Shri. Newazesh Ali @ Nawazesh Ali v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/129/2025 Shri Newazesh Ali @ Nawazesh Ali Vs The Andaman and Nicobar Administration and others Ms. G. Mini ... for the petitioner Ms. Babita Das ... for the respondent nos.1 to 3 Ms. A.S.Zinu ... for the respondent no.4 March 03, 2025 [SR] Item no.2 1.

Ms. G. Mini, learned counsel appears for the petitioner. Ms. Babita Das, learned counsel appears for the respondent nos. 1 to 3. Ms. A.S. Zinu, learned counsel appears for the respondent nos.4 2.

The order impugned in this writ petition is dated February 21, 2025 Annexure P-17 at page 51 to the writ petition passed by the respondent no.4. Under the said impugned order, the petitioner has been directed to vacate the subject plot of land 3.

Ms. Mini, learned advocate appearing for the petitioner submits that the petitioner has been in uninterrupted possession of the subject land for long time wherefrom he has been carrying out his commercial business activities. Initiallly, the land was for residential purpose then by virtue of change of user, it was converted to a commercial land.

4.

The Airports Authority, claiming the said land, has initiated the eviction proceeding under sub-section(1) 28D of the Airports Authority of India Act, 1994 (for short the 1994 Act) in which the said order impugned in this writ petition was

passed which is the final adjudication under sub-section (1) to section 28D of the 1994 Act.

5.

Ms. Mini, learned counsel submits that before initiating the eviction proceeding, a demarcation process had taken place. In course of such demarcation, the petitioner was not present and it was a unilateral demarcation. Being aggrieved by the said demarcation report dated November 28, 2024, the petitioner has already preferred a First Revenue Appeal before the jurisdictional Sub Divisional Officer, Annexure P-16 at page 46 to the writ petition. The appeal is pending and the next date of hearing is fixed on March 06, 2025.

6.

Pending the said appeal from the demarcation report, the impugned order has been passed on February 21, 2025. 7.

Learned counsel for the petitioner submits that the demarcation report is the basis of the said eviction proceeding which, according to the petitioner, is bad in law and is not tenable, hence, so long the demarcation report is not adjudicated in the pending appeal before the jurisdictional Sub Divisional Officer, the entire eviction proceeding is bad in law and wholly without jurisdiction 8.

She further submits that the land record will show that the piece of land on which the petitioner is in possession does not belong to the Airports Authority of India. Therefore, the entire eviction proceeding has been initiated, is wholly without jurisdiction and should be set aside. The survey No.68 belongs to a third party and not to the Airports Authority. 9.

Ms. A. S. Zinu, learned counsel appearing for the respondent no.4, at the threshold, has taken the point of maintainability of the writ petition. She submits that the

impugned eviction order is appellable under section 28K of the 1994 Act. She further submits that the subject land in question in respect whereof the survey was carried out and ultimately the eviction proceeding was initiated and the impugned order has been passed for eviction, belongs to the Airports Authority and the Airports Authority is the owner of that land. The petitioner has no right, title and interest over the said land.

10.

Ms. Babita Das, learned counsel appearing for the respondent no.1 to 3 submits that, since the First Revenue Appeal is pending from the final order of demarcation, the instant writ petition is not maintainable. In addition, she has adopted the submissions of Ms. A.S.Zinu, learned counsel appearing on behalf of the respondent no.4 11.

Upon considering the rival contentions of the parties and upon perusal of the materials on record, at the threshold, it appears to this Court that there is existence of an alternative, efficacious remedy left open to the petitioner to challenge the said impugned order of eviction dated February 21, 2025, in terms of Section 28 K of the 1994 Act.

12.

Unless the petitioner unequivocally demonstrates before this Court that the Estate Officer is palpably lacking with inherent jurisdiction, the question of entertaining this writ petition does not arise in the facts and circumstances of the case. There is no doubt that an opportunity of hearing was granted to the petitioner and only thereafter, the impugned order was passed. Therefore the principle of natural justice has also been complied with.

13.

Now, the petitioner challenges the impugned order on merit. It is noted that the First Revenue Appeal filed by the petitioner is pending before the jurisdictional Sub Divisional Officer from the final order of demarcation. This Court has no hesitation to hold that the final order of demarcation should be and was the basis for initiation of eviction proceeding wherein the final order of eviction has been passed. Thus, the report on demarcation has merged with the said final order dated February 21, 2025. Since the petitioner is aggrieved with the final eviction order and his challenge to the demarcation report is also pending in the First Revenue Appeal, there shall be no bar for the petitioner and the petitioner shall be eligible to throw a challenge to both the said impugned demarcation report which is under challenge in the First Revenue Appeal and the final order of eviction dated February 21, 2025 at one single stroke before the jurisdictional forum. 14.

Inasmuch as, considering the issue involved in this writ petition, this court is also of the firm view that, to examine the demarcation report and on the basis of that order impugned in this writ petition, require certain fact finding enquiry to be carried out, which is not the job of a writ court. More so, an alternative appellate remedy is available under section 28K of the 1994 Act.

15.

In view of the above discussions and reasons, the petitioner shall be at liberty to file a composite appeal under section 28K of 1994 Act before the appropriate jurisdictional authority where the petitioner shall be at liberty to challenge both the said demarcation report dated November 28, 2024 and the instant impugned order dated February 21, 2025.

Consequently, the First Revenue Appeal pending before the jurisdictional Sub Divisional Officer shall be infructuous and accordingly shall stand to be disposed of, without any observation on the merit thereof.

16.

In the event, such a composite appeal is filed by the petitioner positively within a period of 10 days from date along with interlocutory application praying for stay of the eviction proceeding before the jurisdictional forum under section 28K of the 1994 Act, such jurisdictional forum, shall first take up the interlocutory application and dispose of the same within a period of one week from the date of filing of the said application after hearing the parties by passing a reasoned order. 17.

The jurisdictional forum then shall deal with the main appeal to be filed by the petitioner after granting opportunity of hearing to the parties thereto and shall dispose of the said appeal by passing a reasoned order in accordance with law within a period of three months from the date of filing of the said appeal.

18.

It is submitted that the petitioner is in possession of the subject land.

19.

There shall be an unconditional order of status quo with regard to the possession of the petitioner till three weeks from date.

20.

It is made clear that this Court has not gone into the merits of the rival contentions of the parties. The parties shall be at liberty to urge all their points before the jurisdictional forum under section 28K of the 1994 Act by disclosing all relevant records and documents they wish to rely upon.

21.

It is further made clear that, this order shall not create and right or equity in favour of the petitioner, in the event the petitioner does not succeed to his claim at any stage, either in the interlocutory application to be filed before the appropriate forum or in the appeal to be preferred by him, strictly in accordance with law.

22.

It is also made clear that, the observations, if any, made by the Court, shall not bind the jurisdictional forum while adjudicating the appeal and the interlocutory application under section 28K of the 1994 Act.

23.

Since the affidavits are not called for, the allegations in the writ petition are deemed not to have been admitted by the respondents.

24.

With the above observations and directions, this writ petition WPA/129/2025 stands disposed of, without any order as to costs.

( Aniruddha Roy, J. )