Ashalata Ganguli v. The Andaman And Nicobar Administration And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/229/2024 Ashalata Ganguli Vs.

The Andaman and Nicobar Administration and Others Mr. K. M. B. Jayapal ... for the petitioner Ms. Babita Das ... for the respondents March 20, 2025 [AKB] Item No.13 1.

The instant writ petition has been filed, inter alia, challenging the recording made in remarks column of the Record of Rights in Form F maintained as per Rule 132 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Rules, 1968 (hereinafter referred to as the said Rules).

2.

It is the petitioner's case that the respondents had allotted lands bearing Survey No. 26 having an area of 0.69 Hectares, Survey No. 27 having an area of 2.11 Hectares and Survey No. 70 having an area 1.25 Hectares which are classified as P-II, H and P-II situated at village Kishori Nagar under Mayabunder Tehsil, North and Middle Andaman, in favour of her father during his lifetime. According to the petitioner, the petitioner's father Late Fakir Chand Chowkidar during his lifetime consequent upon the aforesaid allotment not only occupied the land in question but also had started cultivation of paddy crops and planted trees. In support

of the aforesaid contention, the petitioner has placed before this Court the Record of Rights in Form 'F' maintained in terms of Rule 132 of the said Rules. According to the petitioner, her father had been enjoying the said land by constructing a house on a part and portion thereof, and had also obtained electricity connection. The petitioner would claim that her father had died on 28th April, 2003 leaving and surviving herself along with her two brothers who are also in joint occupation of the said plots along with her. It is however, the petitioner's case that in the Record of Rights recordings have been made in the remark's column as 'Deserted' and that the holding has been resumed on 14th April, 1980. The petitioner would submit that such recordings are incorrect. Such fact came to light when the petitioner had obtained the relevant Record of Rights in March 2024.

3.

Mr. K. M. B. Jayapal, learned Advocate appearing in support of the writ petition by drawing attention of this Court to the provisions of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred to be said Regulation) would submit that the provisions of the said Regulations do not permit resumption of land. According to him, a resumption can be made only in the manner provided by law. Since according to him, there is no scope to resume the land, the aforesaid recording is an extra judicial

recording and should be struck off. He would also submit that at no point of time any notice was served for effecting correction of record of rights.

4.

Ms. Babita Das, learned Advocate representing the respondents on the other hand by drawing attention of this Court to the statements made in the Affidavit-inOpposition would submit that although, the land-inquestion was originally allotted to one Fakir Chand Chowkidar in the year 1958, however, since the said Fakir Chand Chowkidar did not occupy the said land and the said Fakir Chand Chowkidar having not paid land revenue for 22 years, the said land had been resumed in the year 1980 by the competent authority. According to her, the said Fakir Chand Chowkidar had subsequently forcefully entered into the land in the year 2003 and has been residing over the land and raised plantation such as fruit bearing trees, bananas, areca nuts etc. 5.

By referring to the documents appearing at page nos. 9 and 10 of the affidavit-in-opposition being documents in Form AN prepared as per Rule 176 (1) of the said Rules captioned as 'un-occupied land available for disposal', she would submit that the survey plot No. 26 has already been allotted to Shri Ananda and 09 others vide order dated 15th April, 1999, whereas Survey plot No. 27 has been surrendered for construction of Sine Motion Band vide RC No. 148/1982. In so far as Survey No. 70 is concerned, she would also by referring to the

aforesaid Form submit that the said land has also been surrendered vide RC No. 121 dated 10th February, 1989. 6.

She would still further submit that the present application has been filed belatedly as and by way of an afterthought. Having regard thereto, it is submitted that no case for interference has been made out. The writ petition should be dismissed with costs.

7.

Heard the learned advocates appearing for the respective parties and have considered the materials on record. Admittedly in this case, it is found that the land was allotted by the respondents in favour of one Fakir Chand Chowkidar who happens to be the father of the petitioner, who had since died on 28th April, 2003. Although, the respondents do not deny the allotment of land in favour of the said Fakir Chand Chowkidar it is however, the respondents' case that the said Fakir Chand Chowkidar did not occupy the land and has also not paid land revenue since the date of initial allotment i.e. 1958. 8.

The documents placed on record would however, reveal that the Record of Rights in respect of the allotment made in favour of Fakir Chand Chowkidar is reflected in the Form 'F' of Record of Rights which is a statutory document prepared as per Chapter VIII of the said Regulation. The Record of Rights in Form 'F' would demonstrate that the land had been recorded in favour of the tenant namely Fakir Chand Chowkidar.

9.

Having regard thereto, and the obligation of the Patwari to maintain up to date Record of Rights in terms of the Rule 132 and 134 of the said Rules, there can be no dispute that Fakir Chand Chowkidar was not only allotted the land but also remained in possession thereof and for reasons whereof his name was recorded as a tenant in column 3 of the aforesaid Record of Rights. Though, Ms. Das has claimed that there has been subsequent development in the form of reallotment no Record of Rights to substantiate the same has been produced.

10.

