Shri.K.Ramachandran v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE ANIRUDDHA ROY WPA/510/2024 SHRI K. RAMACHANDRAN ... PETITIONER VS.

THE ANDAMAN AND NICOBAR ADMINISTRATION AND OTHERS ... RESPONDENTS For the petitioner : Ms. G. Mini, Advocate For the respondents : Ms. Babita Das, Advocate Reserved on : February 25, 2025 Judgment on : March 03, 2025 ANIRUDDHA ROY, J.

1.

This is hearing of a writ petition upon affidavits. Parties have filed their affidavit-in-opposition and affidavit-in-reply, the same are on record.

FACTS:

2.

The petitioner claims that the father of the petitioner, one K. Karupaiah, since deceased, was a Pre-1978 encroacher in respect of a piece of land bearing Survey No. 203 more of less 1 hectares situated at Teylarabad village, District:- South Andaman (for short, the land).

3.

The Administration of the Islands had promulgated a scheme dated August 17, 1987 (for short, the scheme), Annexure P-1 at

page 23 to the writ petition. Through the said scheme, the Administration of the Islands decided to regularize the encroached Govt. land in favour of the respective occupiers who are Pre-1978 encroachers by grating licence.

4.

The revenue authority had conducted a survey and found the deceased father of the petitioner as an encroacher in respect of the land. A list of Pre-1978 encroachers was prepared by the High Power Committee (HPC). In such list prepared by the HPC, the name of deceased father of the petitioner has featured at Sl. No. 43, Annexure P-3 at page 39 to the writ petition with a finding that the deceased father had abandoned the land and no more in occupation as an encroacher and accordingly the case of the deceased father for regularization was not recommended despite there being an application filed by the deceased father on February 26, 1988, Annexure P-2 at page 29 to the writ petition. 5.

The jurisdictional Tehsildar on the basis of list of the encroachers provided by the High Power Committee issued notice to all concerned whose names were appearing in the list of HPC to appear before him on July 12, 1989 and R.C. Case No. 28 of 1989 was initiated, Annexure P-3 at page 31 to the writ petition. 6.

The deceased father of the petitioner along with all his family members were compelled to move to Mainland on May 08, 1989 for treatment and returned to Port Blair on November 14, 1989. Copies

of the supporting documents are enclosed as Annexure P-4 at page 41 to the writ petition.

7.

Therefore, on July 12, 1989 when the date was fixed by the Tehsildar for causing the necessary exercise for regularization of the encroached land, the deceased father of the petitioner was not there and he could not attend the proceeding, accordingly, the case of the petitioner's father could not be considered for regularization of his encroachment.

8.

A notice dated July 5, 1978 was issued by the Tehsildar was served upon the deceased father, Annexure P-5 at page 42 to the writ petitioner asking the father of the petitioner to vacate the land, which stated that the father of the petitioner was in occupation of the said land on or before July 11, 1978, Annexure P-5 at page 42 to the writ petition.

9.

The deceased father after returning from the Mainland, since no licence was issued in his favour in respect to the land, submitted applications dated December 22, 1989 and August 7, 1990. Since those applications were not responded, the deceased father submitted a representation on September 5, 1991, Annexure P-6 at page 43 to the writ petition.

10.

The Counsellor (Revenue) had recommended the name of the deceased father of the petitioner before the Assistant Commissioner,

South Andaman on September 13, 1991, Annexure P-7 at page 44 to the writ petition.

11.

The deceased father of the petitioner since then made several representations between December 10, 1993 and January 09, 2020, Annexure P-8 to P-17 at pages 43 to 58 to the writ petition. 12.

On February 16, 2020 the deceased father had expired. 13.

Since no result has yielded, the petitioner being successor-ininterest had moved the first writ petition being WPA/872/2023, when a Coordinate Bench by its order dated August 17, 2023, Annexure P-19 at page 60 to the writ petition, has disposed of the said writ petition directing the Deputy Commissioner, South Andaman to consider and dispose of the representation submitted by the deceased father of the petitioner in accordance with law in the manner and mode directed therein.

14.

