Calcutta High CourtWPA/264/2021dismissed

Vinay Pal Singh v. The Lieutenant Governor And Others

2022-07-29Hon'Ble Justice Hiranmay Bhattacharyya15 pages

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE HIRANMAY BHATTACHARYYA WPA/264/2021 Vinay Pal Singh ... Petitioner

Versus

The Lieutenant Governor and others ... Respondent With WPA/69/2022 Vinitha Kumari ... Petitioner

Versus

The Lieutenant Governor and others ... Respondents For the petitioners : Mr. KMB Jayapal For the respondents : Mr. Shatadru Chakrabory For the private respondent : Mr. Ananda Halder Heard on : July 27, 2022 Judgment on : July 29, 2022 HIRANMAY BHATTACHARYYA, J.

Under challenge in these writ petitions is the order No. 158 dated September 12, 2021 passed by the Lieutenant Governor, Andaman and Nicobar Islands.

The writ petitioners are the heirs of one Shanta Kumari since deceased. They are brother and sister by relation. Since the issues involved in these writ petitions are identical and the order under challenge is one and the same, both the writ petitions were heard analogously and are decided by this judgement and order.

The writ petitioners claim that their maternal grandfather namely Baij Nath was an encroacher of a government revenue land bearing survey no. 336/2 and 336/3 at School Line Village since prior to 1962. The Administration decided to regularise the aforesaid land in the name of the successors of Baij Nath and a recommendation was made by the High Power Committee wherein the name of the successors of Baij Nath figured in the recommendation list. The said committee forwarded its recommendation to the Lieutenant Governor and upon the same being approved, the Deputy Commissioner District of South Andaman issued license in exercise of the powers conferred upon him as per the Andaman and Nicobar Island Land Revenue & Land Reforms Regulation, 1966 (for short the "1966 Regulations") and the Andaman and Nicobar Islands Land Revenue & Land Reforms Rules, 1968 on 5.10.1989. In the relevant land records the names of the successors of late Baij Nath was recorded.

Upon a complaint made by the private respondent herein on 08.10.2010 before the Deputy Commissioner, South Andaman District for cancellation of license issued in favour of the children of Late Baij Nath in respect of the property being survey no. 336/2 and 336/3 an order was passed on November 19, 2018 by the Deputy Commissioner South Andaman District thereby confirming the cancellation order and for approval of such order by the Lieutenant Governor. 5.

The petitioners challenged the said order by filing writ petitions being WP 308 of 2018 and WP 309 of 2018 which were disposed of by order dated January 10, 2019 by directing the Lieutenant Governor to take a decision after taking into consideration the documents filed by the respective parties. On appeals being MA 018 of 2020 and 019 of 2020 preferred against the said order, the Hon'ble Division Bench by an order dated February 23, 2021 directed the Lieutenant Governor to follow the direction contained in the order dated 10.01.2019 along with the direction passed by the Division Bench. 6.

Thereafter the Hon'ble Lieutenant Governor by the order being No. 158 dated September 12, 2021 passed an order cancelling the license provided to the children of late Baij Nath to occupy the agricultural land being survey no. 336/2 and 336/3.

The petitioners have filed separate writ petitions praying for issuance of a writ in the nature of mandamus to command the respondents to set aside, quash, cancel and/or rescind the aforesaid order dated September 12, 2021.

Mr. Jayapal, learned advocate representing the writ petitioners contended that neither the 1966 Regulations nor the conditions for grant of license empower the Administration to cancel the license issued in favour of the predecessor in interest of the writ petitioners. Therefore, the Administration exceeded its jurisdiction by passing the order impugned. He further submitted that the documents relied upon by the concerned authority while passing the impugned order were not supplied to the petitioners and as such there has been a gross violation of the principles of natural justice in the instant case. Mr. Jayapal further contended that a Coordinate Bench by the order dated January 10, 2019 directed the authority to consider the case of the writ petitioners who are claiming only through Shanta Kumari i.e. the daughter of Late Baij Nath. 9.

