Lalta Prasad v. The Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ...

WPA/119/2020 Shri Lalta Prasad Vs.

The Lieutenant Governor and Others Mr. Ananda Halder ... for the Petitioner Mr. V.D. Sivabalan ... for the Administration November 06, 2024 (Bithika) Item No.14 1.

The Writ Petitioner, the Respondent No. 1, 2 and 3 and private respondent No.4 are represented by their respective learned Advocates.

2.

The report as submitted by the Respondent No. 1 to 3 Authorities as called for vide order dated 07.10.2024 is taken on record.

3.

By filing the instant Writ Petition, the Writ Petitioner has prayed for issuance of writ of mandamus upon the Respondent No. 1 to 3 to construct a retaining wall on the Government Revenue land bearing survey No. 336/2/1, 336/2/2 and 336/3 situated at School Line village (near Pahargaon) under Port Blair Tehsil which is admittedly now in occupation of private respondent No.4. 4.

In course of his submission Learned Advocate for the writ petitioner submits before this Court that the land bearing survey No. 409 which is in occupation of the

writ petitioner is on the upper side of the hill whereas aforementioned three plots Government Revenue land are situated below the plot of land of the writ petitioner. 5.

It is submitted further that due to illegal excavation of mud and due to illegal quarry as made by the private respondent No.4 the immovable property of the writ petitioner situated on the aforementioned plot of land bearing survey No. 409 may collapse at any time and therefore for the protection of the property of the writ petitioner, a retaining wall is required to be constructed on the aforesaid three plots lands which are Government Revenue lands.

6.

In course of his submission Learned Advocate for the writ petitioner took me to page No. 31 of the writ petition being a copy of the order as passed by Sub Divisional Magistrate, South Andaman whereby and whereunder the private respondent No.4 who is in illegal occupation of the said three plots of land were directed to construct retaining wall. It is submitted that challenging the said order the private respondent No.4 herein filed WPA No. 555 of 2009 before the Circuit Bench wherein a Co-ordinate Bench passed the following order:- "Once the application is disposed of, the petitioner will raise necessary wall so that the adjacent building belonging to the private respondent is not damaged in any way. Until the demarcation application is disposed of the

petitioner will not make any construction but once the application is disposed of by the Tehsildar, the petitioner will be entitled to make such construction as would be found necessary for protecting his building without, however, damaging or endangering in any way the adjacent building belonging to the private respondent."

7.

It is submitted that despite order passed by the CoOrdinate Bench on 25.11.2009, the private respondent did not raise any wall on the aforementioned three lands. 8.

Drawing attention to page No. 36 it is submitted that in WPA No. 90/2010 another Co-Ordinate Bench of this Circuit Bench while setting aside the order of demarcation dated 16.12.2009 directed the Respondent Authorities to conduct demarcation afresh after giving opportunity of hearing to all the interested parties. 9.

It is submitted further that pursuant to such direction demarcation of the aforesaid three Government Revenue land has been done which is evident from page No. 47 and 48 of the instant writ petition.

10.

It is the grievance of the writ petitioner that in course of time it would reveal that private respondent No. 4 manufactured some forged documents and on account of the same the license as has been issued in the name of the private respondent No.4 in respect of the aforementioned three plots of land have been cancelled vide order dated April, 20 2015 (page No. 49 of the writ

petition) and challenging the said order, a writ petition was filed before another Co-Ordinate Bench which was subsequently dismissed as not pressed.

11.

It is submitted on behalf of the writ petitioner that on account of an unholy league between the private respondent No.4 and the respondent authorities, the property of the writ petitioner as situated in survey No. 409 is about to decay and the building as constructed thereon may fall any time due to erosion of land and thus an appropriate writ may be issued directing the Respondent Authorities to construct a retaining wall on the Government Revenue land being survey No. 336/2/1, 336/2/2 and 336/3.

12.

Per contra, Learned Advocate for Respondent Authorities draws attention of this Court to the report as filed today. It is submitted that for eviction of the private respondent No.4 from the said three plots of land a civil suit is pending before the Learned Civil Judge, Senior Division at Port Blair being Title Suit No. 4 of 2023 and the said suit has now been transferred to the Learned Joint Civil Judge, Senior Division at Port Blair. 13.

It is further submitted on behalf of the Respondent Authorities that dispute which is subject matter of the writ petition is basically a private dispute and therefore, invoking writ jurisdiction is unwarranted.