The Deputy Commissioner, then after hearing the petitioner had disposed of the representation of the deceased father of the petitioner by its impugned order dated August 28, 2024, Annexure P-20 at page 66 to the writ petition, whereunder the claim of the deceased father and/or the petitioner for regularization of the land was rejected.

15.

Being aggrieved by the said impugned order dated August 28, 2024, the petitioner has filed this second writ petition with the following prayers:-

"i.

A Writ and / or Writs do issue in the nature of mandamus directing the respondent authorities to act accordingly in accordance with law.

ii.

A Writ and/or writs do issue in the nature of Mandamus Quashing and/or setting aside and/or annulling and/or cancelling and/or Rescinding the Impugned order dated 22.08.2024 passed by the Deputy Commissioner, South Andaman, Port Blair.

iii.

A Writ and/or Writs do issue in the Nature of Mandamus Commanding the Respondent to issue licence to the legal heirs of the Late Karuppaiah as per the scheme of pre 1978 regularization scheme.

iv.

Writ of Certiorari be issued Commanding the Respondent Authorities and each one of them to present the records in the present proceeding for giving conscionable Justice to the present petition. v.

Cost of the present writ petition.

vi.

Any other and/or further Appropriate Writ or Writs, and/or order or orders, and/or direction of directions be made as to your Lordship may deem fit and proper."

SUBMISSIONS:

16.

Ms. G. Mini, learned counsel appearing for the petitioner referring to the said scheme, at the outset, submits that the scheme was promulgated to regularize the land by granting licence which were encroached Pre-1978. Referring to the revenue order sheet, Annexure P-3 at page 30 to the writ petition, learned counsel Ms. Mini submits that in pursuance to instructions contained in the said scheme and the order of the Deputy Commissioner, Andaman dated September 25, 1987, the Tehsildar forwarded a list of encroachers who occupied the government land prior to December 31, 1978 and other details as enlisted by the HPC in respect of the revenue villages. The order sheet further shows that the hearing was fixed on July 12,

1989. Then she refers to the order dated July 12, 1989 from page 31 to the writ petition and draws attention of this Court to Sl No. 43 at page 39 from the said order sheet which has recognized that the deceased father had occupied the government land measuring an area about 1.00 hectares at Survey No. 203 during the year 1978, but has abandoned the land and no more is in occupation thereof. Hence, the case of the father had not been considered for eligible and not recommended. She then refers to Annexure P-4 at page 41 to the writ petition to shows that the said document dated November 24, 1989 shows that the deceased father of the petitioner was allowed with the leave during the period between May 12, 1989 and November 9, 1989 and he had returned and resumed duty on November 15, 1989.

17.

Thus, Ms. Mini submits that on July 12, 1989 when the hearing took place before the Tehsildar, the deceased father was on leave as he went for treatment at Mainland and therefore could not attend the hearing and the recording was made in the revenue order sheet as reflected against the Sl. No. 43 therein. 18.

Learned counsel for the petitioner then refers to the representation submitted by the deceased father on September 5, 1991, Annexure P-6 at page 43 to the writ petition and submits that immediately after he returned to the Islands on December 22, 1989 and August 7, 1990 he had submitted two applications before the authority for reconsideration for his case and reference of his case for

regularization of the encroached land. She submits those two applications had not been disposed of.

19.

She then refers Annexures P-7 to P-17 to the writ petition and submits that repeated representations were made during September 13, 1991 till January 09, 2020, but the authority did not pay any heed thereto.

20.

Learned counsel for the petitioner then draws attention of this Court to the eviction notice dated July 5, 1978, Annexure P-5 at page 42 to the writ petition issued against the deceased father in connection with the revenue case No. 82 of 1989, which shows the said plot being the subject matter of the notice and the notice was issued in exercise of section 202 of the Andaman and Nicobar Islands Revenue and Land Reforms Regulation, 1966 (for short, Andaman Regulations) which had directed the deceased father to vacate the land as he was in unauthorized occupation thereof and the same also recognized that the unauthorized occupation was on or before July 11, 1978.

21.

