Smti.Christina Raj v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE KRISHNA RAO WPA/516/2024 Smti. Katherina Vaughan Vs.

The Andaman & Nicobar Administration & Others With WPA/517/2024 Shri. James Macfariane Vaughan Vs.

The Andaman & Nicobar Administration & Others With WPA/518/2024 Shri. Jarald Vaughan Vs.

The Andaman & Nicobar Administration & Others With WPA/519/2024 S`hri. Jonty Vs.

The Andaman & Nicobar Administration & Others

With WPA/520/2024 Smti. Iris Meyers Vs.

The Andaman & Nicobar Administration & Others With WPA/521/2024 Smti. Marie Ebrahim Vs.

The Andaman & Nicobar Administration & Others With WPA/522/2024 Smti. Christina Raj Vs.

The Andaman & Nicobar Administration & Others For the petitioners : Mr. K.M.B Jayapal For the respondents : Mr. V.D.Sivabalan Mr. Arun S. Kumar Heard on : 03.07.2025 and 08.07.2025 Judgment on : 14.07.2025

KRISHNA RAO, J.

1.

The petitioners have challenged the order passed by the Sub Divisional Officer, Mayabunder in File No.

168/Rev/AC(HQ)/N&M/SDO/2022 dated 8th October 2022 under Section 152 (1)(a) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 directed the Tehsildar, Mayabunder Tehsil to take possession of the land bearing survey no. 46, area 3.64 hects classified as P-1,situated at Lataw village under Mayabunder Tehsil recorded in favour of Shri Saw Tomin, immediately.

2.

Mr. K.M.B.Jayapal, Learned Advocate representing the petitioner submits that the land bearing survey no. 46, area 3.64 hects classified as P-1, situated at Lataw village under Mayabunder Tehsil is recorded in the name of one Saw Tomin. He being the recorded tenant of the subject land, on 07th March 1963 orally agreed to convey the said land in favour of the father of the petitioner G.Vaughan for a total sum of Rs. 70,000/- in presence of witnesses. The father of the petitioner has paid the total sale consideration and taken possession of the said land.

3.

Mr. Jayapal submits that the father of the petitioner has started cultivating the said land and after the death of father,

the petitioners being the legal heirs continuously cultivating paddy crops in the said land. He submits that the petitioners have also obtain electric connection in the said land for cultivation and also paying land revenue to the respondent authorities.

4.

On 7th September 2022 a paper publication was made by the Sub Divisional Officer for initiation of proceeding under Regulation 152 of the Andaman and Nicobar Land Revenue and Land Reform Regulation 1966. On 20th September 2022, the husband of the petitioner has filed an objection against the said publication stating the fact that the land was never remained abandon rather the petitioners are cultivating the paddy crops and have also planted fruit bearing trees.

5.

Mr. Jayapal submits that the Sub Divisional Officer, had fixed the matter on 27th September 2022 and on the said date, the father of the petitioner filed an application for adjournment and accordingly the matter was fixed on 4th October 2022 and on the said date the father of the petitioner has appeared before the Sub Divisional Officer and informed that the petitioner is having several documents to show that the subject land was never abandon and the petitioner is used for the purpose of cultivating crops.

6.

Mr. Jayapal submits that instead of giving an opportunity to produce documents and without supplying reports and the documents relied by the Sub Divisional Officer on the basis of which the proceeding was initiated, passed the impugned order. He submits that the Sub Division Officer has not decided the issues raised by the petitioner and only on the basis of the report of the revenue authority has passed the impugned order without providing the report the petitioner.

7.

Mr. Jayapal submits that by an order dated 4th October 2022 the Sub Divisional Officer has reserved the matter for orders but neither any date was fixed for orders nor the impugned order was communicated to the petitioner. He submits that only when the petitioner has applied for certified copy of the impugned order, the petitioner came to know about the same.

8.

Mr. Jayapal submits that the petitioner has informed the Sub Divisional Officer about the pendency of civil suit and the interim order passed by the competent Civil Court but the Sub Divisional Officer failed to consider the order of injunction on the pretext that the Sub Division Officer is not a party to the suit.

9.

Mr. V.D.Sivabalan, Learned Advocate representing the respondent authorities submits that the field staff has reported that land bearing survey no. 46, measuring an area of 3.64 hects classified as P-1 situated at Lataw village under Mayabunder Tehsil though recorded in the name of Saw Tomin but the land is lying vacant without cultivation and the recorded tenant is not available in the said locality. 10.

On receipt of report by the Sub Divisional Officer, notice was published in the English Daily News Paper for the information of General Public and called for claims and objection if any within fifteen days from the date of receipt of the publication. He submits that after publication of notice one Allen Vaughan filed objection on 20th September 2022 stating the fact that on 07th March 1963 orally agreed to convey the said land in favour of the father of the petitioner G.Vaughan for a total sum of Rs. 70,000/- in presence of witnesses. The father of the petitioner has paid the total sale consideration and taken possession of the said land.