Mr. Chakaraborty, learned advocate appearing for the Administration raised an objection as to the maintainability of these writ petitions in view of existence of alternative and efficacious remedy by way of an appeal under the 1966 Regulations under Regulation 28 of the 1966 Regulations. He further contended that the Hon'ble Lieutenant Governor after

considering the materials placed by the respective parties passed the order dated September 12, 2021 and the writ court in exercise of the powers of judicial review cannot act as the appellate court and re-appreciate the evidence for arriving at a different conclusion. He therefore prayed for dismissal of the writ petitions.

10. Mr. Halder, learned advocate representing the respondent no. 4 contended that the writ petitioners had been filing writ petitions one after the other with forged documents. He contended that the name of one "Brij Nath" appears in the encroachment register as an encroacher. He further contended that the name of the said encroacher namely "Brij Nath" has been tampered with to make the name appear as "Shri Baij Nath". He next contended that "Baij Nath" died sometimes in the year 1982 but the application for regularisation was filed in the year 1989 in the name of Baij Nath which is nothing but an act of fraud. He further contended that "Baij Nath" and "Brij Nath" were distinct persons. He also submitted that the private respondent submitted all relevant documents before the Hon'ble Lieutenant Governor and a copy of the same was supplied to the writ petitioners and as such the contention of Mr. Jayapal that the petitioners were not aware of the documents relied upon by the concerned authority is without

any basis. Mr. Halder submitted that this writ petition should be dismissed with exemplary costs.

11. Heard the learned advocates for the parties and perused the materials on records.

12. Right of appeal is a creature of statute. The appealable orders as well as the appellate authorities have been provided under Regulation 28 of the 1966 Regulations. The 1966 Regulations do not confer any right to an aggrieved party against an order passed by the Hon'ble Lieutenant Governor. In view thereof, this Court is of the considered view that this writ petition challenging an order passed by the Hon'ble Lieutenant Governor is maintainable.

13. For the purpose of deciding whether the impugned order was passed in accordance with the directions of the Hon'ble Division Bench, it would be relevant to extract a portion of the order dated January 10, 2019 passed by the Coordinate Bench in WP 309 of 2018 as the same was heavily relied upon by Mr. Jayapal in course of his argument:

"This writ petition is disposed of by directing the petitioner as also Lalta Prasad to file such evidences/documents they would like to rely upon before the decision is taken by the Hon'ble Lieutenant Governor. Such documents to be filed within a week from date before the Deputy Commissioner, South Andaman district by both the parties. The said documents shall be forwarded by the Deputy Commissioner, South Andaman to the Lieutenant Governor in respect of the said case so that the Hon'ble

Lieutenant Governor may take a decision on perusal of those documents as well.

Needless to mention that if the Hon'ble Lieutenant Governor finds that the petitioner has been able to satisfy with adequate evidence, that Baij Nath was an original encroacher and Brij Nath and Baij Nath are the same person then the matter may be remanded to the Deputy Commissioner for further decision and if the Hon'ble Lieutenant Governor finds that the petitioner has not been able to make out a case in this regard, the Hon'ble Lieutenant Governor shall pass necessary orders and decide the matter finally. The petitioner shall be intimated the decisions for rejection by the Hon'ble Lieutenant Governor.

This exercise shall be completed as urgently as possible. It is made clear that the petitioner along with his sister and another Vikas Pal Singh is claiming only through the daughters Shanta Kumari of Baij Nath and the decision shall be restricted to such area as per the records being 1/4th share of Baij Nath and the other heirs of Baij Nath will not get any advantage of this order or any decision taken by the authorities in this regard."

14. From the aforesaid order it is evident that the Hon'ble Lieutenant Governor was to be satisfied that (i) Baij Nath was an original encroacher and (ii) "Brij Nath" and "Baij Nath" are the same person.

15. It further appears from the aforesaid order that parties were given liberty to file such evidences/documents which they would like to rely upon before the decision is taken by the Hon'ble Lieutenant Governor.