Referring to the impugned order, she submits that the grounds for rejection were two fold. Firstly, since the deceased father could not attend the hearing and/or the proceeding on July 12, 1989, the finding of the Tehsildar was reflected against Sl. No. 43 of the order sheet at page 39 to the writ petition. On the one hand it recorded the existence of the deceased father at the land as an encroacher and on the other hand it recorded the land was made abandoned and no

more was in occupation as an encroacher. Hence, the deceased father was found to be ineligible and his case was not recommended. 22.

Learned counsel for the petitioner submits that absence of the deceased father would appear from the record to be bonafide on July 12, 1989 as he was not in the Islands and went to Mainland for treatment with his family members. Immediately after the deceased father returned the Island, he submitted two applications on December 22, 1989 and August 7, 1990 which had not been considered by the authority, though, the eviction notice acknowledged the existence of the deceased father of the petitioner on the encroached land as on July 11, 1978. Therefore, the first finding in the impugned order is clearly perverse being contrary to records. 23.

Her second fold of attack on the impugned order was that the second ground for rejection was withdrawal and/or abolition of the 1978 scheme, which is not tenable in law as because when the scheme was in force, the deceased father applied thereunder and then made necessary applications on December 22, 1989 and August 7, 1990 but the authority failed and neglected to consider the same. The authority now cannot take the plea of withdrawal or abolition of the scheme.

24.

Accordingly, Ms. G. Mini, learned counsel for the petitioner submits that it is a fit case where the land should be regularized by granting licence in favour of the petitioner and consequently this writ petition should be allowed.

25.

Ms.

Babita Das, learned counsel appearing for the respondents-Administration. Referring to the said order dated July 12, 1989 submits that the fact finding enquiry of the Tehsildar clearly shows that though the deceased father was there on the land but as on the date of the enquiry by the Tehsildar upon due notice to him, nobody appeared as the land was made abandoned by them, as the deceased father and none of his family members were residing there. Therefore, the deceased father was found to be ineligible for regularization of the land in his favour and his case was not recommended.

26.

Ms.

Babita Das, learned counsel appearing for the Administration of the Islands then submits that the 1987 scheme was framed as a welfare scheme to accommodate the encroachers to provide them shelter by regularizing the encroached land upon granting licence in their favour. It was a one-time scheme. Since the scheme has expired and/or withdrawn and/or abolished the petitioner being alleged successor-in-interest cannot step into the shoes of his deceased father and claim regularization of the said land in his favour. In support of such submissions, learned counsel for the Administration has drawn attention of this Court to the averments made in the affidavit-in-opposition.

27.

To support the impugned order, learned counsel Ms, Das submits that the impugned order is otherwise well reasoned and versed and upon considering all the relevant contemporaneous

materials, the same was passed. The pleas taken by the petitioner are not admitted facts and required to be specifically proved. The petitioner since could not prove his case before the authority, the claim of the petitioner was rejected. The records shows there are disputed questions of facts, which cannot go into by this writ court. 28.

Ms. Babita Das, learned counsel for the Administration then submits that the impugned order was passed under the Andaman Regulations and the same is appealable order under Regulation 28 of the Andaman Regulations. Hence, this writ petition is not maintainable.

29.

In the light of the above submission, Ms. Das, learned counsel has prayed for dismissal of the writ petition and that the said impugned order should not be interfered.

DECISIONS:

30.

After considering the rival contentions of the parties and upon perusal of materials on record, it appears, at the outset, to this Court that the documents and records disclosed in this proceeding are not disputed by the parties.

31.

At the outset, this Court first proceeds to decide the point of maintainability of the writ petition raised on behalf of the respondents. The admitted fact that the steps for regularization of the land of the deceased father of the petitioner were taken pursuant to the application submitted by him on February 26, 1988, Annexure P-

2 at page 29 to the writ petition under the said 1987 scheme when the scheme was on vogue. The order of rejection was passed by the Tehsildar on July 12, 1989. The deceased father then applied on December 22, 1989 and August 7, 1990 before the authorities concerned after the said order was passed on July 12, 1989. The deceased father made a representation on September 5, 1999, Annexure P-6 at page 43 to the writ petition. Neither the two said applications nor the said representation dated September 5, 1991 were considered and disposed of by the authority concerned. 32.