11.

Mr. Sivabalan submits that several opportunity was given to the petitioner but the petitioner has not filed any documents in support of his claim and thus the Sub Divisional Officer has no other option to passed the impugned order. He submits that

the petitioner has relied upon only the order of stay passed by the Civil Court but it is find that the civil suit is between the private parties and the Sub Divisional Officer is not a party to the suit and interim order is not binding upon the Sub Divisional Officer.

12.

Mr. Sivabalan submits that taking the advantage of the absence of original recorded tenant, the petitioner unauthorizedly occupied part of the area of the said land with the intention to grab the said landed property. He submits that the Sub Divisional Officer considered the report of the field staff and found that the land is lying vacant and no one has paid Land Revenue of the said landed property since the year 2020. He submits that only obtaining electricity will not establish right over the property.

13.

Mr. Sivabalan submits that the land bearing survey no. 48/P/5 area 0.10 hects situated at Lataw village is recorded in the name of the brother of the petitioner and the land bearing survey no. 43 and 44 measuring an area of 0.1472 hects at Mayabunder village is jointly recorded in the name of the petitioner and others.

14.

Mr. Sivabalan submits that after the order passed by the Sub Divisional Officer, the revenue authority has taken physical possession of the property and also rectify the revenue

record by recording as Revenue Department instead of Saw Tomin.

15.

Mr. Sivabalan submits that the writ petition is not maintainable as the impugned order passed by the Sub Divisional Officer is appealable order under Regulation 28. 16.

Regulation 152 and 162 of the Andaman and Nicobar Land Revenue and Land Reform Regulation 1966 reads as follows:

"152. (1) Where, during the period of one agricultural year: (a) an occupancy tenant or a non-occupancy tenant does no cultivate his holding or leaves the locality in which he usually resides without making any arrangement for the cultivation of the holding, or (b) a grantee does no cultivate the holdings given under the grant or leaves the village in which he usually resides without making proper arrangement for the maintenance of the holding given under the grant.

The Sub-Divisional Officer may, after such enquiry as he may deem necessary take possession of the land comprising the holding and arrange for its cultivation and upkeep by letting it out for a period of one agricultural year at a time on behalf of such occupancy tenant, non occupancy tenant or grantee.

(2) Where such occupancy tenant, non-occupancy tenant or grantee or any other person lawfully entitled to the land claims it within a period of three years from the commencement of the agricultural year next following the date on which the Sub-Divisional Officer took possession of the land, it shall be restored to him on payment of the dues, if any, and on such terms and conditions as the Subdivisional Officer may think fit: Provided that no such land shall be restored to the possession of the tenant or grantee or other person unless the period for which such land has been let out by the SubDivisional Officer under sub-section [1] has expired/

(3) Where no claim is preferred under sub-section [2] or if a claim is preferred and disallowed the Sub-Divisional Officer shall make on order declaring the holding abandoned and the holding shall vest absolutely in the Government from such date as may be specified in that behalf in the order.

(4) Where a holding is decided abandoned under subsection [3], the liability of such occupancy tenant, nonoccupancy tenant or grantee for the arrears of revenue due from him in respect thereof shall stand discharged.

162. the interest of a tenant in his holding or any part thereof shall be extinguished.

(a) when he dies leaving no heir entitled to his interest under this Regulation; or (b) when he surrenders his holding or such part; or (c) when the holding or such part has been transferred, let out or used in contravention of the provisions of this Regulations; or (d) when the land comprised in the holding has been acquired under any law for the time being in force, relating to acquisition of land; or (e) when he has been rejected under this Regulation; or (f) when he has been deprived of possession and his right to recover possession is barred by limitation; or (g) when his holding is declared as abandoned." 17.

As per direction passed by this Court the Learned Advocate representing the respondent authorities has produced original record of the proceeding initiated under Regulation 152 of the LR &LRR, 1966. It reveals that the Sub Divisional Officer has initiated the proceeding on receipt of report from Tehsildar, Mayabunder Tehsil dated 8th June 2022. The report of the Patwari dated 8th June 2022 reads as follows: "Report Sub: Abandonment of a recorded land at Lataw village under Mayabunder Tehsil.

On 08.06.2022, during a field visit of Lataw village it is found that a paddy land near Panighat junction, Lataw is found lying vacant, unutilized and uncultivated for the past may years and the recorded tenant has left from the village without leaving any legal heirs/ family members. As per revenue records, the land bearing Sy. No. 46, measuring area 3.64 Ha, classified as P-I comprised in holding no. 13, situated at Lataw village under Mayabunder Tehsil stands recorded in favour of Saw Tomin.

