Promila Mistry v. The Andaman And Nicobar Administration And ORS

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** WPA/228/2024 Promila Mistry Vs The Andaman and Nicobar Administration and others Mr. KMB Jayapal ... for the petitioner Ms. Babita Das ... for the respondents January 17, 2025 [AKB] Item Nos.7 A typed copy of the Record of Rights or Holding Register has been provided by the learned counsel for the petitioner and the copy of the same has also been provided to learned counsel representing the respondent. No objection has been raised. Let the typed copy be kept with the record. The register has not been placed.

The writ petitioner herein is a son of one Fakir Chand Chowkider since deceased. The contention of the writ petitioner is that the name of his father is recorded in the record of rights under the heading 'Name of tenant'. The present writ petition has been filed to have the recording in the record of rights or holding register rectified wherein it has been stated as "the holding has been resumed vide order 14.04.1980 of the D.C.fc.c. recorded in the sheet 05 corresponding revenue case No. 2469 corresponding to Q.RC. no. 54/76 (TM) (Tehsildar Mayabunder), (ICM) (Incharge Mayanunder). Affidavit-in-opposition has been filed on behalf of the respondent no. 3 i.e. the Tehsildar, Mayabunder Tehsil. Through the affidavit-in-opposition the respondent no. 3 i.e.

Tehsildar, Mayabunder Tehsil, North & Middle Andaman District has stated that the land bearing survey nos. 26, 27 and 70 measuring an area of 0.69 hectare, 2.11 hectare and 1.

pay land revenue for twenty years and subsequently during the year 1980 the said land has been resumed by the competent authority. It has also been stated that after the demise of the recorded tenant and his wife his son and daughter had forcefully entered into the land during the year 2003 and has been residing in the land and have raised plantation. It has also been stated that under Section 152 of the Andaman & Nicobar Island Land Revenue and Land Reforms Regulations, 1966 the land of the father of the writ petitioner were taken by the government and at present the land bearing survey no. 26 measuring 0.69 hectare (P-II) has been allotted to Shri. Ananda and nine others vide D.C's (A) order in the RC no. 30/96 at 15/4/1999. The land recorded as survey no. 27 measuring an area 2.11 hectares (H) has been surrendered for construction of Sine motion band vide RC no. 148/82 and the land bearing survey no. 70 measuring an area 1.25 hectares (P-II) has been surrendered vide RC no. 121/SL/83 dated 10.02.1989.

Mr. Jayapal, learned counsel representing the writ petitioner submits that in this instant case there has not been any abandonment of the holding. He further submits as regards abandonment of a holding a Sub Divisional Officer is required to make an inquiry prior to taking decision in respect of the land and in this instant case there has not been any inquiry conducted. He further submits that the record of rights bear the signature of the Tehsildar who is not the competent authority to record the same instead it is the Sub Divisional Officer who is to sign on the record of rights. He further submits that a Sub Divisional Officer is appointed by the Lieutenant Governor from the cadre of Assistant Commissioner who is above the rank of Tehsildar.

The learned counsel further submits that as prior to issuance of notice there has been a decision taken on behalf of the authorities stating that the land in question has been resumed, as such, no representation has been made before the authority concerned. The learned counsel further submits that the word 'Resume' does not appear within the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966. In support of his contention that post decision hearing does not fetch any fruitful result, the learned counsel relied upon a judgement of the Hon'ble Apex Court reported in (2006) 12 SCC 33 and refers to the paragraph no. 10. The said paragraph no.

"10. The said principle has been followed by this Court in V.C.,Banars Hindu University v. Shrikant, stating:

"48. The Vice-Chancellor appears to have made up his mind to impose the punishment of dismissal on the respondent herein. A post decisional hearing given by the High Court was illusory in this case.

49. In K.I. Shephard v. Union of India this court held;

'It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield and fruitful purpose.' "

The learned counsel further submits that there has not been any delay or laches on the part of the petitioner and in this context relies upon the judgement passed by Hon'ble Apex Court and reported in (2020) 2 SCC 569 and refers to the paragraphs 12.8 and 12.9 which are as follows:- "12.8. The contention of the State that the appellant or her predecessors had "orally"

consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the appellant of her property by the State.

12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution."

The learned counsel further submits that the recording in the record of rights is null and void as such there is no laches on the part of the petitioner.

The learned counsel banking upon the aforesaid provisions submits that the prayer made through the present writ application i.e. annulling the impugned recording of resumption in respect of the lands maintained

in statutory record (land record) by the respondent no. 3 be annulled and or cancelled and be set aside.

The learned counsel representing the respondent authorities submits that the recording in the record of rights has been of the year 1980 and since then the respondent has not taken any initiative as regards to the rectification of recording in the record of rights. The learned counsel further submits that the endorsement in the record of rights in respect of the holdings has been vide order dated 14.04.1980 and the said order has been passed by the Deputy Commissioner not by the Tehsildar and the Deputy Commissioner is a competent person in this aspect. On going through the writ petition, the affidavit-inopposition filed by the respondent authorities and the submission of the learned counsel it transpires that in respect of the suit properties i.e. survey nos.

26, 27 and 70 which have been classified P-II, H and P-II respectively situated at Kishorinagar, formerly Mayabunder Tehsil presently Diglipur Tehsil within the District of North and Middle Andaman. The remark 'deserted' which is under column 13 and the recording "the holding has been resumed" is dated 14.04.1980 and has been passed by the Deputy Commissioner who is the competent authority. From the affidavit-in-opposition filed by the respondent no.3 it transpires that on the one hand the authority has stated that the land bearing survey No. 26 measuring 0.69 hectare has been allotted to Shri Ananda and nine others vide order dated 15.04.1999, survey no. 27 measuring an area of 2.11 hectares has been surrendered for construction of Sine motion band vide RC no. 148/82 and in respect of survey no. 70 measuring an area 1.

25 hectares (PII) it has been stated that the property has been surrendered vide RC no. 121/SL/83 dated 10.02.1989 and Fakir Chand Chowkidar did not occupy the said land and had not paid land revenue for twenty two years and subsequently during the year 1980 the said land had been resumed by the competent authority, the Tehsildar Mayabunder, on the contrary it has also been stated that after the demise of the recorded tenant and his wife, son and daughter of the said Fakir Chand Chowkidar had forcefully entered into the land during the year 2003 and have been residing there and have planted fruit bearing trees. These statements indicate that the petitioner is in possession of the suit lands and that too since the year 2003.

applicable in case of equitable relief but the principles of the Limitation Act is applicable and also considering the peculiar facts and circumstances which have revealed from the affidavit-in-opposition this Court directs the respondent authorities to treat the writ petition as a representation and hear the matter after serving notice to the petitioner and to pass a reasoned order.

The entire procedure shall be given effect to at the earliest but should not exceed beyond 6 (six) months from the date of communication of this order.

The writ petition is disposed of.

(Supratim Bhattacharya, J.)