Ishtiak Ali v. The Assistant Commissioner (Settlement) And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ...

MA/8/2022 Ishtiak Ali ... Appellant Vs.

The Assistant Commissioner (Settlement) And others ... Respondent Mr.Ananda Halder ... for the appellant Mr. V.D.Sivabalan ... for the respondent December 14, 2022 [SR] Item No.4 The short question comes for consideration is to whether the order dated 9th February, 2022 passed by the Assistant Commissioner (Settlement) under a Scheme of the Central Government dated 15th July, 2003 for regularisation of excess area and possession of Pre-1942 settlers and their legal heirs is an order within the meaning of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 ( 1966 Regulations).

The grievance of the petitioner against the said order is that he and his brothers by a settlement and/or arrangement have accepted that the said land would devolve exclusively upon the appellant and not his brothers.

Learned Single Judge in the impugned order was of the view that the Regulation 28 of the aforesaid 1966 Regulation gives a right of appeal against any order passed thereunder. The writ petition was dismissed in view of such alternative remedy.

It is clear and explicit from the impugned order that the same has been passed under a Scheme and not under the 1966 Regulations. The reliance placed by learned counsel for the appellant on a decision of a Coordinate Bench dated 20.11.2021 in MA/41/2014 is acceptable in the instant case.

The relevant portion of the said order is set out hereinbelow.

"A bare reading of Regulation 28 shows that an appeal shall lie from every original order passed under this Regulation or the Rules made thereunder and therefore, the order impugned in the writ petition not being an order either passed under the Regulations or under any of the Rules framed thereunder, is not appealable under Regulation 28 of the said Regulations and as such, there was no scope for holding that Regulation 28 provided an efficacious alternative relief. There being no scope for filing any appeal, let alone a second appeal, the writ petition could not be dismissed on the ground of alternative remedy."

Learned counsel for the respondent referred to a decision of the Division Bench of this Court in the case of Thesleema M.K.

vs.

Andaman and Nicobar Administration and others dated 28th July, 2022 passed

in MAT/5/2021.This Court has carefully considered the same and finds that the facts of the said case are completely different from the facts of the instant case. The decision has no manner of application.

In the above circumstances, this Court is of the view that the writ petition is maintainable. The impugned order is set aside and the matter is remanded back to the learned Single Bench for a decision on merits. MA/8/2022 is allowed and disposed of.

There shall be no order as to costs.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

( Rajasekhar Mantha, J. ) ( Bibhas Ranjan De, J.)