16. Though it appears from the order dated September 12, 2021 that a written submission was filed by the petitioners before the concerned authority but no documents in support of their claim was produced by them. It is not disputed by Mr. Jayapal in course of hearing that the private respondent

supplied the documents along with the copy of the written statement which were filed by them before the concerned authority to the petitioners. Therefore it does not lie in the mouth of the petitioners to contend that they were taken by surprise.

17. When a challenge is thrown to the acquisition of right and interest of the predecessor-in-interest of the petitioner, it was incumbent upon the petitioners to produce evidences to support the basic foundation of their right. In course of hearing Mr. Jayapal relied upon the recommendation made by the committee for regularisation. It would be evident from the said recommendation that the same was subject to several conditions including filing a statement on oath in the prescribed form before issue of license. When the basic foundation of the right of the petitioners is under challenge, the said recommendation simpliciter, cannot be said to be sufficient for the purpose of defending an action for cancellation of the license. The onus to prove that predecessorin-interest of the petitioners fulfilled the eligibility criteria for a license to be issued in his favour lies upon the petitioners and the same cannot be shifted to the complainant.

18. The Coordinate Bench granted liberty to the petitioners to produce evidences/documents in support of their claim qua the issues framed by the coordinate bench as indicated

hereinbefore but no such documents appeared to have been filed by the petitioners herein before the concerned authority. Thus the petitioners failed to discharge their onus in the instant case.

19. The Hon'ble Lieutenant Governor after considering the materials placed by the parties arrived at a finding of fact that Baij Nath became the absolute owner in respect land bearing survey no. 267 measuring an area 1.10 hectors situated at Sippighat village under Ferrargunj Tehsil. It was further found by the said authority that the land bearing survey nos. 196/1/1, 196/1/B, 196/2 and 197/2 situated at School Line village under Port Blair Tehsil also stood recorded in the names of Shri Baij Nath and six others since 1962 which was subsequently sold to one Bhagat Singh in the year 1980. The authority after taking note of the relevant policy held that Baij Nath was not a land less person.

20. It was further found by the said authority, on facts, that as per the original record of the Revenue Department, the name of one "Shri Brij Nath" was entered in the encroachment register of School Line village on 23.02.1966.

21. After considering the death certificates of "Baij Nath" and "Brij Nath" the Hon'ble Lieutenant Governor held that Shri Baij Nath and Shri Brij Nath are different persons having landed property in the School Line village.

22. After considering the object of the scheme of regularisation it was held that since the members of the same family namely Shri Inder Nath and Ashok Nath already had land registered in their names, no land can be regularised to the other family members of the same family under the scheme.

23. It was further held that the petitioners failed to produce any document to show that their predecessor namely "Baij Nath" was pre-1978 encroacher of the aforesaid government land and was land less at the time of regularisation.

24. On the basis of the aforesaid factual findings, the Hon'ble Lieutenant Governor passed the order dated September 12, 2021 thereby cancelling the license provided to the children of late Baij Nath in respect of the aforesaid plots bearing survey nos. 336/2 and 336/3.

25. The Regulation 146 (ii) of the 1966 Regulations empowers the Chief Commissioner to grant a license in writing to any person to occupy any land to such extent and for such purpose as may be prescribed.

26. Regulation 147 provides for cancellation of the license in case the licensee fails to occupy the land and construct a building on the site within a period of two years from the date of grant of the license or within such further time as Deputy Commissioner may allow.

27. Mr. Jayapal would contend that it has not been alleged by the concerned authority that the petitioner either failed to occupy the land and construct a building there on within the time limit mentioned under Regulation 147 or that the licensee failed to observe any condition mentioned in the license or that he has failed to comply with any provision of the 1966 Regulations and the Rules framed thereunder and as such the statutory authority cannot cancel the license issued to the petitioners. He would contend that the grounds for cancellation of the license of the petitioners do not fall within the four corners of the 1966 Regulations or the Rules framed thereunder. In support of such submission he reminded the Court of the well settled principle of law that a statutory authority has to act within the four corners of the statute. In other words, the contention of Mr. Jayapal is that the Hon'ble Lieutenant Governor could not have cancelled the license on the ground mentioned in the impugned order which are not contemplated either under the Regulations or the Rules framed thereunder.

