M.Ganeshan v. The Lt Governor And Others

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE MD. SHABBAR RASHIDI WPA/240/2022 M.Ganeshan ... Petitioner

Versus

The Lieutenant Governor and others ... Respondents For the petitioner : Mr. K.M.B Jayapal For the respondents : Mr. V.D.Sivabalan Mr. Arun S. Kumar Heard on : 30.07.2025 Judgment on : 05.08.2025 MD. SHABBAR RASHIDI, J.

1.

The writ petition has been filed by the petitioner in assailment of an order dated April 26/27, 2022 passed by the Secretary (Revenue), Secretariat, Andaman and Nicobar Administration in first Revenue Appeal No.1 of 2020/1538. 2.

According to the case made out by the writ petitioner, his father M. Meyappan settled in Andaman and Nicobar Islands in search of livelihood in the year 1934. He has been working as casual Mazdoor in a private company under the name and style of West India Matches Company (P) Limited since 1940. In order to exhibit that the father of the petitioner actually lived in the

Island, as claimed, the petitioner has stated that his father, while working in the company, met with an accident on July 12, 1946 and was favoured with an award passed by the Commissioner of Workmen Compensation. Apart from that, the Islander Identity card was issued in favour of the father of the petitioner showing him an old pre-1943 inhabitant. 3.

The petitioner also submitted that his father, M. Meyappan, encroached a piece of Government land bearing Survey No. 1699/1 covering an area of 2018 Square meters situated at Quarry Hill within Phoenix Bay Revenue village under Port Blair Tehsil in the year 1951 and constructed house thereon. Subsequently, on October 10, 1960 the father of the writ petitioner made a representation before the Deputy Commissioner, Andaman District seeking allotment of the encroached land in his favour. The said representation also referred to the earlier representation made by the said M. Meyappan on May 5, 1956 and September 21, 1959. 4.

In response to such representation, the Deputy Commissioner by a communication dated October 29, 1960 informed the father of the writ petitioner that his application for allotment of house site would be considered on priority basis as and when allotment of house site would be taken up for consideration. However, name of the father was recorded in the

Encroached Register maintained in the office of Deputy Commissioner. The matter was further negotiated with the Deputy Commissioner through the President of Trade Union who was called upon to meet the Deputy Commissioner on December 3, 1960 but no order in this regard was passed by him.

5.

The writ petitioner also came up with a case that by a memorandum dated September 7, 1966, the Government undertook to regularize 10 acres of land encroached prior to 1961. His case having not been considered, the father of the writ petitioner again applied on November 23, 1966 to consider his case. His case was directed to be considered. The Deputy Commissioner by a memorandum dated September 8, 1968 directed the father of the petitioner to adduce evidence in support of his claim. On February 20, 1970, the Assistant Commissioner also requested the Deputy Commissioner to consider and settle the matter in respect of the representations made by the father of the writ petitioner. Petitioner also submitted that in the survey conducted by the Revenue department in 1961, the father of the writ petitioner was found in possession of the encroached lands and accordingly, his name was recorded in the Khasra Register of Phoenix Bay village against survey No. 1699/1 to the extent of 2018 sq. mtr.

The father of the petitioner was also sanctioned with tap connection in respect of the land in question. 6.

In such fashion, the father of the writ petitioner did several acts and correspondences with different authorities, which according to the writ petitioner, showed that the representation of the father of the petitioner was not considered, though, he remained in possession of the encroached lands. The writ petitioner as well as his father also applied for settlement of land in response to the decision of the administration for regularization of the encroachments made prior to December 31, 1978. In pursuance of such application, although, land measuring 200 Sq. mtr. was allotted and licence was issued in favour of the petitioner, but later on the licence was cancelled on the plea that similar amount of land was already settled in the name of the petitioner in 1982.

7.

Aggrieved by such decision, the petitioner approached the High Court by filing C.O. No. 132 (W) of 1993. However, such application was withdrawn with liberty to file an appeal before the Appellate authority i.e. Sub Divisional Officer. By an order passed in such appeal, the writ petitioner was relegated to the Deputy Commissioner and in turn to the Secretary Revenue. Thereafter, the writ petitioner again approached the High Court in WP No. 1352 of 2010. The writ petitioner was again relegated

to the Deputy Commissioner who turned down his claim. The petitioner again preferred an appeal before the Commissionercum-Secretary. The said appeal was dismissed on the pretext that a land was already allotted in favour of the wife of the writ petitioner.

8.

