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

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/39/2024 IA No.CAN/1/2024, CAN/3/2024 The Andaman and Nicobar Administration and others Vs.

Salam @ K. Abdul Salam and another Mr.V.D.Sivabalan ... for the appellants Ms. G.Mini ... for the respondents October 4, 2024 [SR] Item no.3 The appeal is directed against an order dated 5 February 2024 whereby the Learned Single Judge has set aside an order passed by the Tehsildar dated 24 July 2019 and allowed the application for mutation filed by the writ petitioner. Briefly, the writ petitioner had filed an application for mutation in respect of land bearing S.No.582/1, 583/4 being 57 sq.mts and 47 sq.mtrs respectively situated at Buniyadabad Village for mutation on the basis of a will. It is submitted on behalf of the writ petitioner that the will had been duly registered by the Sub Registrar, Port Blair on 30 October 1978. The death certificate of Late Moosa Hajee who expired on 11 February 1985 was also annexed.

In support, the writ petitioner had also relied on the proceedings initiated under section 93 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 being TPB/RC/2191/2011. On the basis of the above documents, the writ petitioner had applied for mutation which was rejected by an order dated 24 July 2019 passed by the Tehsildar.

By the impugned order, the Learned Judge, after considering all the facts and circumstances held that the Tehsildar had acted arbitrarily and in colourable exercise of power in refusing the request for the mutation. There were sufficient documents to justify the prayer for mutation being allowed. In such circumstances, the application for mutation was allowed by the Learned Judge.

Being aggrieved by the above order dated 5 April 2024, this appeal has been preferred by the appellant Administration. It is submitted on behalf of the appellant Administration that in passing the impugned order, the Learned Judge usurped the jurisdiction of the Tehsildar and granted mutation on the basis on an erroneous consideration of the facts and circumstances of the case and contrary to the provisions of the Regulations. On behalf of the respondents, it is submitted that the impugned order is justified and warrants no interference at all. In passing impugned order, the Tehsildar refused to consider the documentary evidence relied on by the petitioner or give any credence to the evidentiary value of the Khasra extract relied on by the petitioner in respect of the subject premises.

Moreover, the Tehsildar ignored Form H being the mutation certificate dated 09.01.1991 as well the Form F issued in terms of Rule 132 of the Rules, 1968 which were relied on by the writ petitioner. In passing the impugned order, the Learned Judge has come to a conclusive finding that the order dated 27 July 2019 issued by the Tehsildar was issued in colourable exercise of power. There is no basis to arrive at such a finding. No facts justifying the said finding have either been adverted to or considered in the impugned order.

and established the right, title and interest of the petitioner has also been arrived at ignoring the objections raised by the appellant Administration. On one hand, the appellant Administration in rejecting the prayer for mutation had failed to consider the documents relied on by the writ petitioner or deal with the same. On the other hand, this was not an open and shut case which justified the prayer of the writ petitioner being granted without the case of the appellant Administration being considered and ignoring the documents in support thereof.

In such circumstances, the impugned order is unsustainable and is set aside. The matter is remanded back to the Tehsildar to hear the parties and decide the matter afresh after taking into account the submissions and the documents relied on by the writ petitioner and the objections raised on behalf of the appellant Administration.

The Tehsildar, in considering the above application for mutation would also consider the fact that in respect of a similar property situated at Haddo Village of Late Moosa Hajee, mutation had been granted in favour of the petitioners. It is made clear that there has been adjudication on the merits of the case and the Tehsildar is at liberty to act without being influenced by any observation made in this order within a period of four weeks from the date of communication of this order. With the above directions, MAT/39/2024 and all connected applications stand disposed of.

( Ravi Krishan Kapur,J. ) ( Prasenjit Biswas, J. )