P.Abdul Wahab v. The Andaman And Nicobar Administration And Others
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/26/2024 P. Abdul Wahab Vs.
The Andaman and Nicobar Administration and Others Mr. K. M. B. Jayapal .... for the petitioner Mr. V. D. Sivabalan Mr. Arun S. Kumar ... for the respondents March 12, 2024 [SR] Item No.5 Heard Shri KMB Jayapal, learned counsel for the petitioner and Shri V. D. Siva Balan, learned counsel for the respondent authorities.
Briefly stated facts of the present case are that according to the sole petitioner, he and five others namely Shri P.K.Mammu, S/o. Late Moni Hajee, Shri Mujibur Rehman, S/o. P. Veeran Kutty, Shri P. Abdul Rasheed, S/o. Late P. Moosa, Shri P. Abdul Aziz, S/o. Late P. Moosa and Shri K. Abdul Rehman, S/o. Late P. Moosa were in occupation of certain portion of land under survey no. 1490/1, 1490/2, 1490/3, 1489/1, 1489/3, 1489/4 and 1489/5. It is alleged that their possession over the land-in-question was much prior to the year 1961 and therefore, they were entitled for regularization of excess area in possession of the pre-1942 settlers upto the year 1961 in terms of regularization scheme "Regularization of excess land in possession of pre-1942 settlers without payment of premium" issued by the Government of India, Ministry of
Home Affairs vide G.O. No. U-13034/20/2003-ANL dated 15.07.2003. Accordingly, the matter was considered by the Court of Deputy Commissioner, District South Andaman, Port Blair vide order dated 20.01.2014 which reads as under :- "File No. 381/Sett/2010/101
IN THE COURT OF DEPUTY COMMISSIONER
DISTRICT SOUTH ANDAMAN PORT BLAIR Port Blair dated the 20th Jan. 2014 Shri . Abdul Wahab and Others - Vs - State
ORDER
The land records of Port Blair Municipal area was prepared under the provisions of Land (Tenure) Regulation, 1962 and the records were in Urdu language with Acre-Kanal- Marla as units of measurements.
In order to create proper and up to date land records,detailed survey operation of the villages under South Andaman was initiated during 1958. The records prepared in respect of the village under Municipal limit could not been finalized, as many tenants were found to be in excess possession of land and they were insisting for regularization of the excess area in possession without imposing premium.
The A&N Administration vide DO No. Sett/35/2002(PF) dated 1.3.2003 referred the matter relating to regularization of excess area in possession of 1027 individuals and 22 organizations in Port Blair Municipal area, to Govt. of India. Explaining the condition of Revenue records and reason for non finalization of records of Municipal limits. The Ministry of Home Affairs, Govt. of India, New Delhi vide their letter No. U-13034/20/2003/ANL dated 15.7.2003 accorded approval for regularization of excess area in possession of the pre 1942 settlers up to the year 1961, as identified in the survey under taken by the A&N Administration in 1961, might be regularized withour levy of any premium. The regularization approved was being subject to the following conditions:
(i) The excess land will be regularized only to the extent that the concerned occupants and their descendents have maintained their continued possession till date. (ii) A&N Administration will carry out a survey to identify the pre-1942 settlers their descendents and the exact area of excess land in the possession up to 1961.
The eligible cases were published in the website of A&N Administration on 06.03.2007 inviting claims and objections. In the instant case, as per the survey conducted, the proposal for regularization was published with the following details:-
Sl.
No Name of the tenant as per survey Name of the occupant as per field report Sy.No.
Allotted Area (In Sq.
mtrs) Excess area (In Sq.
Mtrs.) Area proposed for regularization Area (In Sq.
Mtrs) 1.
P. Aimu S/o Moin Hajee Sy.No.
(Proposed) P. Abdul Wahab - Subsequent to filing claims by the under-mentioned claimants, the legal descendents of Late Aimu, were included in the proposal for regularization.
1. Shri. P. Abdul Wahab
2. Shri. P. Abdul Aziz
3. Shri. P. Abdul Rasheed
4. Shri. P. Mujibur Rehman
5. Shri. P.K. Mammu However, it was found that the following persons have been issued licence during 1988 by way of regularization of Pre-78 encroachment.
1.
Shri. P. Moosa, S/o Moin Hajee, Sy. No. 22/52/1, area 28 Sq. Mtrs.
2.
Shri. P. Abdul Rehman, S/o Moosa, Sy. No. 22/52/2 ,area 200 Sq. Mtrs.
3.
Shri. P.K. Mammu, S/o Moin Hajee, Sy. No. 22/43/1, area 200 Sq.Mtrs.
4.
Shri. Abdul Wahab, S/o Late P. Aimu, Sy.No. 22/43/2 area 127 Sq. Mtrs.
Out of the above, Shri P. Abdul Rehman, S/o P. Moosa had deposited the required premium and the correction was carried out in the records, while others did not pay premium possibly to enjoy the fruits of Pre-61 Policy at a later stage. Which did not have any ceiling on the area of regularization in sharp contrast to Pre-78 encroachment policy which restricted extent of regularization to 200 sq.mtrs for dwelling houses in urban area.
