Shri Birsa Munda v. The Deputy Commissioner And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/7/2023 Shri Birsa Munda Vs.

The Deputy Commissioner and others Mr. N. A.Khan ... for the appellant Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the respondents February 14, 2023 [SR] Item No.5 Heard Mr. N.A.Khan, learned counsel appearing for the appellant and Mr. Shatadru Chakraborty, learned counsel appearing for the respondents.

This appeal arises out of an order dated 13th December, 2022 passed by the Hon'ble Single Judge in WPA/569/2022 dismissing the writ petition filed by the present appellant on the ground that there is no infirmity in the order of the Deputy Commissioner, South Andaman District passed on 11th November, 2022, which has been impugned in the writ petition.

From the submissions of the learned counsel for the parties we gathered that the power of attorney holder of the present petitioner is in occupation of 169 sq.mtrs of government land. The petitioner wanted to deposit license fee/premium in respect of the aforesaid land. Such license fee/premium intended to be deposited by the petitioner was not accepted by the revenue department on the ground that the subject land was disposed of by the present respondent

in favour of Jhariya Toppo and the subject land is presently under occupation of Shri Naveen Toppo, power of attorney holder of the present petitioner. It was also mentioned in the order by the Deputy Commissioner, South Andaman District that submission of Shri Naveen Toppo, power of attorney holder of the petitioner, in course of hearing in WP/348/2017 and the written submission submitted by Shri Birsa Munda (present appellant) on 06.10.2021 are contradictory.

Aforesaid grounds in the impugned order passed by Deputy Commissioner having been accepted by Hon'ble Single Judge without any discussion, the order impugned in this appeal came to be passed dismissing the writ petition. Learned counsel for the appellant submits that the grounds relied on by the Deputy Commissioner, South Andaman District to the effect that the power of attorney holder of the petitioner is in occupation of the subject land vis-a-vis the subject land was disposed of by the petitioner in favour of one Jhariya Toppo are contradictory in view of the fact that that there is conflicting interest between the petitioner and his power of attorney holder. Further, the grounds taken by the Deputy Commissioner to the effect that there is contradiction in the submission of Naveen Toppo in WP/348/2017 and the written submission submitted by the appellant on 06.10.2021 are contradictory and is without any basis.

It is further submitted by learned counsel for the appellant that, had the petitioner been provided with an

opportunity to present his case, the petitioner would have been able to clear the doubt in the mind of the Deputy Commissioner, South Andaman District so far as the aforesaid contradictions culled out by him in the impugned order is concerned.

It is further submitted by learned counsel for the appellant that no opportunity of hearing was given to the appellant and the impugned order came to be passed in violation of principles of natural justice.

We also do not find any discussion in the order of the Hon'ble Single Judge regarding the points taken by the petitioner before him.

Learned counsel for the respondents, however, supports the impugned order.

Regard being had to the facts and submissions, we deem it just and proper to remand the matter to the Deputy Commissioner, South Andaman District for reconsideration afresh after giving opportunity of hearing to the appellant. The appellant, if so likes, may file petition detailing all the facts in his hand, enclosing all the papers, evidencing proof of the possession of the power of attorney holder of the subject land or that of the appellant. Such petition should be filed within three weeks from today or by such date as extended by the Deputy Commissioner.

If there is any record in the custody of the Deputy Commissioner, South Andaman District, which is adverse to the claim of the petitioner, the petitioner should be allowed to

inspect such records or he may be supplied with copy of such records to give rebuttal evidence, if necessary. The proceedings be disposed of keeping the petitioner posted by sufficient notice regarding day to day postings of the case. The entire exercise shall be completed within a period of six months from the date of receipt of the petition filed by the appellant as directed supra.

Till the disposal of the proceeding, the parties are directed to maintain status quo over the subject property. The impugned order dated 13.12.2022 passed by the High Court and the order dated 11.11.2022 passed by the Deputy Commissioner, South Andaman District are hereby set aside.

The appeal is accordingly allowed with the aforesaid direction. No order as to costs.

( Chitta Ranjan Dash, J.) ( Md. Nizamuddin, J. )