The Andaman And Nicobar Administration v. G Senguttuvan And ORS
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE MOUSHUMI BHATTACHARYA AND HON'BLE JUSTICE AJOY KUMAR MUKHERJEE MAT/1/2022 IA No. CAN/2/2022 THE ANDAMAN AND NICOBAR ADMINISTRATION ... APPELLANT
VERSUS
G.SENGUTTUVAN & OTHERS ... RESPONDENTS For the Appellant : Mr.Shatadru Chakraborty For the Respondents : Mrs. Anjili Nag Heard on : August 17, 2022 Judgment on : August 23, 2022 AJOY KUMAR MUKHERJEE, J.
1.
Being aggrieved and dissatisfied with order dated January 28, 2020 passed by this Hon'ble Court in WPA No. 298 of 2019 thereby directing the respondents therein to comply with an order dated July 2, 2003 passed by the Deputy Commissioner, present appeal has been preferred.
2.
Mr. Shatadru Chakraborty, learned counsel appearing on behalf of the appellants submits that said writ proceeding was
initiated after a lapse of sixteen years for implementation of an order dated July 2, 2003, passed by the Deputy Commissioner. He further submits that the Single Judge without going into the merits of the matter and without taking into consideration the validity and feasibility of the said order, had directed its implementation.
3.
The facts leading to filing of the present appeal by the appellant, is that the aforesaid writ petition was filed, inter alia, praying for a direction upon the respondents to implement the order dated July 2, 2003 passed by the Deputy Commissioner and the operative part of the Deputy Commissioner's order is as follows:- "Therefore, the petitioner's shortage of 0.31 hectare land would be compensated by allotment of equal area within the same de-reserved block.
The Assistant Commissioner (Settlement) shall take necessary action as expeditiously as possible for allotment of the above area as per the direction contained above." 4.
Mr. Chakraborty further submits that learned Judge failed to appreciate that the writ petition is not maintainable at all, seeking to enforce an order passed almost sixteen years back, without any explanation for such latches. He further submits that learned Single Judge failed to appreciate that the order dated 02.07.2003 passed by the Deputy Commissioner which was sought to be enforced by the writ jurisdiction of the Hon'ble High Court required to be examined and considered in
its true context and in the light of the judgement of the Hon'ble Supreme Court dated 07.05.2002 passed in IA No. 502 in WP (C) No. 202 of 1995 (T.N. Godavarman Thirumulpad vs. Union of India and others). He further contends that accepting Shekhar Singh Commission report vide the said judgement, the Hon'ble Apex Court had effectively provided a cut-off date i.e. 07.05.2002 for regularization of encroachments on the forest land, after which there could not be any allotment of forest land and thereafter regularization of encroachments on the forest land in any form including allotment/use of forest land for agricultural or horticultural purposes was strictly prohibited. He accordingly contended that learned Single Judge could not appreciate that Deputy Commissioner passed the aforesaid order dated 02.07.
2003 violating direction of the Hon'ble Apex Court inasmuch as Hon'ble Apex Court in the aforesaid order specifically created a category of persons who had been identified as encroachers, had already been allotted land, but had not yet shifted, for whom, one month time was given till 07.06.2002 to shift to the allotted lands, in default, the allotment would be cancelled and as such, learned Single Judge failed to consider that the scheme framed by the Administration on 17.08.1987, only dealt with encroachments made in Revenue lands up to 31.12.
5.
The another part of the argument raised by Mr. Chakraborty is that in terms of Section 146 of Andaman & Nicobar Island Land Revenue and Land Reforms Regulations, 1966, the only competent authority to allot any lands is the Chief Commissioner, presently the Lieutenant Governor of the Andaman & Nicobar Islands and hence by directing implementation of the said order, the Hon'ble Single Judge has given its sanction to an order which was itself non est. Accordingly, Mr.Chakraborty contended that aforesaid writ petition is hopelessly barred by limitation wherein the writ petitioner has prayed for implementation of order after a lapse of sixteen years. It has also not been appreciated, that even otherwise the Deputy Commissioner's order dated 02.07.
2003, could not be implemented due to non-availability of de-reserved land in Kodiyaghat and also in view of the judgement of the Hon'ble Apex Court, there cannot be any regularisation or allotment of land in violation thereof. Finally, Mr. Chakraborty submitted that in view of above it is imperative that the impugned order be set aside and the matter may be remanded back to the learned Single Judge, for fresh hearing and to give an opportunity to the appellant to make out its case before this Hon'ble Court.
6.
