Bala Chandran v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

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

WPA/160/2021 Bala Chandran and Anr.

Vs.

The Andaman Nicobar Administration and Others Mr. Deep Chaim Kabir Mr. S. Ajith Prasad ... for the Petitioners Mr. Tulsi Lall Mr. Rakesh Kumar ... for the respondents November 08, 2024 (Bithika) Item No.30

1. Challenge in this writ petition is the order dated 01.04.2021 as passed by the Deputy Commissioner, South Andaman District in F.No.07/W.P.A/LC/2021/ 1836 whereby and whereunder the said Authority found the writ petitioners have illegally occupied 40 Sq. meters and 44 Sq. meters of Govt. land respectively by constructing their building and compound wall beyond their land bearing survey No. 93/3/2 and 93/3/8.

2. In course of his submission Mr. D.C.Kabir, Learned Advocate for the writ petitioners at the very outset draws attention of this Court to page No.72 of the instant writ petition being annexure P-3. It is submitted that from the photocopy of the certified copy of the survey map dated 04.08.2017 it would reveal that the present writ petitioners are the lawful occupier of survey Nos. 93/3/2

and 93/3/8 respectively measuring an area of 200 sq. meters each.

3. Drawing attention to page No. 74 of the writ petition it is submitted on behalf of the writ petitioner that from the report dated 16.11.2011 as submitted by the Surveyor of the respondent authorities it would reveal that the land which are in occupation of the writ petitioner bears the correct survey numbers having an area of 200 Sq. meters each which is in conformity with the certified copy of the map as has been annexed with the instant writ petition at page 72.

4. In course of hearing Mr. D.C. Kabir, Learned Advocate for the writ petitioners draws attention of this Court to page No. 83 of the instant writ petition. It is submitted that all on a sudden the Respondent Authorities again appointed Surveyor for demarcation and measurement of the land of the writ petitioners as well as the contiguous lands and on the basis of a purported report dated 17.10.2018 came to a finding that the writ petitioner No. 1 is occupying excess 12 Sq. meters land and writ petitioner No. 2 is occupying excess 14 Sq. meters land by illegally encroaching Government land that is the pathway.

5. Common Objection to such report was submitted by the writ petitioners ( at page No. 86 and 87 of the writ petition) and when the matter was taken to this High Court, a Co-Ordinate Bench by its order dated

16.04.2019 as passed in WPA No.96/2019 set aside the order dated 16.11.2018 as passed by the respondent No.2 therein which is passed on the basis of the said report dated 17.10.2018 with a direction to the respondent authorities to take a fresh decision in accordance with law after granting sufficient opportunity of hearing to the writ petitioners as well as to the other stake holder.

6. It is submitted that subsequent thereto the writ petitioners and the other contiguous owners of the land raised strong objection against the purported demarcation overlooking the prior demarcation and despite such fact the Tehsildar, Port Blair under cover its order dated 28.06.2019 passed an order for removal of alleged unauthorized occupation of the present writ petitioners as well of other owners of the contiguous plots though in such order it has been noticed by the said Tehsildar that one Prem Kishan has occupied 371 Sq. meter of land in survey No. 93 which is beyond the actual occupation of his land being survey No. 103.

7. Drawing attention to page No. 112 of the instant writ petition it is submitted further that again the said order dated 28.06.2019 was set aside by another Co-Ordinate Bench by its order dated 12.07.2019 in WPA No. 184 of 2019 in as much as the said Co-Ordinate Bench noticed that the alleged survey on the basis of which the order

dated 28.06.2019 was passed, was conducted on the day of Parliamentary Election which is an impossibility. It is submitted by MR. D.C. Kabir that from the said order the malafide intention of the Respondent Authority is prominent.

8. It is further submitted that the Respondent Authorities again took the venture for re-demarcation and again noticed alleged encroachment at the behest of the writ petitioner. The matter was again carried to this High Court by filing a civil revision wherein another CoOrdinate Bench passed an order directing the respondent authorities to take a time bound decision failing which the earlier order of Tehsildar dated 24.12.2019 and the said order of the Deputy Commissioner dated 16.12.2018 would become inoperative. It is submitted that the time line as framed by this High Court vide order dated 13.01.2019 in C.O No. 05 of 2019 has not been followed.

9. It is further submitted that on the contrary, a delayed notice dated 12.10.2020 following a stop work order were also issued by the Respondent Authorities and ultimately the Deputy Commissioner, South Andaman District under cover of its order dated 21.01.2021 passed another order holding that the writ petitioners have encroached 40 and 44 Sq. meters of land respectively in excess of their survey land bearing survey Nos. 93/3/2 and 93/3/8 which was however again set

aside by another Co-Ordinate Bench on 18.02.2021 in WPA No.009/2021 giving an opportunity to the Deputy Commissioner, South Andaman District to complete the proceedings afresh after giving an opportunity of hearing to the writ petitioners.

10.

It is submitted that the order which is challenged before this Court is basically the cyclostyle copy of earlier order and there was no independent application of mind on the part of the Deputy Commissioner which is subject matter of the instant writ petition.

11. In course of his submission Mr. Kabir, Learned Advocate for the writ petitioners vehemently argued that from the map which is annexed with the supplementary affidavit as filed by the Respondent Authorities it would reveal that one Prem Kishen who is the occupier of the survey No. 103 has encroached a substantial portion of a strip of land in survey No. 93 and even from the impugned order it would reveal that because of such encroachment the portion of the land occupied by the owners of survey No. 93 including the writ petitioners has been diminished substantially.

12. It is further submitted that from the impugned order dated 01.04.2021 it would not reveal as to how the respondent authority; more specifically the Deputy Commissioner, South Andaman came to a finding that the present writ petitioners have encroached the

pathway.

