← Library
Calcutta High CourtMA/5/2021allowed

Thesleema M.K. v. Andaman And Nicobar Administration And ORS.

2022-07-28Hon'Ble Justice Ravi Krishan Kapur,Hon'Ble Justice Tirthankar Ghosh5 pages

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE RAVI KRISHAN KAPUR AND HON'BLE JUSTICE TIRTHANKAR GHOSH MA/5/2021 IA No. CAN/1/2021 In WP No. 162 of 2018 Thesleema M.K ... Appellant

Versus

Andaman and Nicobar Administration and others ... Respondents For the Appellant : Mr. N.A.Khan For the Administration : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal For the Private Respondent : Mr. KMB Jayapal Reserved on : 27.06.2022 Judgment on : 28.07.2022 RAVI KRISHAN KAPUR, J.

1. This appeal is directed against a final order dated 23rd February, 2021 (impugned order) disposing of the writ petition by setting aside an order dated 30th July, 2018 passed by the Tehsildar, Port Blair and further directing the Tehsildar to decide the matter in accordance with law.

2. Briefly, the respondent No. 4 filed this writ petition challenging the order of the Tehsildar dated 30th July, 2018 passed in R.C. Case No.324/TPB/2018. The crux of the dispute between the parties pertains to an area of 9.88 Sq. mtrs. of land in Survey No. 783 at Calicut Village. By the order dated 30th July, 2018, the Revenue Authorities had found that the entirety of the 9.88 sq. mtrs. of land is recorded in the name of the appellant and the writ petitioner was in unauthorised occupation thereof. Accordingly, the writ petitioner was directed to vacate the entirety of the land, failing which the Revenue Inspector has been directed to remove the petitioner.

3. The grievance of the writ petitioner was that in passing the order dated 30 July, 2015, the Tehsildar had acted in violation of the principles of natural justice and failed to comply with an earlier direction of the Court passed in WP 456 of 2017 (Shri Gulam Mohammed Vs. The Andaman and Nicobar Administration and others). By the impugned order, the Learned Judge has held that the Reports relied on by the Tehsildar were not furnished to the writ petitioner and no opportunity had been afforded to the writ petitioner to deal with either of the Reports. Hence, the impugned order directs the Tehsildar to consider the matter afresh in accordance with law and after supplying copies of the Reports to the writ petitioner.

4. It is contended on behalf of the appellant, the only ground which had weighed with the Trial Court in passing the impugned order was that the Tehsildar had relied on a Report from the Revenue Field Staff showing the writ petitioner to be in unauthorised occupation of the entirety of the land without furnishing a copy of the same to the writ

petitioner. On merits, it is alleged that, it would appear from the records before the Tehsildar that not only had the writ petitioner been furnished with copies of both the Reports dated 26th October, 2017 and 6th November, 2017 respectively, but the writ petitioner had also filed its written objection dealing with the same. It is also submitted on behalf of the appellant that the order passed by the Tehsildar had been passed under Regulation 98/161 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations 1966 (the Regulations) and the same is appealable under Regulation 28. Hence, the writ petition was not maintainable on the ground that the petitioner had an alternative, efficacious statutory remedy.

5. On behalf of the respondent Nos. 1 to 3 authorities, it is reiterated that the writ petitioner was in possession of the two Reports dated 26th October, 2017 and 6th November, 2017 respectively relied on by the Tehsildar in the impugned order. By a written objection dated 27th March, 2018, the writ petitioner had also filed an objection to both the reports. Thus, the contention of the writ petitioner that no copy of the report had been handed over to the writ petitioner is erroneous and false.

6. In my view, the only ground which has weighed with the Trial Court in passing the impugned order is that the copies of the Reports relied on by the Tehsildar in the order dated 30th July, 2018 had not been furnished to the writ petitioner. I find from the records before the Tehsildar that there were only two reports dated 26th October, 2017 and 6th November, 2017 respectively which have been relied on by the Tehsildar. Both these reports had been furnished to the writ petitioner. The writ petitioner had also filed a written objection dated 27th March, 2018

challenging both the reports. Hence, the very foundation of the impugned order that the reports relied on by the Tehsildar had not been furnished to the writ petitioner is incorrect and contrary to the records. I also do not find that there has been any non-compliance with the directions passed in WP 456 of 2017. Accordingly, the impugned order is set aside.

7. I also find merit in the contention that the writ petition is liable to be dismissed on the ground that the writ petitioner has an alternative, efficacious statutory remedy.

8. Regulation 28 of the aforesaid Regulations provides as follows : "28. (1) Save as otherwise provided in this Regulation, an appeal shall lie from every original order passed under this Regulation or the rules made thereunder:- (a) if such order is passed by any revenue officer subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Deputy Commissioner, to the Sub-Divisional Officer; (b) if such order is passed by the Sub-Divisional Officer, whether or not invested with the powers of the Deputy Commissioner to the Deputy Commissioner;

(c) if such order is passed by any revenue officer subordinate to the Settlement Officer, to the Settlement Office; (d) if such order is passed by a Deputy Commissioner, whether exercising the powers of Deputy Commissioner or Settlement Officer during the currency of the term of any settlement, to the Chief Commissioner;

(e) if such order is passed by Settlement Officer, whether exercising the powers of Settlement Officer or the powers of a Deputy Commissioner in connection with any settlement operation, to the Settlement Commissioner.

(2) A Second appeal shall lie against any order passed in first appeal- (i) by the Sub-Divisional Officer or the Deputy Commissioner or the Settlement Commissioner, to the Chief Commissioner.

(ii) by the Settlement Officer, to the Settlement Commissioner.

(3) An order passed in review varying or reversing any order shall be appealable in like manner as the original order."

9. In my view, the order dated 30 July, 2018 passed by the Tehsildar is an appealable order under Regulation 28. I am conscious of the fact that as an absolute proposition, the existence of an alternative, efficacious statutory remedy is not always a bar to the filing of a writ. However, there are neither any exceptional circumstances pleaded nor do I find any which exist warranting this petition to be entertained. Ordinarily, the Writ Court does not exercise jurisdiction when an alternative, efficacious statutory remedy is available to an aggrieved party. In view of the aforesaid, WP No. 162 of 2018 stands dismissed. 10.

With the aforesaid directions, MA/05/2021 stands allowed.

CAN/1/2021 also stands disposed of. Accordingly, WP No. 162 of 2018 stands dismissed. However, there shall be no order to as to costs. (RAVI KRISHAN KAPUR, J.) I agree.

(TIRTHANKAR GHOSH, J.)