Meanwhile Shri Abdul Wahab, R/o Phoenix bay objected the inclusion of other persons in the proposal under the pretext that he is the only legal heir of deceased Aimu and therefore is solely eligible to be included in the list of excess regularization. However, persons other than Shri Abdul Wahab contended that the licence may be issued as per the present occupation over the Sy. Nos. 1489 and 1490 total area 1189 sq. mtrs.
As per the request of the stakeholder, demarcation of subject land was conducted and the possession was found as under:- Sl.No.
Name of occupant/Applicant Sy.No Area in Sq.
mtrs.
Remarks
1.
Shri P. K. Mammu S/o Late. Moin Hajee 1490/1 2.
Shri P. Abdul Wahab S/o Late P.Aimu 1490/2 3.
Shri Mujibur Rehman S/o P. Veeran Kutty 1490/3 1489/1 4.
Shri P. Abdul Rasheed S/o Late P. Moosa 1489/3 5.
Shri P. Abdul Aziz S/o Late P. Moosa 1489/4 6.
Shri P. Abdul Rehman S/o Late. P. Moosa 1489/5 200 Sq. mtrs regularized during 88-89 in Sy. No.
22/52/2 Accordingly, it was decided to issue licence to above persons subject to the condition that the licences issued under Pre-78 regularization policy is surrendered.
The said decision was protested by Shri Abdul Wahab who refused to surrender licence issued to him during Pre-78 regularization. The ongoing discussion implies that the beneficiaries of the policy are constantly agitating regarding respective titles and extent of interest for creation of tenancies.
As it involves issues over their titular rights of the parties involved, I am constrained to take a decision due to lack of jurisdiction over deciding civil rights involved in this. Having applied my mind, I am of the opinion that justice shall prevail if the parties to the case gets the issue over the title and the extent of the individual titular interest be established through an appropriate civil court and apply to this office with such decree, which shall become the guiding principle for issuance of licence in the instant case.
The matter is thus disposed off. A plain copy of the order be served upon the parties, the Assistant Commissioner (SA), Assistant Commissioner (S) and Tehsildar, Port Blair.
Given under my hand and seal of this court this 20th day of January 2014.
Sd/- (P. JAHAWAR) Deputy Commissioner (SA) Accordingly, with regard to the land-in-question, a civil suit being O.S. No. 84/2014 (P. K. Mamoo - versus - Andaman and Nicobar Administration and Others) was filed but subsequently, the parties entered into an out of court settlement but did not pursue the said suit. Therefore, the suit
was dismissed in default by an order dated 19.09.2022. Prior to the dismissal of the suit for non prosecution as aforesaid, the aforesaid six persons submitted an application dated 21.02.2019 before the Deputy Commissioner, District South Andaman, Port Blair which is reproduced below :- "To, THE DEPUTY COMMISSIONER DISTRICT SOUTH ANDAMAN PORT BLAIR.
Sub: Appeal for regularization of excess land in possession of pre1942 Settlers in Port Blair. Vide Sy. No. 1489 & 1490 at Phoenix Bay, Port Blair and issuance of licences to the concerned beneficiaries-reg.
Respected Sir, Kindly refer to the judgement order No.
381/Sett/2010/10/dated 20th January, 20104 of the then Deputy Commissioner of this office, where in the matter was 'disposed off' on the basis of non-co-operation of a certain member of the family and directed the parties to approach the Civil Court and apply to this office with such decree which shall become the guiding principle for the issuance of licence (vide Shri Abdul Wahab & Others V/s State) (copy enclosed).
Accordingly, a case was filed by P. Abdul Samad (Power of Attorney Holder of P.K Mammu) Vide the plain Tiff suit No. 84 of 2014, P.K Mammu and others V/s Andaman & Nicobar State, now pending in Court. While on the other hand, consistent attempts were made to settle the matter outside the Court. In such a recent attempt, held on 10th February 2019, good sense prevailed and a complete understanding and unanimity on the issue, has been reached and the matter been solved. The Stakeholders including P. Abdul Wahab, now hereby accept and respect the demarcation and sub-divisions of the said land (Sy.No. 1489 & 1490), occupied by each member, finalized by the revenue authority (copy enclosed) and all shall abide by the conditions, including surrendering of pre-1978 regularization licence, issued to P.Abdul Wahab.
It is also mentioned here that the above mentioned Civil Suit No. 84 on the issue in the Civil Court, shall however be withdrawn with the completion of regularization process and issuance of licences to the concerned parties or at an appropriate time.
We have been maintaining continuous possession of the said land and some of the wooden buildings, existing there for more than 60 years and are in a dilapidated conditions, may pose danger to human lives.
Now, it is therefore, earnestly appealed to you sir, kindly to look into the matter sympathetically and issue order to restart the process of regularization (the held up case), and arrange to issue the licences in our favour, at your earliest convenience. We shall ever be grateful to you for this act of kindness. Thanking you, Yours Faithfully P.K. Mammu & Others (As furnished below) Sl.No.
Name of occupant/Applicant Sy.No Area in Sq.
mtrs.
Signature 1.