28. Regulation 147 of the 1966 Regulation empowers the authority to cancel the license. Rule 164 (ii) of the 1968 Rules provides that a license shall be granted in Form "AG-1", "AG-2" or "AG-3". From the documents annexed to the writ petition it

appears that the petitioners have relied upon the license issued in Form "AG-2". Form "AG-2" stipulates that the granting authority may cancel or modify the license if the licensee fails to observe any conditions mentioned in the license or to comply with the provisions of the 1966 Regulations and the Rules made thereunder.

29. An authority vested with the power to issue license has the power to cancel and/or revoke the same. No specific bar has been laid down either in the Regulations or in the Rules framed thereunder to curtail such general power. Upon a conjoint reading of the 1966 Regulations and the Rules framed thereunder this Court holds that the power of cancellation of the granting authority is very wide and the special conditions for cancellation of license as provided in the 1966 Regulations and the Rules framed thereunder, as argued by Mr. Jayapal by referring to various provisions of the 1966 Regulations and the Rules framed thereunder are in addition to the general power of the Licensing authority to cancel the license.

30. Now the next issue that arises is whether the license can be cancelled on the grounds mentioned in the impugned order.

31. From the recommendation made by the High Power Committee for regularisation it is evident that the license shall be issued subject to a statement being made on oath by the

encroacher. The basic criteria for obtaining the license is that the original encroacher through whom the petitioners are claiming right has to be a pre-1978 encroacher of the government revenue land and he must be a land less person at the time of regularisation.

32. The petitioners are claiming right through Shri Baij Nath, who according to them, applied for regularisation being eligible under the relevant scheme pursuant to which the license was issued. The Hon'ble Lieutenant Governor, after considering the materials placed by the parties, held that the claim made by the petitioners is clearly false. Eligibility under the relevant scheme is the precondition for issuance of license. If the authority granting a license subsequently finds that such person was not eligible to the license issued in his favour, nothing in law can prevent the competent authority from exercising its power to cancel the same on such ground.

33. This court therefore holds that the authority had the power to cancel the license on the grounds mentioned in the impugned order.

34. It is well settled that judicial review is directed not against the decision but is confined to examination of the decisionmaking process. Judicial review is nothing but a review of the manner in which the decision was arrived at. The Court while

exercising the power of judicial review must remain conscious of the fact that if the decision is arrived at by the administrative authority after following the principle established by law and rules of natural justice and the individual was given a fair treatment to meet the cases against him, the Court cannot substitute the judgement for that of the administrative authority (See Apparel Export Promotion Council vs. A.K.Chopra reported at (1999) 1 SCC 759).

35. After going through the order impugned this Court finds that the Hon'ble Lieutenant Governor passed the order dated September 12, 2021 after following the principles established by law and the rules of natural justice. The petitioners were given sufficient opportunity to substantiate their claim. The petitioners also failed to satisfy this Court that the order impugned suffers from perversity. Moreover cogent reasons have been assigned to support the ultimate conclusion. Therefore, this Court is of the considered view that the petitioners could not make out a case for interference with the order dated September 12, 2021 in exercise of the powers of judicial review.

36. For all the above reasons, this Court holds that the order impugned dated September 12, 2021 does not suffer from any infirmity warranting interference under Article 226 of the Constitution of India. Accordingly, the writ petitions being WPA

No. 264 of 2021 and WPA No. 69 of 2022 stand dismissed. There shall be however no order as to costs.

37. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all formalities. (HIRANMAY BHATTACHARYYA, J.) Later:

38. After this judgement was delivered, Mr. Jayapal, learned Advocate prays for stay of operation of the impugned order dated September 12, 2021 for a limited period.

39. Mr. Chakraborty, learned advocate appears for the Administration and Mr. Halder, learned advocate appears for the private respondent and opposed the prayer for stay.

40. The prayer for stay is considered and rejected. (HIRANMAY BHATTACHARYYA, J.)