Regulation 28 of the Andaman Regulations provides that an appeal shall lie from every original order passed under this regulation or the rules made thereunder. Regulation 202 of the Andaman Regulations provides for penalty for unauthorized occupation of land. If an order is passed under Regulation 202 of the Andaman Regulations, no doubt an appeal shall lie under Regulation 28 of the Andaman Regulations.

33.

However, in the instant case, the impugned order was passed in terms of the application and representation submitted by the deceased father and subsequently the claim of the petitioner claiming regularization of the encroached land in terms of the claim already raised contemporaneously by the deceased father and was pursed since 1988 till 2017, which is a continuous sequence in connection with the said 1987 scheme. Therefore, the impugned order was passed in connection with the said 1987 scheme and not under

Regulation 202 or under any other regulations of the Andaman Regulations.

34.

Therefore, the order impugned in the instant writ petition is not appealable under Regulation 28 of the Andaman Regulations. Hence, the objection with regard to the maintainability raised on behalf of the Administration of the Islands stands overruled and rejected.

35.

This writ petition is perfectably maintainable. 36.

Now this Court proceeds to deal with the writ petition on merit. 37.

One most important fact which is existing on records and also admitted by the parties is that the petitioner being the successor-ininterest of the deceased father is still in continuous and uninterrupted possession and occupation of the land, as pleaded in paragraph 8 of the writ petition and not denied in paragraph 6 of the affidavit-in-opposition.

38.

The most vital evidence, according to this Court, in addition to any other is the eviction notice dated July 5, 1978 served upon the deceased father, Annexure P-5 at page 42 to the writ petition which clearly shows that the Administration had acknowledged and admitted the deceased father, while issuing the eviction notice under section 202 of the Andaman Regulations, as an unauthorized occupant on or before July 11, 1978 on the land.

39.

Necessary averments in this regard would appear in paragraph 9 of the writ petition which has been dealt with by the Administration in paragraph 7 of its affidavit-in-opposition in the following manner: "7. Save what are matters of record and save as would appear there from, the contents contained in paragraph 9 of the writ petition is admitted to the extent born by records but anything contrary or inconsistent therewith is denied and disputed." 40.

The statement in the affidavit-in-opposition clearly shows that neither the existence nor the content and purport of the said eviction notice dated July 5, 1978 was denied by the respondents. This clearly shows that the deceased father was a Pre-1978 encroacher on the land and was eligible for regularization under the provisions of the said 1987 scheme.

41.

Insofar as the fact finding recording by the Tehsildar in its order dated July 7, 1989 against the deceased father of the petitioner in Sl. No. 43 at page 39 to the writ petition is concerned, the same also recorded as follows :- "43. Shri Karuppaiah.

He had occupied Government land measuring an area of 1.00 hect bearing survey No. 203 during the year 1978 but has than abandoned the land and no more is in occupation of the land as encroached. Hence, his case is not eligible and not recommended."

42.

The above recording shows that the deceased father had occupied the government land measuring an area of 1.00 hectares bearing Survey No. 203 during the year 1978. Such finding has also confirmed that the deceased father was a pre-1978 occupier on the

land. The next part of the above finding shows that he had abandoned the land and no more is in occupation of the land as encroached. Hence, the deceased father was found to be ineligible to be considered and his case was not recommended under the said 1987 scheme. The said second part has also confirmed the encroachment of land by the deceased father but no one was found to be there as on July 12, 1989, it was found by the Tehsildar that the land was kept abandoned. The contemporaneous record being Annexure P-4 at page 41 to the writ petition shows that during the period May 12, 1989 till November 14, 1989, the deceased father was not available at the Islands and he resumed his duty at his employment place on November 15, 1989.

So deceased father could not be present on July 12, 1989 when the order was passed by the Tehsildar with a finding that the land was made abandoned and no one available therein. The said document had been pleaded by the petitioner in paragraph 7 of the writ petition. Paragraph 6 of the affidavit-in-opposition has dealt with the statement made in the writ petition, wherefrom it appears that the respondent have not denied and disputed the said document in any manner. 43.

