Nazneen Begum v. The Andaman And Nicobar Administration And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA/116/2024 Smt. Nazneen Begum ... Petitioner Vs.
The Andaman & Nicobar Administration and Ors. ... Respondents With WPA/117/2024 Shri Sajjad Hussain ... Petitioner Vs.
The Andaman & Nicobar Administration and Ors. ... Respondents With WPA/119/2024 Shri Sabab Hussain ... Petitioner Vs.
The Andaman & Nicobar Administration and Ors. ... Respondents Mr. K.M.B. Jayapal ...for the Petitioners Mr. Arun S. Kumar ...for the Respondent nos.1-3 Mr. Pardeshia Munda ...for the Respondent no.4 February 08, 2024 (M.A.Mobin) Item Nos.2, 3 & 4 These Writ Petitions are taken up for analogous hearing with the consent of the parties as identical questions of law and fact are involved.
The petitioners have filed separate Writ Petitions challenging the order of the Tehsildar, Port Blair Tehsil dated January 29, 2024 in R.C No.2613/TPB/2023 and for a direction upon the Respondent authorities not to
interfere with and disturb the possession and enjoyment of the Writ Petitioners over the plot being Survey No.1071/1 at Junglighat Village.
The petitioners claim to be the recorded co-tenants in respect of license land bearing Survey No.1071/1, measuring an area of about 0.025 hectares, which has been classified as House Site at village Junglighat under Port Blair Tehsil in the District of South Andaman. The grievance of the petitioners is that the Tehsildar passed an order of eviction from Government Revenue Land bearing Survey No. 1069 of Junglighat Village within the time limit specified in the said order upon arriving at a finding that the petitioners are in unauthorized occupation of the said land.
It is the specific case of the petitioners that they are in occupation of the plot being Survey No.1071/1 and have raised construction thereupon after obtaining sanction/approval from the Port Blair Municipal Council. The petitioners state that they have not encroached upon the Government Revenue Land being Survey No. 1069 of Junglighat village.
Mr. Jayapal, learned Advocate appearing for the petitioners, submits that pursuant to the notice dated 09th January, 2024 a demarcation was carried out on 10th January, 2024. The petitioners by letters dated 10th January, 2024 requested the concerned Tehsildar to
provide them with the certified copy of the demarcation report.
Mr. Jayapal submits that the concerned Tehsildar issued a notice dated 22nd January, 2024, directing the petitioners to appear before him in the hearing on 29th January, 2024.
Mr. Jayapal submits that the petitioners duly attended the said hearing, but since the certified copy of the demarcation map was not supplied to the petitioners on or prior to the date fixed for hearing, the petitioners could not defend themselves in the said proceeding effectively.
Mr. Kumar, learned Advocate representing the Andaman & Nicobar Administration raised serious objection as to the maintainability of this Writ Petition as the order impugned in these Writ Petitions is an appealable one under Regulation 28(1)(a) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulations 1966.
By referring to Regulation 99 of the 1966 Regulations, Mr. Kumar submits that any dispute regarding demarcation of the boundary has to be raised before the Deputy Commissioner, whose decision shall be final in terms of Sub-Regulation 3 of Regulation 99 of the 1966 Regulations. He further submits that since the issue involved in these Writ Petitions relates to a dispute
regarding demarcation of the boundary, the petitioners should be relegated before the concerned Deputy Commissioner.
The learned Advocate appearing for the private respondent adopts the argument of the learned Advocate appearing for the Administration in so far as the maintainability of this Writ Petition is concerned. He further submits that pursuant to an order passed in WPA 639 of 2023, the concerned Tehsildar carried out the work of demarcation and found that the petitioners have encroached upon the Government Revenue Land bearing Survey No.1069 of Junglighat Village and therefore this Court should not interfere with such order.
Heard the learned Advocates for the parties and perused the materials placed.
Since, the learned Advocates for the respondents have raised serious objection against maintainability of these Writ Petitions, this Court proposes to deal with such issue at the outset.