At the same time the said Deputy Commissioner has also not given any adherence to the certified copy of the map dated 04.08.2017 as prepared by the Tehsildar of the Respondent Authorities. It is further submitted that though in the impugned order dated 01.04.2021 the Deputy Commissioner, South Andaman has observed that the area of land of the writ petitioners as well as the other owners in survey No. 93 has been diminished on account of encroachment by Prem Kishen by survey No. 103 there cannot be any basis in the finding of the said Deputy Commissioner that the present writ petitioners have encroached the pathway which is adjacent to survey Nos. 93/3/2 and 93/3/8.

13. It is thus submitted that the order dated 01.04.2021 is unreasoned, bias and has no leg to stand and the same may be set aside.

14. Per contra, Mr. Tulsi Lall, Learned Advocate for the respondent authorities submits before this Court that the instant writ petition is not maintainable in as much as by the impugned order several other occupants of the survey No. 93 were directed to remove their illegal construction on the pathway and therefore the said occupants are necessary and proper parties in the instant writ petition. It is further submitted that for non making the said occupants of survey No. 93 as party

respondents, the instant writ petition cannot be entertained. It is further submitted that from page No. 75 of the writ petition it would reveal that the writ petitioner No. 1 obtained sanctioned plan on 02.11.2018 whereas in course of survey on or before 17.10.2018 it reveals that a building and compound has been constructed by the writ petitioners (as available from page No. 83 of the writ petition). It is thus submitted that the building in question in the writ petition is per-se illegal and unauthorized and therefore the same cannot be allowed to stand.

15. This Court has perused the entire materials as placed before this Court meticulously. This Court has given its anxious consideration over the submissions of the Learned Advocate for the contending parties.

16. Since Mr. Lall in course of his submission raised point of maintainability of the instant lis this Court thinks it fit and proper to decide the said issue at the first instances.

17. Admittedly, by a common order dated 01.04.2021 the Deputy Commissioner, South Andaman noticed that many of the occupants of survey No, 93 have illegally occupied the pathway including the writ petitioners. In considered view of this Court, since the writ petitioners are aggrieved with such finding (though along with others) they are not debarred under any provision of law to challenge the legality, veracity and correctness of the

order dated 01.04.2021 since this order is going to affect their 'right to property' as enshrined in Article 300-A of Constitution of India.

18. It is settled principle of law that right to property under Article 300-A of Constitution of India though not a fundamental right but it has status of Constitutional and statutory right and in the event such right under Article 300 -A of Constitution of India is violated by an Administrative action and / or inaction the same is amenable to writ jurisdiction. Since, the writ petitioners apprehend that by the impugned order his lawful title and possession over the property in question is going to be affected, this Court holds that the instant writ petition is very much maintainable.

19. Coming to the factual aspects of this case it appears that it is undisputed that in respect of survey No. 93 more specifically in respect of survey Nos. 93/3/2 and 93/3/8 a survey was conducted in the year 2017 and on the basis of the same a survey report was prepared containing a map showing clear demarcation and measurement of different plots under survey No. 93 including the writ petitioners' plot Nos. 93/3/2 and 93/3/8 measuring about sq.

meters each.

Admittedly, such demarcation, measurement and the map were never challenged. In the said map dated 04.08.2017 as available at page No. 73 of the instant writ

petition the measurement of pathway which is allegedly encroached by owners of the survey No. 93 has also been mentioned.

20. With the passage of time the Respondent Authorities thought it proper to conduct further survey and further demarcation and accordingly, the same was done which was subject matter of various litigations as discussed supra. From the impugned order of the Deputy Commissioner, South Andaman dated 01.04.2021, sufficient materials have been placed before this Court to substantiate that one Prem Kishen has encroached a substantial strip of land in survey No. 93 which is also explicit from the supplementary affidavit as affirmed on 18.08.2022. There is a clear finding of the Deputy Commissioner in the impugned order that because of the encroachment by Prem Kishan the land of the owners /occupiers in survey No. 93 including that of writ petitioners diminished substantially.

This Court has however, failed to find anything in the impugned order dated 01.04.2021 as to whether the measurement of the pathway as depicted in the map dated 04.08.2017 has been diminished in any way by the alleged encroachment by the writ petitioners. It does not appear to this Court also that while passing the impugned order dated 01.04.2021 the Deputy Commissioner South Andaman had at all relied upon the map dated 04.08.

such map dated 04.08.2017 is a creature of his own predecessor-in-office and therefore he is duty bound to take his decision on the basis of the earlier map as has been prepared and published on 04.08.2017 (page No.72 of the instant writ petition).

21. In view of such, this Court is thus constrained to hold that the report dated 0.04.2021 is not at all reasoned and has got no basis at all.

22. This Court is in respectful disagreement with the submission of Learned Advocate appearing for the respondent administration that the construction as made by writ petitioner No. 1 over survey No. 93/3/2 is required to be demolished since the said construction has been done prior to obtaining sanction by the authority. No materials have been placed before this Court that before initiation of proposed demolition any notice has been given to the writ petitioner No. 1. This Court is of the considered view that even if a construction is found to be illegal and / or not in accordance with the sanctioned plan the person liable is required to serve notice following the principle of natural justice.

23. In view of such, this Court thus finds sufficient merit in the instant writ petition and accordingly the instant writ petition is allowed.

24. Consequently the impugned order dated 01.04.2021 as passed by Deputy Commissioner, South Andaman in F

No. 07/WPA/LC/2021/1836 is hereby quashed and set aside so far as the present writ petitioners are concerned.

25. There shall be no order as to costs.

26. With the disposal of the instant writ petition the order of status quo as passed on 16.04.2021 in the instant writ petition stands hereby vacated.

27. Urgent photostat certified copy this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities (Partha Sarathi Sen, J.)