Naveen Chandra Biswas v. The Andaman And Nicobar Administration And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/29/2022 Upen Chandra Biswas ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/30/2022 Manjula Devi ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/31/2022 Sashi Kala ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/32/2022 Nirmala Devi Alias Nirmala Lall ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/33/2022 Sachin Chandra Biswas ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/34/2022 Praveen Chandra Biswas ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/35/2022 Surilla Devi ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/36/2022 Romila Devi ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents WITH WPA/46/2022 Sarmila Devi ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents

WITH WPA/47/2022 Naveen Chandra Biswas ... Petitioner Vs.

The Andaman and Nicobar Administration and Others ... Respondents Mr. KMB Jayapal ... for the petitioners Mr. N.A. Khan ... for the respondents April 22, 2022 [GNC] Item Nos. 1to10 The petitioners claim to have absolute interest in respect of survey plot No.14/P measuring an area of 0.70 hectares in School Line village, under Port Blair Tehsil, as heirs of deceased R.C. Biswas who was the original tenant. The petitioners have a common grievance that the authorities have utilized their land without acquiring the same. Thus, the matters are taken up together. The writ petitions have been filed challenging an order dated December 31, passed in F.

No.49/LC/2018/5745 by the Deputy Commissioner, South Andaman district, Port Blair.

The dispute relates to the land bearing survey No.14/P measuring an area of 0.70 hectares in School line village, under Port Blair Tehsil.

The challenges in a nutshell are as follows:- (a) The order was passed without supplying the reports relied upon by the authority. One of such report

being G. No. 68/TPB/2021/810, dated March 26, 2021.

(b) The order refers to some enquiry being made prior to disposal of the matter, but such enquiry was not made in the presence of the petitioners.

(c) The joint inspection was not conducted in the presence of the petitioners. Only Mr.Sachin Chandra Biswas one of the petitioners was present during such inspection.

(d) That the order impugned dated December 31, 2021 was not in compliance with the direction of the High Court passed in WP No.092 of 2018 (Smt.Manju Devi Vs. Andaman and Nicobar Administration and others) dated August 14, 2018. The issues framed by the coordinate Bench was not dealt with, when similar petitions filed by the petitioners were disposed of, analogously.

Mr.Khan, the learned Advocate appearing on behalf of the Administration produces a copy of the register containing the records of the hearing. It appears that a direction was given to the staff, to supply the report to the petitioners, but information as to whether such report was ultimately supplied to the petitioners or not, is not available with the Administration. It also appears that a joint inspection was held in the absence of the petitioners. There

is nothing on record to show that the petitioners had received the notice of the joint inspection, but had failed and neglected to attend such inspection.

Thus, under such circumstances, as these disputed question of facts having arisen and the records of Administration do not indicate that the report was supplied to the petitioners and that the joint inspection was held in the presence of the petitioners, this court is of the view that the order cannot be sustained on account of such omissions.

In the matter of Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others reported in (1993) 4 SCC 727, the Hon'ble Apex Court held that if any report was used against a party, the said party was entitled to have a copy of the report and be given an opportunity to deal with such report. Denial of the right to a copy of a enquiry report would amount to denial of a reasonable opportunity and also would be in violation of Articles 14 and 21 of the Constitution of India. A right to represent against any finding in the report, was a part of reasonable opportunity. Such opportunity should have been available to the petitioners.

The order records at internal page 3 thereof, that a point-wise report from the Tehsildar, Port Blair dated March 26, 2021 was called for. The same was also relied upon. The said report has a direct bearing on the final

decision of the authority. Thus, the court concludes that such report ought to have been given to the petitioners and the petitioners ought to have been granted an opportunity to file a response to such report before the authority concerned. Next, it appears that a joint inspection and an enquiry were made by the authorities concerned. The petitioners were not present during such inspection/enquiry, except the petitioner in WPA/33/2022 (Sachin Chandra Biswas).

Under such circumstances, reliance placed on the joint inspection report and the enquiry in the order, is also erroneous. The denial of an opportunity to the petitioners to be present at the joint inspection/enquiry was in violation of the principles of the natural justice and also in violation of Article 14 of the Constitution of India.

With regard to the other contention on the merits of the order of the Deputy Commissioner, this Court is of the opinion that the determination by the Deputy Commissioner ought to have been done by taking into consideration the following points which were enumerated by the coordinate Bench. The same are set out hereunder for convenience:- "1) To indicate the status of land prior to 1977 in particular whether was there any road, motorable or otherwise on plot 14/P.

2) To indicate when the motorable road was built and by whom and whether any no objection was sought for either from the recorded tenant or from the appropriate government. Was there any requisition

made by the Defence authority for construction of the proposed road, and if not, whether the then appropriate government made an objection or not.

3) Whether motorable road constructed by the Defence authority has been reflected in the concerned map for the area maintained by the Administration and since when it has been reflected in such map.

4) To also justify the order of mutation allowed by the Tehsildar as contained in his order dated 30th March, (annexure P-2) under R.C.

No.

763/2012/TPB if no land physically existed at that point of time.

5) Whether R.C. Biswas since deceased, during his life time signed any letter of surrender within the meaning of Regulation 153 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and the Rules framed thereunder.

6) To also justify his stand that the land merged with the Defence road and if so what would be the implications of Regulation 162 in particular clauses (f) and (g) thereof and to specify since when the recorded tenant is to be deemed to be not in possession of the land."

Under such circumstances and for the reasons aforesaid, all the writ petitions are disposed of upon setting aside the order dated December 31, 2021 passed in F. No.49/LC/2018/5745 with a direction upon the Deputy Commissioner, South Andaman District, to act and proceed in accordance with law, by following the procedure laid down hereinbelow:- (a) A joint inspection shall be made in the presence of the petitioners.

(b) A report of the joint inspection shall be furnished to the petitioners.

(c) The petitioners shall be allowed to respond to such report.

(d) The petitioners shall be allowed to produce relevant documents in support of their contentions.

(e) The report of the Tehsildar dated March 26, 2021 shall also be handed over to the petitioners for the petitioners' response.

(f) The written versions of the petitioners, to the report of the Tehsildar and the joint inspection report shall be considered.

Thereafter, the concerned authority shall proceed to determine the issues raised in all these writ petitions afresh. A composite reasoned order shall be passed and communicated to the petitioners. The authority shall make an independent finding as per the guidelines which are quoted hereinbefore, and which already form a part of the decision of the coordinate Bench in WP No.092 of 2018 which was disposed of along with a series of similar writ petitions.

With the above directions, the writ petitions stand disposed of. Copies of the order be retained with each of the files.

Parties are directed to act on the server copy of this order.

(Shampa Sarkar, J.)