Naresh Halder v. The Andaman And Nicobar Administration And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/34/2024 IA No.CAN/1/2024 Naresh Halder Vs.
The Andaman and Nicobar Administration and others Mr Gopala Binnu Kumar ... for the appellant Ms. Babita Das ... for the respondents November 04, 2024 [SR] Item no. 7 1.
The appellant is aggrieved by an order dated 21st June, 2024 passed by a Single Judge of this Court in WPA/263/2024. 2.
In the writ petition, the appellant was aggrieved by an order dated 9th June, passed by the Deputy Commissioner, North and Middle Andaman, the Order of the Assistant Commissioner, dated 19th October, 2023 and the Order of the Chief Secretary, Andaman and Nicobar Administration dated 4th March, 2024.
3.
The order dated 9th June, 2023 of the Deputy Commissioner, North and Middle Andaman was passed pursuant to the direction of this Court in an earlier WPA/936/2023 on 20th February, 2023.
4.
The Deputy Commissioner, North and Middle Andaman by an order dated 9th June, 2023, directed the appellant to deposit a sum of Rs.6,37,500/- as penalty for illegal extraction and transportation of quarry boulders at Mayabunder. The appellant was directed to vacate the remaining encroachment
within 15 days failing which the Tehsildar, Diglipur was directed to remove the encroachment as per the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966.
5.
Against the said order, the appellant preferred an appeal before the Secretary (Revenue)/Appellate Authority under the Regulation, 1966.
6.
By an order dated 25th August, 2023, the appeal was allowed and the order of the Deputy Commissioner, North and Middle Andaman was set aside by the Secretary (Revenue). 7.
Against the said order dated 25th August, 2023, the Deputy Commissioner, North and Middle Andaman himself preferred a review application before the Secretary (Revenue). Pursuant to the application for review, the impugned order was passed.
8.
The order dated 4th March, 2024, which was impugned before the learned Single Bench was passed by the Chief Secretary in the said review application of the Deputy Commissioner. This was so the Deputy Commissioner has become the Secretary (Revenue) in the meantime and the matter has to be sent to a higher authority.
9.
Mr. Gopala Binnu Kumar, learned counsel appearing for the appellant would argue that irrespective of the findings of the Deputy Commissioner or the Secretary (Revenue) on merits, there is a fundamental question of law that arises in these facts.
10.
It is submitted that in terms of Regulation 2(25) of Regulation, 1966, the Deputy Commissioner himself being a Court cannot be a person aggrieved under Regulation 34(1) of Chapter IV. It is argued that the Court itself which is supposed to be an independent adjudicating authority had become a litigant before the higher forum.
11.
It is now well settled in general law and also under the Regulation 1966 in terms of the provisions indicated herein above that only the State i.e the Administration and/or particularly the Tehsildar, Diglipur who can challenge the orders passed against the State and not a Court itself. 12.
On being questioned by this Court as to why this question of law was not argued before the Single Bench, Mr. Gopala Binnu Kumar, has referred to ground no.10 in the writ petition. Since the point of law was urged, the appellant cannot be blamed for omission by the learned advocate representing him in the Court below in this regard.
13.
Indeed it is true that a fact not urged before a Court would bind a litigant all the way up to higher fora. The problem that remains is that the matter is question of law. This Court should have normally remanded the matter back to the First Court for consideration afresh.
14. However given the fact that the State claims that it is losing the revenue and the appellant claims that he has not violated the law, this Court permits the Tehsildar, Diglipur to prefer a formal review application to the Chief Secretary, A & N
Administration against the order of the Secretary (Revenue) dated 25th August, 2023.
15.
The appellant shall be obliged to deposit the said amount of Rs.6,37,500 within a period of one month from date. In the event of non-depositing of the Rs.6,37,500/-, the orders of the Deputy Commissioner dated 9th June, 2023 and Chief Secretary dated 4th March, 2024 as also the writ Court shall revive automatically.
16.
The Tehsildar, Diglipur shall mandatorily and positively prefer a review application within one month. In the event the Tehsildar, Diglipur, does not do so, the review application filed by the Deputy Commissioner, North Andaman shall be treated an one filed by the Tehsildar, Diglipur.
17.
In the event of non-depositing of the aforesaid amount by the appellant, the order of the Deputy Commissioner imposing penalty shall become enforceable automatically by the Assistant Commissioner, North and Middle Andaman.
18.
The order of the Chief Secretary dated 4th March, 2024 shall stand set aside. The impugned order dated 21st June, 2024 passed by the writ court shall also stand set aside. 19.
The appeal and the connected application are disposed of without prejudice to the rights and contentions of the appellant. ( Rajasekhar Mantha, J. ) ( Partha Sarathi Sen, J. )