The order impugned in this writ petition has rejected the claim of the petitioner and contemporaneous claim of the deceased father principally on two grounds.

44.

Firstly, the deceased father was not found in possession of the land contemporaneously when the order was passed on July 12,

1989. Secondly, since 1987 scheme has been withdrawn and/or expired and/or abolished, the claim of the deceased father and/or the petitioner cannot be considered.

45.

On a meaningful reading of the 1987 scheme, Annexure P-1 at page 28 to the writ petition, this court is of the firm and considered view that, this was a welfare scheme propounded by the Welfare State to provide shelter to the homeless persons who were compelled to encroach the government land for their shelter. Such welfare and beneficial schemes have to be read, understood and also to be construed in a most liberal manner and as far as possible in favour of the beneficiary of the scheme. The approach of the State, who is the sovereign, should be to give the effect of the scheme in a most liberal and purposive manner, so that as much as homeless persons can be accommodated by providing shelter if they otherwise qualify the terms and conditions of the scheme.

The solemn obligation of the sovereign shall be to ensure that the object of such welfare policy is not defeated on technical ground, when the beneficiary is otherwise found to be qualified to receive the benefit thereunder. While giving effect to the said scheme, the state has to also bear in mind the underlying objective of Article 21 of the Constitution of India.

licence in their favour. Therefore, the qualifying condition which was mandatory to receive benefit under the said 1987 scheme, one should be Pre-1978 encroacher of a government land. Only then, he/she shall be considered for granting licence by the State. 46.

In the facts of the instant case, the government record shows as, already discussed above, that admittedly the deceased father was a pre-1978 encroacher in respect of the said land and since he was in sanctioned leave, he could not be present on July 12, 1989 when the order was passed by the Tehsildar and the deceased father was found to be ineligible to be considered under the said 1987 scheme. The contemporaneous records, as discussed already, disclosing in the proceeding shows that the absence of the deceased father on July 12, 1989 was bonafide as he was away of the Island for treatment with his family members. At this juncture, liberal construction of the said 1987 scheme comes into play in favour of the deceased father and consequently the petitioner who is successor-in-interest of the beneficiary under the 1987 Scheme.

47.

The second reason that the scheme having been expired that the case of the petitioner and/or the deceased father cannot be considered has to be seen and examined in the light of the contemporaneous application which were submitted by the deceased father on December 22, 1989 and August 7, 1990 and the representation dated September 05, 1991 at page 43 to the writ

petition which were kept pending by the concerned authority, for decades.

48.

The concerned authority was obliged in law to decide those applications and representations contemporaneously. By not doing so, the authority has failed to discharge its obligation for which at this belated stage, the authority cannot take the plea of expiry of the scheme.

49.

Inasmuch as the, deceased father was a bonafide applicant under the said 1987 scheme who applied on February 26, 1988, Annexure P-2 at page 29 to the writ petition which is prior to March 31, 1988 as pleaded by the respondents in paragraph 6 of its affidavit-in-opposition, when the scheme was in vogue and/or in operation. The petitioner being the successor-in-interest still is in continuous and uninterrupted possession of the land. 50.

In view of the foregoing discussions and reasons, the impugned order dated August 28, 2024, Annexure P-20 page 66 to the writ petition stands set aside and quashed.

51.

The respondent no.2 and/or respondent No. 4 and/or any other authorities of the respondents shall immediately take steps for regularisation of the encroachment of the land in favour of the petitioner by issuing necessary licence, in accordance with law positively within a period of Ten weeks from the date of

communication of this judgment and order upon, compliance of all the required formalities.

52.

The petitioner shall serve a copy of this Judgment and order upon the Lieutenant Governor who is the Administrator of the Islands, for his perusal and taking necessary steps, if any, required to be taken by him.

53.

With the above observations and directions this writ petition WPA/510/2024 stands allowed, without any order as to costs. ( ANIRUDDHA ROY, J. )