14.

In course of his submission Learned Advocate for the private respondent No.4 submits that the instant writ petition is not at all maintainable since a boundary dispute cannot be a subject matter of the writ petition. 15.

It is further submitted that the plot of land bearing survey No. 409 as claimed to be in possession of the writ petitioner was never demarcated. It is further submitted that in view of the pendency of title suit before a common Law forum the writ jurisdiction should not be invoked especially when there is availability of alternative remedy to the writ petitioner.

16.

On perusal of the entire materials as placed before this Court, it appears before this Court that it is not disputed that the plot of land bearing survey No. 336/2/1, 336/2/2 and 336/3 are Government Revenue lands and those three plots of land have been well demarcated. Admittedly, the aforementioned three plots of land are in possession of private respondent No.4. 17.

From the materials placed before this Court it does not appear to this Court that there lies boundary dispute between the writ petitioner and the private respondent No.4. The grievance of the writ petitioner is that on account of illegal removal of earth from the aforementioned three plots of land the property of the writ petitioner as constructed on survey No.409 is going to be damaged since the plot of the writ petitioner

bearing survey No. 409 is situated on the upper side of the hill while the Government Revenue land bearing survey No. 336/2/1, 336/2/2 and 336/3 situated at the down contiguous to plot of the writ petitioner and thus the same is required to be protected by constructing retaining wall.

18.

No materials have been placed before this Court that the grievance and / or apprehension of the writ petitioner is unfounded and / or baseless. From the report of the Respondent No. 1 to it does not reveal that the apprehension of the writ petitioner is vague. On account of pendency of litigation between the private respondent No. 4 and the respondent authorities, the writ petitioner being lawful occupier of the upper portion of the hilly land is not expected to suffer.

19.

At this juncture, I propose to look to the provision of Section 300-A of the Constitution of India and the same is reproduced herein below in verbatim:- "Article 300-A: Persons not to be deprived of property save by authority of law- No person shall be deprived of his property save by authority of law."

20.

Article 300-A of the Constitution of India though not a fundamental right but nevertheless it has status of being a constitutional or statutory right. It provides that no citizen would be deprived of his property save by

authority of law. Depriving somebody of his property, where it is land, can be made by number of motives namely; by acquisition, surrender or by transfer and other facets also. Likewise, an administrative inaction resulting to deprivation of right to property of a citizen tantamounts to violation of Article 300-A of the Constitution and therefore like an administrative action, an administrative in-action is also amenable to writ jurisdiction of High Court.

21.

This Court has noticed that the present writ petitioner is the lawful occupier of the plot of land bearing survey No. 409 and therefore, the writ petitioner is not supposed to be deprived of his said property either on account of a dispute by the Respondent Authorities and the private respondent No. 4 or by the alleged illegal act of the private respondent No.4.

22.

This Court thus considers that for protection of his property the writ petitioner has every right to approach this Court invoking writ jurisdiction. This Court thus, holds that the instant writ petition is very much maintainable. This Court further holds that the writ petitioner is entitled to get the relief for protection of his property.

23.

In view of the discussion made herein above, this Court while disposing the instant writ petition permits the writ petitioner to construct requisite number (s) of

retaining wall(s) on the boundary line(s) of Government Revenue land bearing survey No. 336/2/1, 336/2/2 and 336/3 under the supervision of Tehsildar, Port Blair Tehsil at his own cost.

24.

It is further made clear that in the event, the writ petitioner is prevented either by the private respondent No.4 and /or his men and agent and /or any other persons the Tehsildar, Port Blair Tehsil shall seek necessary police help from the Station House Officer of PS Pahargaon.

25.

The Station House Officer of P.S Pahargaon is directed to ensure the availability of necessary police personnel on the basis of requisition of the Tehsildar, Port Blair Tehsil at the cost.

26.

With the aforementioned observation, the instant writ petition is disposed of.

27.

Learned Advocate for the Respondent Authorities is hereby requested to communicate the server copies of this order to the Respondent No. 3 i.e the Tehsildar, Port Blair Tehsil as well as the aforementioned SHO of the aforementioned Police Station.

28.

Parties to act on a server copy of this order duly collected from the official website of the Hon'ble High Court at Calcutta.

(Partha Sarathi Sen, J.)