Ultimately, the writ petitioner again approached the High Court in WP No. 96 of 2014 wherein, the writ petitioner was relegated Commissioner-cum-Secretary. The writ petitioner placed his case before the said authority. However, the claim of the writ petitioner was rejected by the order under challenge. Hence this writ petition.

9.

On the other hand, it is the case of the respondents that in reference to the Khasra Register and provisional sketch map, the claim of the petitioner of his father to be a pre-1961 encroacher is not supported by documents. The claim of the writ petitioner as well as that of his father was duly considered by the Deputy Commissioner, upon providing them an opportunity to be heard, in compliance of the directions of the High Court in WP No. 1352 of 2010. On the basis of the report of the Assistant Commissioner (Settlement) and Tehsildar, Port Blair and on hearing the petitioner, the Deputy Commissioner rejected the claim.

10.

It is further case of the respondents that the writ petitioner preferred an appeal against the order of the Deputy Commissioner. It was also submitted on behalf of the respondents that the records revealed that the writ petitioner made encroachment of the subject land in the year 1977. A case in this regard was initiated against the petitioner under the provisions of Section 202 being 84 date December 28, 1977. Consequently, such encroachment was removed in October 1978. It was also contended that although, by an order passed by Chief Commissioner, regularization of encroachments made prior to 1961 was contemplated but the same was not backed by any scheme and could not take any shape. However, later on the decision was modified and superseded by Government of India and a scheme was formulated in 1987 for regularization of Govt.

Revenue land in revenue villages under unauthorized occupation on or before December 31, 1978 subject to the maximum limit of 200 sq. mtrs. Per family, in case the land is used for construction of dwelling units in urban areas. In case of rural areas the maximum limit for dwelling unit was 350 sq. mtrs. All applications received against such scheme were disposed in accordance with law.

11.

The respondents further submitted that the Government again came up with a scheme for regularization of pre-1961

excess area under which the land records of Port Blair Municipal area as it was prior to 1961 was considered. The Andaman and Nicobar administration referred several cases of regularization with relevant documents in 2003, in respect of pre-1942 settlers up to the year 1961. The Ministry of Home affairs, Government of India, approved the regularization on the basis of the survey undertaken in 1961, subject to the condition that the settlers must have maintained their continuous possession till date. A survey was to be carried out by Andaman and Nicobar administration to identify the pre-1942 settlers or their descendants who had maintained possession till 1961. 12.

In terms of the approval from Ministry of Home affairs, Government of India, the exercise was undertaken and some persons found eligible were granted licence.

The respondents submitted that the name of the writ petitioner did not appear as pre-1971 settler in any record. Survey No. 1699, which the writ petitioner claims, was a Government Revenue land as per the records of 1961 and the petitioner was also not a tenant having excess land, identified in the survey conducted in 1961. According to the respondents, report of Tehsildar submitted in 1977 showed that a revenue case was started against the writ petitioner being R.C. Case No. 99 of 1977 for illegal encroachment of about 100 square meters of revenue

land and such encroachment was removed through the said case.

13.

The respondents also contended that as per the survey conducted in 1978-79, the petitioner was found to be an encroacher in respect of 525 square meters at Phoenix Bay village prior to 1978. The wife of the writ petitioner was regularized with 200 square meters of land in survey No. 1699 under the scheme for regularization of pre-1978 settlers and was awarded with a licence in this regard. That was the maximum amount of land that could be settled under the pre1978 scheme upon vacating any excess land. 14.

It is specifically submitted by the respondents that the case of the petitioner does not fall under any scheme of regularization. The maximum limit of 200 square meters of land in survey no. 1699 of village Phoenix Bay village, which is claimed by the petitioner, was already regularized in favour of the wife of the petitioner under pre-1978 scheme. No further land is permissible to be regularized with the same family. 15.

The respondents also submitted that although, the writ petitioner submitted his reply to the written statement filed by the Assistant Commissioner (Settlement) claiming an encroachment by his father M. Meyappan prior to 1961 as a pre-1942 settler, however, the writ petitioner failed to establish

such facts based on documents.

On such score, the respondents seek dismissal of the writ petition. 16.

The writ petitioner claims settlement of landed properties appertaining to Survey No. 1699 renumbered as Survey No. 106 situated at Phoenix Bay village. The writ petitioner has staked his claim on the ground that his father M. Meyappan was a pre1942 settler and encroached the land in question prior to 1951. However, the father of the petitioner later, returned to the main land due to his medical conditions and ultimately died. According to the petitioner, his father made encroachment over a piece of Government land bearing Survey No. 1699/1 covering an area of 2018 Square meters situated at Quarry Hill within Phoenix Bay Revenue village. He applied and approached the authorities several times for settlement of such land in his name, however, such prayers did not yield any result in his favour. According to the writ petitioner, his father also constructed his dwelling house over such encroached land with due permission. 17.

