Shri Salam @ K.Abdul Salam v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/489/2023 Shri Salam @ K Abdul Salam Vs.

The Andaman and Nicobar Administration and others Ms G Mini .... for the petitioner Mr. V D Sivabalan ... for the respondents April 05, 2024 [SR] Item No. 17 Petitioner is aggrieved by an order dated July 24, 2019 passed by the Tehsildar, Port Blair in respect of a mutation proceeding. Learned advocate appearing for the petitioner submits that, the petitioner possesses, the title of immovable property concerned by virtue of a Will. Petitioner applied for mutation. Since the application for mutation was not being considered, the petitioner approached this Court by way of WP No.368 of 2015 which was disposed of by an order dated November 23, 2015 requiring the Tehsildar to consider the application for mutation and pass a reasoned order thereon.

Pursuant thereto, the Tehsildar rejected the claim for mutation by the impugned order dated July 24, 2019. Learned advocate appearing for the respondents submits that, the writ petition is not maintainable in view of the provision of statutory appeal. He also contends that, there is discrepancy between the computer records in respect of the land in question and the physical records and therefore, the claim of the writ petitioner cannot be sustained.

Apparently, the writ petitioner filed an application dated September 27, 2011 requesting mutation of the land bearing Sl. No.582/1 and 582/4 comprising an area 57 sq.mtrs and 47 sqmtrs

respectively situated at Buniyadabad for mutation by virtue of a Will registered with the Sub-Registrar, Port Blair on October 30, 1978. Petitioner also enclosed the death certificate of the testator namely Late Moosa Hajee who expired on February 11, 1985. On the basis of such an application for mutation, a revenue case bearing No.TPB/RC No.2191/2011 was initiated. Thereafter, the application for mutation not being decided, the writ petitioner filed a writ petition being WP No.368 of 2015 which was disposed of by an order dated November 23, 2015 directing the Tehsildar, Port Blair to decide the application for mutation.

By the impugned order dated July 24, 2019, the Tehsildar, rejected the claim for mutation on the ground that, although the respective plots were found entered in the Khasra register, such property was not recorded as allotted to the testator. The Tehsildar also found the issues relating to the absence of any land records in the name of the deceased testator in respect of the land in question was an impediment in granting the prayer for mutation. Writ petitioner relies on Form-F which is the computer generated record of holding register as also the Khasra Register to establish that the land in question was recorded in the name of the deceased testator.

Administration did not question these two documents, despite affidavits being filed. Administration also did not point out any discrepancy in these documents. These documents speaks of the deceased testator as the recorded allottee in respect of the two plots involved.

In the teeth of such unimpeachable documents brought on record in the writ petition, it cannot be said that, the deceased testator was not the allottee in respect of the two plots in question.

Devolution of the title through the registered will is not questioned by the Administration either by the impugned order or in the affidavit.

Therefore, the land in question allotted in fvaour of the deceased testator devolved in favour of the writ petitioner by virtue of the registered Will. The application for mutation is required to be allowed forthwith.

The issue of maintainability is being considered last since the facts are starling. As noted above, despite unimpeachable records of the government establishing the right, title and interest of the petitioner, the Tehsildar passed the impugned order. Existence of statutory alternative remedy is not a complete bar to exercise the writ jurisdiction. Notwithstanding the existence of statutory alternative remedy, a writ petition is maintainable where the fundamental right of the citizen is breached, or authorities acts in colourable exercise of power or without jurisdiction or the impugned order is perverse.

In the facts of the present case, the Tehsildar acted in colorable exercise of power in rejecting the application for mutation in the teeth of the documents of the title as noted above. The impugned order of the Tehsildar is arbitrary and passed in colourable exercise of power.

In such circumstances, the impugned order is set aside. The Tehsildar will allow the application for mutation, which was reregistered as TPB/RC/2029/2016 within four weeks from date. Learned advocate for the respondent is also requested to communicate this order to the Tehsildar, Port Blair for compliance. WPA/489/2023 is disposed of without any order as to costs. ( Debangsu Basak, J. )