Shri G.Alpa Rao v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA/108/2024 Shri G. Alpa Rao ... Petitioner Vs.

The Andaman & Nicobar Administration and Ors. ... Respondents Mr. K.M.B. Jayapal ...for the Petitioner Mr. Arun S. Kumar ...for the Respondent Nos.1-6 Mr. M.K. Thakur ...for the Respondent No.7 With WPA/115/2024 Ramesh Chandra Nath ... Petitioner Vs.

The Lieutenant Governor and Ors. ... Respondents Mr. M.K. Thakur ...for the Petitioner Mr. Arun S. Kumar ...for the Respondent Nos.1-6 Mr. K.M.B. Jayapal ...for the Respondent No.7 February 07, 2024 (M.A.Mobin) Item Nos.1 & 2 The Writ Petitioner in WPA 108 of 2024 claims to have encroached upon a land being survey No.1/P measuring an area of about 500 Sq. mtrs. situated at Village-Pahargaon under Port Blair Tehsil in the South Andaman District some times in the year 1988 and raised a dwelling house thereupon. The said Writ Petitioner claims

to be residing in the said dwelling house along with his family members.

The Tehsildar, Port Blair Tehsil passed an order under Section 202 of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 on 19th January, 2024 directing the petitioner to vacate the unauthorized occupation in respect of Survey No.1/P of Pahargaon village. Thereafter a notice dated January 31, 2024 was issued by the Assistant Commissioner(Legal) directing the petitioner to attend the meeting to be convened in the Chamber of the Chief Secretary, Andaman & Nicobar Administration, Secretariat, Port Blair on 1st February, 2024.

The grievance of the petitioner in WPA 108 of 2024 is that when the petitioner attended the meeting on 1st February, 2024 in the chamber of the Chief Secretary he was threatened to vacate the said property. Challenging the order of the Tehsildar dated 19th January, 2024 and the alleged action of the Chief Secretary in threatening the petitioner in the meeting convened on 1st February, 2024, WPA 108 of 2024 has been filed.

The private respondent in WPA 108 of 2024 namely Shri Ramesh Chandra Nath filed a Writ Petition being WPA 115 of 2024 praying for issuance of a mandamus commanding the Respondents to execute the order dated 19th January, 2024 passed in R.C. No.167/TPB/2023.

Mr. Jayapal, learned Advocate appearing for the petitioner in WPA 108 of 2024 submits that the order passed under Regulation 202 of the 1966 Regulation is subject to the right of an aggrieved party to establish his right in a Civil Court. He further submits that the authority should be restrained from implementing the order dated 19th January, 2024 passed in R.C. No.167/TPB/2023 as the writ petitioner intends to file a Civil Suit. He further submits that the wife of the petitioner in WPA 115 of 2024 has instituted a Civil Suit for his eviction from the selfsame property and the Tehsildar without taking into consideration the said fact passed the order dated 19th January, 2024. He thus submits that when the issue of eviction of the petitioner in WPA 108 of 2024 in respect of Survey No.1/P of Pahargaon village is the subject matter of Civil Suit, no order of eviction could have been passed by the concerned Tehsildar.

Mr. Jayapal further refers to a decision of a Hon'ble Division Bench of this Court in MAT 1663 of 2007 in the case of Bay Islands Hotel Ltd. vs. The Tehsildar and Ors. delivered on July 9 of 2007 in support of his contention that the order dated 19.1.2024 is subject to the decision of the Civil Court.

Mr. Kumar, learned Advocate appearing for the A & N Administration submits that the order passed under Section 202 of the 1966 Regulation is an appealable order and the appeal lies before the concerned Sub-Divisional

Officer in view of Regulation 28(1)(a) of the said Regulations. He, therefore, submits that the Writ Petition is not maintainable and the same is liable to be dismissed in limini.