Shri P. K. Mammu S/o Late. Moin Hajee 1490/1 Sd/- 2.
Shri P. Abdul Wahab S/o Late P.Aimu 1490/2 Sd/- 3.
Shri Mujibur Rehman S/o P. Veeran Kutty 1490/3 1489/1 Sd/- 4.
Shri P. Abdul Rasheed S/o Late P. Moosa 1489/3 Sd/- 5.
Shri P. Abdul Aziz S/o Late P. Moosa 1489/4 Sd/- 6.
Shri P. Abdul Rehman S/o Late. P. Moosa 1489/5 Sd/- (Note:
Sl.No.6, sq.mts regularized during 88-89 in Sy.No.22/52/2) List of Enclosures:-
1. COPY of D.C ORDER No. 381/SCH/2010/101 dated 20th January 2014'
2. COPY OF THE PROCEEDING OF THE MEETING FO SETTLEMENT OF THE DISPUTE AMONG THE FAMILY MEMBERS, Dated 10th February 2019.
Sd/- (P . Abdul Samad) Pursuant to the aforesaid application, the Deputy Commissioner issued notice dated 01.03.2019 to all the applicants requiring them to appear before him on the next date. The said notice was followed by notices dated 24.04.2019 and 07.06.2019.
Pursuant to the direction of the Assistant Commissioner (S), the demarcation of land bearing survey no. 1489 and 1490 situated at Phoenix Bay village, Port Blair Tehsil were proposed
to be undertaken and the date was fixed on 24.11.2020 at 10.00 a.m. and accordingly, the Tehsildar gave aforesaid notice to all the aforesaid persons including the petitioner. A report dated 08.12.2021 was submitted by the Surveyor and Draftsman (P) to the Tehsildar (Settlement)-II, Port Blair that apart from the area of survey no. 1490 and 1489, the applicants are also in illegal occupation of "Nallah" land of survey no. 1480. The report submitted by S & D (P) dated 08.12.2022 is reproduced below:- "Report:
Ref: 42-125/PG/TSD-R/2019/DC(SA)/1329 With reference to the above, a notice, dated 18th Nov. 2020 has been received for conducting a detail survey of land bearing Sy. No. 1489 & Sy.No. 1490 at Phoenix Bay village on 24/11/2020 with the following directions:- (i) Present occupation of the tenants.
(ii) Excess area if any in occupation.
(iii) Total area in occupation.
The Survey has been carried out with the assistance of Surveyors Smti Trinadamma and Smti Reema Yadav on 24/11/2020. The details of findings of Survey as follows: Sl.
No.
Name of the occupant/applicant Sy.No.
Area (in Sq.mtrs) Possess ion in Sy.No.1 (Nallah) Area in sq.mtr Total area 1.
Shri P.K.Mammu S/o Late Moin Hajee 1490/1 318.50 217.60 536.10 2.
Shri P.Abdul Wahab S/o Late P.Aimu 1490/2 122.00 85.00 207.00 3.
Shri P.Mujibur Rehman S/o Late Veeran Kutty 1490/3 1489/1 104.50 210.00 172.00 486.50 4.
Shri P.Abdul Raheed S/o late P. Moosa 1489/3 158.00 56.00 214.00 5.
Shri. P. Abdul Aziz S/o Late P. Moosa 1489/4 251.00 83.60 334.60 6.
Shri P.Abdul 22/52/2 200.00 78.50 295.50
Rehman S/o Late P.Moosa 1489/5 17.00 Total 1381.00 692.70 2073.70 The Sketch map with colour washed to this effect has been prepared and placed in opposite for perusal please. Submitted please.
Sd/- S&D (P) Now, being aggrieved at this stage, with the report of the S & D (P), the petitioner has filed the present writ petition without submitting any objection before the Deputy Commissioner. The case is stated to be still pending before the Deputy Commissioner.
In view of the facts briefly noted above, no useful purpose would be served to keep the writ petition pending and to call for counter affidavits, inasmuch as, according to the petitioner, the matter is still pending before the respondent no. 2/Deputy Commissioner. Therefore, without expressing any opinion on merits of the case of the petitioner and five other persons as mentioned in the report by the S & D (P) dated 08.12.2021 as quoted above, the writ petition is disposed of with the following directions :
i.
Liberty is granted to the petitioner and other interested persons to submit their objections, if any, before the respondent no.
2/Deputy Commissioner, within four weeks from today along with certified copy of this order.
ii.
On receipt of the objection, the Deputy Commissioner shall take an appropriate decision in
accordance with law keeping in view the above quoted Government order dated 15.07.2003 within next two months, after affording a reasonable opportunity of hearing to the petitioner and all the concerned parties.
iii.
In the event, the decision has already been taken by the respondent no. 2 / Deputy Commissioner in the matter of the petitioner, then no further proceeding shall be required to be carried on and the respondent no. 2 / Deputy Commissioner shall communicate the decision/copy of the order to the petitioner within two weeks from the date of submissions of certified copy of this order.
With the aforesaid directions, the writ petition is disposed of.
It is made clear that this Court has not expressed any opinion on merits of the case of the petitioner or other five persons.
( Surya Prakash Kesarwani, J. )