Kanai Lall Sarkar And Another v. The Union Territory Of Andaman And Nicobar Islands And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

WPA /316/2021 Shri. Kanai Lall Sarkar & another ... Petitioner Vs.

The Territory of Andaman and Nicobar Islands and Another ... Respondents Mr. KMB Jayapal ...for the Petitioner Mr. V.D. Sivabalan Mr. Arun S. Kumar ...for the Respondent Nos. 1 to 3 December 16, 2022 [AKB] Item No.13 By this writ application stay order dated 08.03.2021 passed by Tehsildar, Diglipur has been challenged and with prayer for quashing proceeding being RC No.113/TD/2021/152.

Mr Jayapal, learned advocate appearing on behalf of the writ petitioners has submitted that Tehsildar, Diglipur took up the issue over a land dispute between parties without having any jurisdiction to pass stay order till sub division of land.

Mr. Jayapal has referred to Regulation 69 of Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966. Mr. Jayapal has further submitted that sub division of land is a matter within the domain of Deputy Commissioner under Regulation 69. Mr. Jayapal has further submitted that Tehsildar, Diglipur passed stay order without having any jurisdiction to settle

land dispute which is also within the domain of Civil Court. Before parting Mr. Jayapal has submitted that writ petitioner were deprived of right of opportunity of being heard before passing a stay order by the Tehsildar, Diglipur.

Mr. Arun S. Kumar, learned advocate appearing on behalf of the respondent authorities has contended that the instant writ petition is not maintainable as the order is appealable. In support of his contention he has referred to Regulation 28 of the said Regulations of 1966 which runs as follows:

"28. (1) Save as otherwise provided in this Regulation, an appeal shall lie from every original order passed under this Regulation or the rules made thereunder:- (a) if such order is passed by any revenue officer sub-ordinate to Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Deputy Commissioner, to the Sub-Divisional Officer;

(b) if such order is passed by the Sub-Divisional Officer, whether or not invested with the powers of the Deputy Commissioner to the Deputy Commissioner;

(c) if such order is passed by any revenue officer subordinate to the Settlement Officer, to the Settlement Office;

(d) if such order is passed by a Deputy Commissioner, whether exercising the powers of Deputy Commissioner or Settlement Officer during the currency of the term of any settlement, to the Chief Commissioner;

(e) if such order is passed by Settlement Officer, whether exercising the powers of Settlement Officer or the powers of a Deputy Commissioner in connection with any settlement operation, to the Settlement Commissioner.

(2) A second appeal shall lie against any order passed in first appeal- (i) by the Sub-Divisional Officer or the Deputy Commissioner or the Settlement commissioner, to the Chief Commissioner.

(ii) by the Settlement Officer, to the Settlement Commissioner.

(3) An order passed in review varying or reversing any order shall be appealable in like manner as the original order."

Mr. Jayapal, in reply, has referred to Regulation 29 and submitted that stay order passed by Tehsildar, Diglipur is not appealable and no option was left to the writ petitioner but to approach the writ jurisdiction of this Court.

From the stay order annexed with the writ petition, I find that Tehsildar, Diglipur really took up the issue of land dispute over the joint paternal landed property and passed stay order without giving any opportunity of being heard to the writ petitioners.

From the said order passed by the Tehsildar, Diglipur it is found that the Tehsildar stayed the alleged construction till sub division. From Regulation 69 it comes to my view that the Deputy Commissioner has the authority to take all the decision regarding sub division and the said stay order passed by the Tehsildar, Diglipur on 08.03.2021 in RC No. 113/TD/2021/152 is not appealable within the purview of Regulation 29.

That apart, from copy of the record of holding register annexed with the writ petition, I find that petitioner No. 1 is one of the joint tenant in respect of the property in dispute.

Considering all facts and circumstances discussed above I find that the stay order assailed in the writ petition passed by Tehsildar, Diglipur, even without hearing the writ petitioner, is not at all tenable in law. Thus the stay order dated 08.03.2021 passed in RC No. 113/TD/2021/152 stands quashed.

Accordingly, the writ petition being WPA/316/2021 stands disposed.

(Bibhas Ranjan De, J.)