The learned Advocate representing the petitioner in WPA 115 of 2024 also challenges the maintainability of WPA 108 of 2024 in view of Regulation 28(1)(a) of the 1966 Regulation. He further submits that the petitioner in WPA 115 of 2024 is not a party in the Civil Suit and therefore the allegation of Mr. Jayapal that the petitioner has suppressed the filing of the Civil Suit does not arise at all. Heard the learned Advocates for the parties and perused the materials placed.

Regulation 202(7) of the 1966 Regulation states that no order made under Sub-section 1 shall prevent any person from establishing his right in a Civil Court. Upon reading Regulation 202 and more particularly Subregulation 7 of Regulation 202 this Court is of the considered view that the petitioner is free to establish his right in a Civil Court irrespective of an order passed under Regulation 202(1) of the 1966 Regulation. Sub-regulation 8 of Regulation 202 states that if notice of an intention to institute a suit is delivered to the Tehsildar, he shall desist from carrying out his order under Sub-section 1 for a period of 3 months and if such suit is filed within such period he shall stay his proceedings pending the decision of the Civil Court.

After going through the order of the Tehsildar dated 19th January, 2024 it does not appear that an opportunity of hearing was afforded to the petitioner in WPA 108 of 2024. The said order has serious civil consequences as the petitioner was directed to vacate the property in question. However, since such an order cannot prevent an aggrieved party from establishing his right in a Civil Court in view of Regulation 202(7) and as the petitioner through his learned Advocate has expressed intention to institute a suit, this Court is of the considered view that an opportunity may be granted to the petitioner to issue a notice in terms of Regulation 202 Sub-regulation 8 of the 1966 Regulation or to file a suit within a specified time frame.

Since Regulation 202(7) of the 1966 Regulation recognizes the right of an aggrieved party to establish his right in a Civil Court and the action of the Chief Secretary at the meeting convened pursuant to a notice dated January 31, 2024 is under challenge in WPA 108 of 2024 and also that the order dated 19.1.2024 was issued without giving any opportunity of hearing, this Court is inclined to entertain this Writ Petition as it is well settled that availability of an alternative remedy cannot be an absolute bar in entertaining a Writ Petition.

In so far as the prayer of the Writ Petitioner in WPA 115 of 2024 for execution of the eviction order dated 19th January, 2024 in R.C. No.167/24, this Court is of the considered view that issuance of a mandamus at this stage

would amount to snatching away a valuable right of the Writ Petitioner in WPA 108 of 2024 to establish his rights before the Civil Court which has been recognized by the 1966 Regulations. For such reason this Court is not inclined to grant any relief in favour of the petitioner in WPA 115 of 2024 at this stage and accordingly the same stands dismissed.

WPA 108 of 2024 is disposed of by giving liberty to the petitioner to deliver a notice of his intention to institute a suit to the concerned Tehsildar on or before February 14, 2024. It will be also be open to the petitioner in WPA 108 of 2024 to file a suit on or before February 14, 2024 or within the time limit as stipulated in Regulation 202(8) of the 1966 Regulations. Considering the fact that Mr. Kumar, learned Advocate appearing for the Respondents/Administration on February 2, 2024 submitted that no final decision to evict the petitioner from the property in question in WPA 108 of 2024 has been taken and considering the events that took place subsequent to the passing of the order dated 19.1.

2024 and the time spent before this Court, this Court directs the concerned Tehsildar not to take any further steps pursuant to the order dated 19th January, 2024 passed in R.C. No.167/TPB/2023 till February 15, 2024. In Bay Islands Hotel Ltd.

Regulation 202 of the 1966 Regulation. The said decision being distinguishable on facts do not have any manner of application to the case at hand.

Since no affidavits have been called for either in WPA 108 of 2024 or in WPA 115 of 2024 the allegations contained therein shall not be deemed to have been admitted by the respective respondents.

Parties to act on a server copy of this order duly collected from the official website of the Hon'ble High Court at Calcutta.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.

(Hiranmay Bhattacharyya, J.)