) If notice of an intention to institute a suit is delivered to the Tehsildar, he shall desist from carrying out his order under sub-section [1] for a period of three months, and if such suit is filed within such period he shall stay his proceedings pending the decision of the civil court."

11.

From the material on record, it would transpire that the petitioner has already expressed his intent to institute a suit and has also requested the Tehsildar to stay the implementation of the eviction order dated 30th December passed in RC No.

230/TPB/2023.

12.

Having regard thereto, without going into the controversy at this stage as to whether the petitioner has a right to retain the encroached land, or whether there has been encroachment of Government land, I am of the view that the petitioner is entitled to protection as provided for in Section 202 (8) of the said Regulation for the statutory period more fully indicated in the aforesaid Regulation. However, at the same time considering the fact that the order impugned has been passed on 30th December 2024, and the petitioner has only issued notice on 20th March 2025 thought, such notice is within a period of three months, however, I am of the view that the petitioner cannot be entitled to the protection of a further period of three months from the date of issuance of notice.

13.

In view thereof, in the facts of the case and the petitioner having delayed issuance of such notice, I am of the view that the petitioner is only entitled to protection for a period of one month from date. In the event the petitioner institutes a suit before the appropriate Court having jurisdiction within the aforesaid period of one month, the consequence of Section 202 (8) of the said Regulation shall automatically follow, subject to the petitioner obtaining preventive order/s from the civil Court.

14.

With the above observations and directions, the writ petition WPA/18/2025 stand disposed of.

15.

There shall be no order as to costs.

16.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(Raja Basu Chowdhury, J.)