During local enquiry, it is found that the recorded tenant Saw Tomin is found missing/left from the Lataw village long back (20 years or so) and there are no legal hears or any of his family members available in the concerned Gram Panchayat Rampur jurisdiction. Field inspection reveals that an areas of about 0.6000 Ha (approx.) out of Sy.No. 46 is occupied by (i) Allen Vaughan and (ii) Saw Tonny in the form of plantation (coconut, arecanut, banana and mango tree etc.), fencing and 02 nos. RCC structures (house) and 01 semi RCC small shop. Further, an area of about 0.3000 Ha has been utilized for Main road (NH4) (road from Panighat junction towards Diglipur). The remaining area of about 2.74 Ha lies vacant, unutilized and has not been cultivated for the past 20 years or so.

A copy of RoR (old and new), Sketch map and village map is submitted for reference please.

Submitted please."

On publication of notice in the English News Paper, the husband of the writ petitioner has filed an objection stating that on 07th March 1963 orally agreed to convey the said land in favour of the father of the petitioner G.Vaughan for a total sum of Rs. 70,000/- in presence of witnesses. The father of the petitioner has paid the total sale consideration and taken possession of the said land. In the said objection it was also mentioned that the petitioners have paid land revenue and also obtained electric connection. In the objection copies of land revenue receipts and electric consumption bills were also enclosed.

18.

The petitioner has also filed civil suit before the Learned Court of Civil Judge, Senior Division at Mayabunder being other suit no. 40 of 2022 with respect of the suit property and in the

suit, the Learned Judge has also granted an interim order directing the parties to maintain status quo with regard to right, title, possession, nature and character of the suit property. The pendency of the suit and the interim order passed by the Learned civil court was duly intimated to the Sub Divisional Officer.

19.

The Sub Divisional Officer has passed the impugned order holding that the electricity bills and land revenue receipts cannot be considered as proof of tenancy and since the year 2020 no land revenue is paid and the land revenue which the petitioner is relying upon are in the name of Saw Tomin whose existence is unknown. The Sub Divisional Officer ignored that the order passed by the Learned Civil Judge, Senior Division at Mayabunder on the pretext that the Sub Divisional Officer is not the party. It is not denied that the suit filed by the petitioner is not connected with the property in question. Once the authority came to know that a suit is pending and an order of injunction is passed with regard to right, title, possession, nature and character of the suit property, the Sub Divisional Officer ought not have ignored the order of injunction.

20.

As per Regulation 152(1)(a) of the A&N LR&LRR, 1966 provides that "an occupancy tenant or non-occupancy tenant does not cultivate his holding or leaves the locality in which he

usually resides without making any arrangement for the cultivation of the holding". In the case in hand the where about of the recorded tenant is not known. It is the case of the petitioner that in the year 1963 the recorded tenant on receipt of an amount of Rs. 70,000/- handed over possession to the father of the petitioner and the petitioner is in occupation and petitioner is cultivating in the property. The Sub Divisional Magistrate has not considered the second part of Regulation 152(1)(a) which provides "or leaves the locality in which he usually resides without making any arrangement for cultivation of the holding".

21.

The Sub Divisional Officer has initiated the proceeding on receipt of report from the Tehsildar which contains the report of area Patwari. In the field report of area Patwari reveals that an area of 0.6000 hects of land in survey no. 46 occupied by the petitioners in the form of plantation (Coconut, arecanut, banana and mango trees) fencing and 02 numbers of RCC structures (house) and 01 semi pucca small shop. The report further reveals that an area of 0.3000 hect has been utilized for main road (NH4).The remaining area about 2.74 hects is vacant, unutilized and not been cultivated for the last 20 years. 22.

The Sub Divisional Officer has initiated the proceeding on the basis of the report of the Tehsildar consisting of field report

of area Patwari but has not considered the field report properly. The report itself proves that in part of the land the petitioner is in occupation and planted various fruit bearing trees and also constructed houses and shop. The part of land utilized for construction of National Highway but the Sub Divisional Officer has declared total land as abandon and directed to take possession of the total land.

23.

This Court also finds that the Sub Divisional Officer has not served the copy of report and the statement of witnesses to the petitioner and the petitioner could not get an opportunity to deal with the same.

24.

As regard the issue of maintainability this Court finds that the Sub Divisional Officer has violated the provisions of natural justice by not providing the report to the petitioner and has relied upon the said reports and passed the impugned order thus the writ petition is maintainable.

25.

Regulation 162(g) of the A&N Islands LR& LRR, 1966 the interest of a tenant in his holding or any part thereof shall be extinguished when his holding is declared a abandoned. In the case in hand the Sub Divisional Officer has passed an order directing the Tehsildar to take possession of the land in question by declaring the land as abandoned but failed to considered that part of the land has utilized for the purpose of

National Highway and the said part of land has not set apart. As per report of field staff, the petitioners are in occupation of the property and planted various fruit bearing trees and also constructed house. The petitioners have also filed suit with respect of the suit property and obtained an order of injunction. 26.

Considering the above, the impugned order passed by the Sub Divisional Officer, Mayabunder dated 8th October 2022 is set aside and quashed. The Tehsildar, