M/S Waterwoods Lodge And Resorts Pvt. Ltd v. The Sub Divisional Officer And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/341/2024 M/s Waterwoods Lodge and Resorts Pvt. Ltd.

Vs.

The Sub Divisional Officer and Another Ms . Anjili Nag, Sr.Adv.

Ms. K. Keerthi .... for the petitioner Ms. Babita Das ... for the respondents January 29, 2025 [SR] Item no. 76 1.

Matter is heard in presence of the learned advocates representing the petitioner and the respondents after exchange of affidavits.

2.

The grievance pointed by Ms. Anjili Nag, learned senior advocate representing the petitioner, is in spite of making an application for diversion of land which is under the holding of the petitioner measuring 0.1000 hectares situates under survey No.36 at Vijay Nagar Village in Swaraj Dweep within Port Blair Tehsil, said application was not decided in terms of Rules 4A (3) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Rules 1968 (hereinafter referred to as "Rules of 1968"). 3.

It is strenuously argued on behalf of the petitioner that due to failure on the part of the concerned Sub Divisional Officer to take decision on the application made seeking diversion of the land as alluded above Rule 4A(4) comes into play which makes the petitioner entitled to divert the land on deposit of premium which is determinable under the relevant Rules in order to complete such diversion.

4.

In other words, it is submitted on behalf of the petitioner that failure on the part of the concerned Sub Divisional Officer to decide the application for diversion of the land permits the petitioner to get the benefit of diversion in compliance of Rule 4A(4) of the said Rules of 1968.

5.

It is further submitted that in the event the application for diversion is kept pending which has been made under Rule 4A(1), it permits the applicant to get the benefit in terms of the provision as contained under Rule 4A (4) on diversion of the land in question.

6.

It is also contended that previously in two phases, applications made by the petitioner for diversion of the land from agricultural to commercial were allowed which enabled the petitioner to construct a resort and further diversion is required to the extent of 0.1000 hectares for expansion of the said resort.

7.

Prayer is made on behalf of the petitioner during course of argument that mandamus is required to be issued directing the concerned respondent authorities on compliance of formalities as envisaged under Rule 4A(4) of the said Rules of 1968 to permit use of the diverted land for the purpose of expansion of the resort.

8.

Submissions have also been made on behalf of the petitioner relying upon the statements made in paragraph 10 of the writ petition and paragraph 16 of the affidavit-in-reply. Prayer is made during course of hearing on behalf of the petitioner to dispose of the application of the petitioner seeking diversion.

9.

On the contrary, Ms. Das, learned advocate representing the respondents, on filing affidavit, has disputed the case made out in the writ petition and in this regard submitted that the concerned Tehsildar, on inspection, found that the land in question in respect of which application for diversion was pending before the Sub Divisional Officer was illegally diverted and construction was going on which prompted the respondent authority to issue stay order on 21st June, 2024 on initiation of RC Case being No.1297/TPB/2024. It is further submitted that the said RC Case is still pending for final adjudication. 10.

On perusal of the averments made in paragraph 8 of the affidavit-in-opposition vis-à-vis the averments made in paragraph 9 of the affidavit-in-reply, it is found that in affidavitin-reply the stand taken by the respondent authority in paragraph 8 of the affidavit-in-opposition, there is mere formal denial of illegal diversion of the land. What is striking as it appears from the statements made in paragraph 9 of the affidavit-in-rely that the statements are made to the extent since the application for diversion was not rejected, the concerned Sub Divisional Officer is under obligation to receive premium from the petitioner.

11.

On perusal of Rule 4A of the said Rules of 1968, it appears that under Rule 4A(1), right is conferred upon a person who is holding a piece of land to make application for diversion and procedure has been delineated under Rule 4A(3) (a) to Rule 4A(3)(g) stipulating what are the conditions which are to be taken into consideration in order to allow an application for diversion of land.

12.

At the same time, Rule 4A(4) provides in the event there is no rejection of application seeking diversion, the Sub Divisional Officer on deposit of premium as determinable under this Rule allow such diversion in accordance with terms of the grant made or licence granted in pursuance of the recommendations made in sub-Rule(3).

13.

Therefore reading of the entire Rule 4A reveals a situation that on making application for diversion under Rule 4 A(1) an exercise is required to be made by the Sub Divisional Officer in terms of Rule 4A(3) and in the event after such exercise, the application for diversion is not rejected, then, on deposit of premium as determinable under the relevant Rules permission needs to be accorded pursuant to the recommendations made in sub-Rule (3). The steps which are required to be taken under sub-Rule 4 is not an isolated exercise ignoring the exercise which are required to be made under sub-Rule (3). 14.

In the present case, indisputably no exercise has been made under Rule 4A(3) of the said Rules of 1968. Therefore, straightway invocation of Rule 4A(4) is impermissible that too at a stage when premium has not been determined. 15.

On the contrary, it is found from the statements made in paragraph 8 of the affidavit-in-opposition that on inspection, Tehsildar found that the petitioner, in his own, had diverted the land in question and started construction which is corroborated by the prayer (b) as made in the writ petition wherein the petitioner has prayed for mandamus to maintain status quo in connection with the land in question based on application made for diversion.

16.

In view of the aforesaid scenario, till conclusion of RC Case No.1297/TPB/2024, no order needs to be passed at this stage.

17.

It needs to be recorded that direction to consider application seeking diversion is not permissible at this stage since it is alleged due to illegal diversion of land in question and making construction thereon resulted in initiation of aforesaid RC Case and same is pending.

18.

The writ petition stands dismissed.

19.

The concerned authority is directed to conclude the aforesaid RC Case by ninety days from the date of communication of this order. After the final order is passed in RC Case, the petitioner shall be at leave to take steps in accordance with law, if so advised.

20.

Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocate appearing for the parties upon compliance of usual formalities.

( Saugata Bhattacharyya, J. )