I find that the dispute in the instant case is however a little different. The petitioner is aggrieved by the recording in the remark's column of the Record of Rights which records the word 'Deserted' and the recording that the holding has been resumed on 14th April, 1980. In this context, it would be relevant to note that the Record of Rights which is maintained by the Patwari is not only required to be prepared in Form 'F' but the same is required to be maintained as per Rules 132 and 134 of the said Rules. Rule 134 of the said Rules provides the manner in which the Record of Right shall be updated. To more fully appreciate the same Rule 134 of the said Rules is extracted hereinbelow.

"134. (1) The Patwari shall prepare a rough note book in form 'F' in which he shall note particular required under the various headings.

These particulars should be gathered from the records deemed to be record of-right under Rule 133, and

from such information as he can collect by local inquiry.

(2) It there is a dispute about entry proposed to be made in the rouge note book, the Patwari shall leave such entry blank and shall record the particulars of the dispute in the register of disputed cases, which shall be maintained in Form 'G'.

(3) All persons know to be likely to have interest in the entries which are to be made in the record-ofrights shall be individually noticed to appear on a date to be specified therein to represent their interest.

(4) On the dates so specified, every entry in the rough note book shall be examined by a Revenue Inspector or such other officer as may be authorized in this behalf by the Deputy Commissioner as read out to all persons present. If any person interested admits the entries to be correct the admission shall be noted by that officer in the remarks column, if there is any dispute, an entry shall be made in the register of disputed cases.

(5) The disputed cases shall be decided by the Tehsildar or such other officer as may be authorized in this behalf by the Deputy Commissioner.

(6) Entries shall then be made in the relevant columns of the record-of-rights by the Patwari and checked by the Revenue Inspector, Naib Tehsildar, Tehsildar, sub-Divisional Officer and Land Records Officer.

(7) When the record of any village is complete, the sub-divisional officer or such other officer, as may be authorized by the Deputy Commissioner, shall issue a proclamation calling upon all person interested to appear on a specified date at a place in or near the village concerned and notifying that any such persons may inspect the completed record-of-right on application to the Patwari or any other official incharge and may prefer objection to any entry therein within a period of 15 days from the date of proclamation.

(8) On the date and at the place appointed, the SubDivisional Officer or such other officer, as may be authorized in this behalf by the Deputy Commissioner, shall cause such portions of the record as the person in attendance may desire, to be read over in their presence and after such further correction as may then be necessary, shall sign the record and add at the end a certificate that it has been duly approved and promulgated."

11.

From the above, it would be apparent and clear that in the event if there is any dispute as regards the recording, the persons likely to be interested in such recording is to notified as per the procedure which is

required to be followed before effecting any correction in such Record of Rights.

12.

In the instant case the respondents, however, claim that the property-in-question has been resumed by reasons of Fakir Chand Chowkidar not occupying the same at all. It is also not the case of the respondents that any notice had been served on Fakir Chand Chowkidar prior to correction of the Record of Rights 13.

From the sequence of events noted hereinabove and having regard to the recording made by the respondents in the Record of Rights, I am unable to accede to the contention of the respondents that Fakir Chand Chowkidar did not occupy the land-in-question. As to whether Fakir Chand Chowkidar had made payment of land revenue is a question to be decided by the respondents.

14.

Although, Ms. Babita Das, learned Advocate representing the respondents had tried to impress upon this Court by placing reliance on Regulation 152 of the said Regulation that Fakir Chand Chowkidar having abandoned the holding the same had been resumed, no records have been placed before this Court to demonstrate any enquiry had been conducted by the respondents to declare that Fakir Chand Chowkidar had abandoned the holding. On the contrary from the materials on record it would transpire that the petitioner

is in occupation of the said property along with her two brothers.

15.

In this context I may note that although, the respondents in their affidavit have claimed that Fakir Chand Chowkidar had forcefully entered into the property in the year 2003, no document has been placed before this Court to demonstrate the steps taken by the respondents to proceed against Fakir Chand Chowkidar or his legal heirs since 2003. More than 21 years have passed since then.

16.

At this stage in my view the respondents should not be permitted, having themselves recorded Fakir Chand Chowkidar as a tenant in the Record of Rights, to displace the petitioner from the said property without following due process of law.

17.

Another aspect of the matter needs to be considered, although Ms. Babita Das has placed reliance on form 'AN' to demonstrate that the land-in-question had been recorded in the 'un-occupied land available for disposal' and the same had been surrendered, no documents have been placed before this Court to demonstrate that the aforesaid plots had been surrendered by the recorded tenant or the legal heirs of the recorded tenant. The Record of Right also do not support the respondents' case.

18.

However, at the same time since, the petitioner has approached this Court belatedly, though there appears to

be explanation for the delay, I am of the view that the petitioner cannot be entitled at this stage to seek deletion of an entry made in the year 1981 by invoking the extraordinary writ jurisdiction of this Court. 19.

In view thereof, I permit the petitioner to approach the authorities by making an appropriate application. In the event an appropriate application is made by the petitioner seeking correction of Record of Rights within a period of four weeks from date, the respondents shall, having due regard to the observations made herein, hear out and dispose of the petitioner's application on merits as expeditiously as possible preferably within a period of twelve weeks from the date of filing of such application. 20.

It is made clear that during pendency of such decision the possession of the petitioner over in respect of the subject land/plots shall not be disturbed. 21.

With the above observations and directions, the writ petition WPA/229/2024 is disposed of.

22.

There shall be no order as to costs.

23.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(Raja Basu Chowdhury, J.)