In order to prove that father of writ petitioner was a pre1942 settler, the petitioner has relied upon certain documents viz.

an award passed in his favour under workman Compensation for an accident while he used to work for a company in Andaman and Nicobar Islands, his Identity card etc. such documents, may be taken as proof that the father of

petitioner settled in the Islands for the purpose of his avocation but cannot be considered a valid document to show that he actually encroached government land and constructed his dwelling house thereon to be eligible for allotment of land in terms of the Rules framed under Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966. Rule 105 thereof, obliged the Patwari to maintain a register of encroachment in specific form and to submit the same with a report to the Revenue Inspector.

18.

The matter came up for consideration before a Coordinate Bench of this Court several times and lastly in WP No. 96 of 2014. In such proceeding, this court, noted the submissions made on behalf of the petitioner to the effect that the encroachers whose encroachments were reported, in terms of such Rules were allotted encroached lands as a freehold absolutely by the government. On the basis of such submission, the High Court observed that a valuable right under the Regulations and the Rules framed thereunder, if proved, had accrued to the father of the writ petitioner which devolved upon the petitioner. Therefore, the right of the petitioner was left open, to be proved. In such view of the facts, the petitioner was relegated to Commissioner-cum-Secretary (Revenue) for the purpose of proof of the rights accrued to the petitioner. It was

directed the Commissioner-cum-Secretary (Revenue) to pass a fresh order with regard to the rights accrued to the petitioner on consideration of two specific documents indicated in the order of the High Court, namely, a letter written by M. Meyappan on October10, 1960 and the extract of the register of encroachment of government land under Rule 105 prepared in 1994 in which the probable date of encroachment by the father of writ petitioner was shown as December 28, 1957.

19.

In pursuance to the directions in WP No. 96 of 2014, the Secretary (Revenue) passed a detailed order on April 26, 2022. He considered the documents referred to by the High Court and also noted the written submissions filed on behalf of the petitioner. The documents submitted by the writ petitioner was forwarded for verification by the Assistant Commissioner and on such verification the Assistant Commissioner came up with a report that no such document was available either in the Settlement Record Room or the District Record Room. The Secretary (Revenue) also found that the alleged encroachment register standing in the name of the writ petitioner was recorded when the petitioner was aged about 5 years only. 20.

The Secretary (Revenue) further held that the letters, informing the petitioner or his father assuring allotment of house site or the letter calling upon the President of Trade

Union to discuss the encroachment by M. Meyappan was of no consequence. No document was produced by the petitioner that any house site was actually allotted in his favour. On consideration of the relevant documents, the Secretary (Revenue) also concluded that the name of the writ petitioner or his father were not reflected from the records in the category of pre-1942 settlers in the survey records conducted and prepared in 1961. On such score, the Secretary (Revenue) rejected and disposed of application of the petitioner for settlement of land under pre-1942 settler scheme as he failed to produce documents to establish that the writ petitioner or his father was a pre-1942 settler.

21.

Moreover, the writ petitioner has also set out a case that the revenue records maintained by the authorities were destroyed by fire in the offices. However, no evidence was produced by the petitioner with regard to destruction of records by fire. The order passed by the Secretary (Revenue) has not spoken of unavailability of any record or destruction of records by fire. In fact, the reasoned order seems to be based on available records.

22.

According to the reasoned order passed by Secretary (Revenue), the writ petitioner failed to establish that he or his father was entitled to settlement of land encroached by them

under pre-1942 settler scheme. As noted above, the father of writ petitioner may have settled in Andaman and Nicobar Islands prior to 1942 but the petitioner has not been to establish, with the help of cogent evidence, that his father encroached upon government land prior to 1942 and continued in possession thereof till 1961, which was a condition precedent to receive the benefits of allotment or settlement of such land in the pre-1961 scheme. So far as pre-1978 scheme is concerned, a land measuring 200 square meters was already settled with the wife of the writ petitioner which was the maximum limit of land to be allotted to a family under such scheme. 23.

The order passed by the Secretary (Revenue) dated April 26, 2022 is well reasoned and based on documents and government records. The writ petitioner has not produced any document to controvert the documents relied upon by Secretary (Revenue), either before such authority or before this court, in course of hearing of the instant proceedings. 24.

In the light of discussions made hereinbefore, I find no merit in the writ petition. Consequently, the writ petition being WP 240 of 2022 is hereby dismissed without any order as to costs and thus, disposed of.

25.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities.

(Md. Shabbar Rashidi, J.)