Mrs. Anjili Nag, learned counsel appearing on behalf of the respondents submits that the appeal has been filed only to
harass the respondents and to save the unauthorised encroachers. The encroachers do not have any right to retain the land and the authority can very well remove the encroachers and allot the land to the respondents to implement their own order. Mrs. Nag further submits that the matter is not affecting large section of population because government policy cannot be to save the encroachers and as such, the Administration cannot take the plea of public interest or justice or for law and order, in order to harass the respondents. The order was passed by the Deputy Commissioner in 2003 and nineteen years have passed and the authorities absolutely have no reason for implementation of the said order.
7.
Mrs. Nag, further negated the contention raised on behalf of the appellant that after the aforesaid Hon'ble Apex Court judgement, the allotment cannot be made in favour of the respondents. She contended that learned council for the appellant has confused de-reserved land with reserved land. Dereserved land is not forest land. 8.
Having considered the aforesaid facts and circumstances of the case, we find that the order of the Deputy Commissioner dated July 2, 2003 is still in force. This Court vide its order dated 31st March, 2003, in WP No. 022 of 2003 directed the Deputy Commissioner to consider the representation of the respondents and accordingly the Deputy Commissioner vide its
order dated July 2003, passed the said order. It appears that said order passed by the Deputy Commissioner was never sought to be reviewed by the appellants either by way of questioning his authority to pass the said order or on the ground that the said order is against the direction made by the Hon'ble Apex Court in WP (C) No. 202 of 1995. It is only when the said writ application has been filed by the respondents in the year 2019 being WP No. 298 of 2019, for implementation of the aforesaid order of the Deputy Commissioner, they have come up, inter alia, with two fold allegations, firstly the Deputy Commissioner has passed the order violating the order of the Hon'ble Apex Court which was passed on 07.05.2002 in WP (C) No. 202 of 1995 and, secondly, the Deputy Commissioner has got no authority to make such order in view of Section 146 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966.
9.
On perusal of the order passed by Deputy Commissioner it appears that the said order was passed in compliance with the order dated 31.03.2003 passed by the Hon'ble High Court in WP No. 022 of 2003, taking into consideration, solemn direction contained in the order passed by the Hon'ble Apex Court in the case of Godavarman Thirumulpad vs. Union of India and others (supra). Said order further reflects that while considering the aforesaid judgement, the Deputy Commissioner held that in the
instant case the Forest official knowing fully well that the subject land was not at all a forest land, wilfully just to deprive the petitioner put temporary pillar and cut down the fruit bearing trees causing damage of the petitioner herein to the tune of Rs. 1,72,000/- and committed a public wrong. The relevant portion of the said order passed by the Deputy Commissioner may be quoted hereunder:
"Since the petitioner is a Pre-1978 encroacher in occupation land in the Kodiyaghat de-reserved block of Chidyratapu Bimblitan Reserved Forest Block-I declared vide notification No. GF/HQ/2(G)/5(A)/569 dated 12-01-84, the petitioner is to be settled in compliance of the order's of the Hon'ble Supreme Court of India dated 7-5-2002. Accordingly the Sub-Divisional Officer, South Andaman issued a notice to the petitioner on 6-6-2002 for vacating the excess area since the petitioner is Pre-78 encroacher with the dereserved block." 10.
In view of above the order of the Deputy Commissioner makes it palpably clear that the said order was passed, fully taking into consideration, the directions made by the Hon'ble Apex Court in the aforesaid judgement dated 07.05.2002 and said order was stated to have passed in compliance with the aforesaid judgement and not in derogation to directions made in the aforesaid judgement, as reflected in the body of the said order.
11.
The other part of the argument, that the Deputy Commissioner by passing said order has violated Section 146 of the Andaman and Nicobar Islands Land Revenue and Land
Reforms Regulations, 1966, is not also tenable in the eye of law, since the Deputy Commissioner has by the order merely recommended that the respondents' shortage of 0.31 hectares of land would be compensated by allotment of equal area within the same de-reserved block, which is reflected from the concluding part of the said order. Accordingly, by no stretch of imagination it can be said that the Deputy Commissioner has usurped the jurisdiction of Hon'ble Lieutenant Governor, in passing the said order and for which said order could not be sustained.
12.
In view of aforesaid discussion, we do not find any merit to admit the instant appeal for hearing and, as such, the appellant's prayer for admission of the appeal for hearing is hereby rejected in limine.
13.
However, in view of aforesaid facts and circumstance of the case, there shall be not order as to costs. 14.
Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all formalities.
(AJOY KUMAR MUKHERJEE, J.) 15.
I agree.
(MOUSHUMI BHATTACHARYA, J.)