Arun Kumar Agarwal v. The Andaman And Nicobar Admin, Dep Of Land And ORS

01-02. 07.09.2022 Ct. No.6 Tanmoy

IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT PORT BLAIR CIVIL APPELLATE JURISDICTION APPELLATE SIDE M.A.T. 6 of 2022 Arun Kumar Agarwal -VersusThe Andaman and Nicobar Administration, Department of Land & Ors.

With IA No: C.A.N. 1 of 2022 With M.A.T. 7 of 2022 Arun Kumar Agarwal -VersusThe Andaman and Nicobar Administration, Department of Land & Ors.

With IA No: C.A.N. 1 of 2022 Mr. Surajit Samanta, Adv., Mr. Biswajit Samanta, Adv., Mr. Tapan Kumar Das, Adv., Ms. Sohini Samanta, Adv.

...for the appellant.

Mr. Shatadru Chakraborty, Adv., Mr. Ramendu Agarwal, Adv.

...for the respondents.

Affidavit of service filed in Court today be kept with the records.

By consent of the parties, both the appeals and the connected applications are taken up together for hearing.

These two appeals are directed against a common judgment and order dated August 26, 2022, whereby two writ applications filed by the appellant being W.P.A. No. 258 of 2022 and W.P.A. No. 322 of 2022 were dismissed. The appellant/writ petitioner had obtained an order for diversion of a particular plot of land from agricultural to commercial use for being used for eco-friendly tourism purpose. It appears that thereafter the appellant set up a furniture shop business on the land in question. Objections were raised to the use to which the land was being put by the appellant. The appellant made an application to the Sub-Divisional Officer, South Andaman, Port Blair, on November 25, 2019 for change of user of the concerned land from commercial eco-friendly tourism to selling of furniture and other household items.

Subsequently, an order dated December 14, 2021 was passed by the Competent Officer in the Administration asking the appellant to stop his furniture business from the land in question. That order was assailed by the appellant by filing W.P.A. No.1 of 2022 before the Circuit Bench of this Court at Port Blair. The writ petition was disposed of by an order dated January 17, 2022. The operative portion of the said order reads as follows:- "I am of the opinion that since the petitioner has been running the furniture shop in question on the relevant land for a considerable period within the knowledge of the respondent authorities, and his application for diversion is under active consideration by the respondents, his business activities should not be suddenly stopped by the respondents without deciding his application finally.

In that view of the matter, this writ petition is disposed of with a direction upon the respondents to consider the prayer of the petitioner for diversion so as to permit him to run his present business within a period of two months from date. The operation of the impugned order dated December 14, 2021 shall remain stayed for the said period of two months. If the authorities upon consideration of all relevant facts, allow the petitioner's prayer for diversion, they will not give any effect to the order dated December 14, 2021, passed by the Sub-Divisional Officer, South Andaman, and in the event the prayer of the petitioner does not find favour with the respondent authorities, they will be at liberty to implement the order dated December 14, 2021, in accordance with law."

It appears that pursuant to such order, an order dated July 12, 2022 has been passed by the SubDivisional Officer, South Andaman, the operative portion whereof reads as follows:- "In view of the above facts and rules contained in ANI LR & LRR 1966 and in pursuant to the direction issued by the Hon'ble High Court, the said illegal diversion by the petitioner is not permitted in accordance with law and hence therefore, the Stay order dated 14th December, 2021 will be implemented and remain in force till the land is diverted into the purpose for which it is presently being used. The Tehsildar, Ferrargunj is hereby directed to implement the stay order dtd. 14th December, 2021 and should ensure that there is no violation of the above stay order."

Pursuant to the aforesaid order, the Tehsildar, Ferrargunj, issued a notice dated July 20, 2022, calling upon the appellant "to stop unauthorized activities from the said premises, failing which suitable action as per law, shall be taken and also report furnished for initiating action under Section 162 (1) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and rules made thereunder."

The Sub-Divisional Officer's order dated July 12, 2022, and the Tehsildar's notice dated July 20, 2022, were challenged by the appellant by filing one of the present writ petitions being W.P.A. No. 258 of 2022. Subsequently, an order dated August 3, 2022, was passed by the Sub-Divisional Officer, South Andaman, the relevant portion whereof reads as follows:- "Whereas keeping in view of the above violations committed, the recorded tenant is hereby directed to close the said commercial establishment within two days from the receipt of this order failing which the Tehsildar, Ferrargunj is hereby directed to seal the said commercial establishment with the help of Police personnel and compliance report of the same shall be submitted to the undersigned immediately."

