P.Ameena Kutty v. Andaman And Nicobar Administration And ORS.
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA/222/2021 P. Ameena Kutty ... Petitioner Vs.
The Andaman and Nicobar Administration and others ... Respondents Mr.Mohammed Tabraiz ... for the petitioner Mr. V.D.Sivabalan Mr. A.S.Kumar ... for the respondents December 23, 2022 [SR] Item No.1 The writ petitioner purchased the land in question under a sale deed in April, 2018.
Permission to transfer the house site in question was granted in favour of the vendor, from who the petitioner purchased the house site in question on April, 2018 after the enforcement of the Andaman and Nicobar Islands Land Revenue and Land Reforms (Amendment) Rules, 2017 that was enforced by the Lieutenant Governor on the 17th January, 2018.
By the amendment of Rules, the Rule 9 was introduced.
The petitioner now wants to sell and dispose of by transfer the said house site without effecting any conversion in the nature and character of land. She is in need of money for her son's medical treatment.
The respondents have, by invoking Rules 9(b) of the Rules as above, refused to permit the same. It is contended by the Administration that transferring by the petitioner is occurring within ten years of the land having been converted from agricultural to housing (2017).
Rule 9 of the said amended Rules prescribes as follows:- "9. Rule 168(A) of the Principal Rule shall be substituted as under:- "Permission under Sub-Section 9 of Section 159, to a licensee to transfer his interest in any non-agriculture land being a house site shall not be granted, unless the following conditions are satisfied, namely:- (a) The licensee concerned shall not be a defaulter in payment of any Government dues.
(b) The applicant shall not transfer the land within 10 years from the date of diversion. If the application wants to transfer the interest of land without executing the project/plan or within 10 years from the date of conversion then the advantage of land conversion shall not be transferable and the land shall be transferred on with its original land classification. (c) The licensee should not have in his possession any area of land in excess of the area which was actually allotted to him i.e. he shall not be an encroacher. Permission to an encroacher shall be granted on after duly vacated; and"
Mr. Tabraiz, learned counsel for the petitioner would argue that firstly, if at all the restriction under Rule 9 (b) would apply in respect of a transfer being effected after a conversion of a land, post coming into force of the Rules. In the instant case, the diversion (conversion) from agricultural to residential having occurred in the year 2017
and a transfer thereafter albeit in favour of the petitioner having been permitted by the Administration, there can be no further restriction on the transfer of the land by invocation of Rule 9(b) as above.
It is further submitted by Mr. Tabraiz that the Administration is seeking to give retrospective effect, to the subordinate legislation which is outside the scope of the parent Regulations, 1966 (Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966). There is substance in the argument of the writ petitioner. Whatever be the object and purpose of the amendment of the Rules in 17th January, 2018, it is now well settled that any restriction on the rights of a citizen to be applied retrospectively, requires statutory authority and an express provision to that effect.
In the instant case, neither does Regulation 41 of 1966 Regulation permits the Lieutenant Governor to frame any Rules with retrospective effect, nor has any retrospective effect been conceived of or specified in the amendment rules of 2018 themselves.
In the above facts and circumstances of this case and on a plain reading of Rule 9 set out hereinabove, this Court is of the clear view that unless there is a diversion, conversion of land, post coming into force of the 2018 Rules, the mischief under Rule 9(b) cannot come into play, nor can it attract the restriction conceived under Rule 9(b) thereunder.
The nature and character of the land remains unaltered since the last conversion in the year 2017, prior to coming into force the rules. The proposed transfer by the petitioner of the subject land is also without changing its nature and character.
In the above circumstances, the impugned order dated 13th August, 2021 is illegal and is hereby quashed and set aside.
The Deputy Commissioner, South Andaman is hereby directed to forthwith permit transfer by the petitioner of the land in question more fully described in the agreement and/or conveyance annexed to the writ petition. This Court has not made any formal pronouncement on the Constitutional vires of the said 2018 amendment as it is not warranted in this facts of the case. The vires issue is left open for being adjudicated in accordance with law in an appropriate proceeding.
WPA/222/2021 stands disposed of.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
( Rajasekhar Mantha, J. )