On a query of this Court as to whether the demarcation report was supplied to the Writ Petitioners prior to the hearing conducted on 29th January, 2024, Mr. Kumar learned Advocate, upon taking necessary instructions from the Administration, admitted that the copy of such demarcation report was not supplied to the
petitioners on or before the hearing conducted by the Tehsildar on 29th January, 2024.
After going through the said order dated January 29, 2024 this Court finds that the demarcation report prepared on the basis of the demarcation conducted on 10th January, 2024, is the foundation of the order dated January 29, 2024. It is well settled that any material which is sought to be used or relied upon by an authority in the decision making process has to be supplied to the person who may be affected by such decision.
Since, it has been admitted by the Administration that the copy of the demarcation report was not supplied to the petitioners on or before the date of hearing, nonsupply of such vital document results in gross violation of the principles of natural justice.
It is well settled that existence of an alternative efficacious statutory remedy cannot be a bar in entertaining and deciding the Writ Petition, if there has been violation of the principles of natural justice. In so far as the objection of the learned Advocates for the respondents that any dispute regarding demarcation of the boundary has to be raised before the Deputy Commissioner who has been authorized to decide such issue in terms of Regulation 99 (3) of the 1966 Regulations, this Court is of the considered view that since an ultimate decision on the basis of the
demarcation report has been taken by the concerned Tehsildar and such decision is under challenge in these Writ Petitions, Regulation 99 (3) cannot be an embargo in entertaining these Writ Petitions.
For all the reasons as aforesaid, this Court is inclined to entertain these Writ Petitions and to decide the same.
By the order impugned the petitioners were directed to vacate/remove unauthorized occupation upon the Government Revenue Survey No.1069. The said order has serious civil consequences. A proceeding of such nature requires an effective opportunity to be afforded to defend. An opportunity of hearing without supplying the materials which the decision taking authority proposes to rely upon cannot be said to be an effective one as rightly contended by Mr. Jayapal.
As it has already been observed hereinbefore that the Tehsildar passed the order dated 29th January, 2024 relying upon the demarcation report and such report was not made available to the petitioners on or before the date of such hearing, this Court holds that the said order dated 29th January, 2024 is liable to be set aside and quashed on that ground alone.
Pursuant to the order dated February 7, 2024 Mr. Kumar, learned Advocate for the Respondents/ Administration files a copy of the demarcation map and
report. A copy of such demarcation map and report has been supplied to Mr. Jayapal, learned Advocate for the petitioners prior to the commencement of hearing of these Writ Petitions.
Since, the demarcation map and report has been supplied to the petitioners, it will be open to the petitioners to deal with the same and to make appropriate submission in this regard before the concerned Tehsildar in the hearing to be conducted in terms of this order.
For all the reasons as aforesaid, the order dated 29th January, 2024 is set aside and quashed.
The Tehsildar, Port Blair Tehsil being the Respondent No.3 is directed to re-hear RC No.2613/TPB/2023 and after giving an opportunity of hearing to the Writ Petitioners, Smti. Mary Jacinta Toppo at whose instance the proceeding was initiated by the Tehsildar, and after considering the submissions of the respective parties dispose of the same by passing a reasoned order as expeditiously as possible but positively within a period of four weeks from the date of receipt of a server copy of this order. The said order shall be communicated to the parties immediately thereafter. After this order was passed, Mr. Jayapal expressed an apprehension that the petitioners may be evicted the following day of passing the order of eviction. This Court
finds that an order of eviction passed by the Tehsildar is an appealable one under Regulation 28 of the 1966 Regulations and the period of limitation has been prescribed in Regulation 30 thereof. Regulation 35 also empowers the Revenue Officer to pass an order of stay of execution of the orders for the period as specifically mentioned therein. This Court makes it clear that it will be open to the petitioners to work out their remedies in accordance with law and avail all the recourses available under the said Regulation.
The allegation of the Writ Petitioners that the copy of the demarcation map has not been supplied to the Writ Petitioners on or before the date of hearing has been admitted in course of hearing of this Writ Petition. However, since no affidavits have been called for other allegations in the Writ Petitions shall not be deemed to have been admitted by the respondents. WPA 116 of 2024, WPA 117 of 2024 and WPA 119 of 2024 are disposed of.
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.)