This order was challenged by the appellant by filing the other writ petition being W.P.A. No. 322 of 2022. Both the writ petitions were taken up for hearing and disposal together. By the impugned judgment and order, the learned Single Judge has dismissed both the writ petitions, primarily on the ground of availability of efficacious alternative remedy under the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereafter to be referred to as the "1966 Regulations").

Appearing for the appellant, Mr. Samanta, learned Senior Counsel argued that normally, if an efficacious alternative remedy is available to an aggrieved party, the writ Court would not entertain his grievance. But there are certain cases where, in spite of an alternative remedy

being available, a party's writ petition will be entertained by the writ Court and this is such a case. He submitted that a learned Judge of this Court passed an order on January 17, 2022, directing the Administration to consider and dispose of the writ petitioner's application for conversion/diversion of the concerned land for the purpose for which it is now being used. Until such decision was taken, which was to be taken within two months, the order dated December 14, 2021, issued by the Competent Officer in the Administration asking the writ petitioner to stop his business would not be given effect to. Mr. Samanta says that the order of that learned Judge has not been complied with.

The order dated July 12, 2022, which is one of the orders under challenge in the present proceedings, cannot be said to be a final rejection of the appellant's application for conversion/diversion of use of the land in question. Without complying with that order of Court, the Administration has stopped the appellant's business from August 3, 2022. This is a case where the writ Court should interfere and grant relief.

Mr. Chakraborty, learned Advocate appearing for the Administration, defended the order dated July 12, 2022, and said that on a meaningful reading of that order it is clear that the appellant's application for conversion/ diversion of use of the land in question has been rejected. Hence, there was no impediment in the way of the

Administration asking the appellant to stop his furniture business from the land in question, which was allotted to him for carrying on eco-friendly tourism business. The other orders are consequential orders and hence the same should also be allowed to stand.

Learned Counsel further says that in view of there being an efficacious alternative remedy under the 1966 Regulations, the appellant should be relegated to such remedy and no exceptional circumstances exist for the writ Court to entertain his writ petition in spite of there being an alternative remedy. Mr. Chakraborty, further argues that the conduct of the appellant has been dishonest. He has used the land in question for a purpose which is different from what he had been permitted to do by the Administration, without obtaining prior approval of the Administration.

The submissions made by Mr. Chakraborty are strongly disputed by Mr. Samanta, appearing on behalf of the appellant.

We have carefully considered the rival contentions of the parties. We are not inclined to enter into the merits of the case as to whether or not the appellant is entitled to an order for change of user of land in his favour. However, we are of the considered view that the order dated July 12, 2022, does not amount to final rejection of the appellant's application for conversion/ diversion of user of the land in question. The language of

the said order is not at all clear. It is equivocal and ambiguous. According to Mr. Samanta, the order does not also consider relevant documents. The Sub-divisional Officer in the impugned order has stated that "the stay order dated 14th December, 2021 will be implemented and remain in force till the land is diverted into the purpose for which it is presently being used."

As we understand, this means that the appellant's furniture business shall have to be stopped until the concerned land is converted so as to be made suitable for furniture sale business. However, that begs the question as to whether such conversion is permissible or not? Indeed, that order was passed on the appellant's representation dated November 25, 2019. In our opinion, if the Sub-Divisional Officer was of the view that the appellant's representation deserves to be rejected, nothing stopped him from saying so clearly. We are of the view that the Sub-Divisional Officer should revisit the issue. The order dated July 12, 2022, is set aside. Since we are asking the Sub-Divisional Officer to consider the issue afresh, at the time of such consideration he will consider that representation along with the fresh representation that we are told the appellant has made on July 29, 2022. Such representations shall be decided by the Sub-Divisional Officer by a reasoned order, in accordance with law, within a period of eight (8) weeks from the date of communication of this order after giving

an opportunity of hearing to the appellant or his authorized representative. Needless to say, the SubDivisional Officer shall take into account all documents that will be produced before him by the appellant or his authorized representative. We have not gone into the merits of the case. The Sub-Divisional Officer shall decide the appellant's representations without being influenced by any observation in this order.

The appeals are accordingly allowed. The order under appeal is set aside. The orders assailed in the two writ petitions are also set aside. The appellant will be at liberty to resume his business but will abide by the order that the Sub-Divisional Officer will pass on his representations.

Since we have not called for affidavits, the allegations made in the stay petitions shall be deemed not to have been admitted by the respondents.

The appeal being M.A.T. 6 of 2022 with the connected application being IA No: C.A.N. 1 of 2022 and the appeal being M.A.T. 7 of 2022 with the connected application being IA No: C.A.N. 1 of 2022 are accordingly disposed of. However, there will be no order as to costs. Let urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with all necessary formalities.

Registry is directed to transmit the case records to the Registrar, High Court at Calcutta Circuit Bench at Port Blair forthwith.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)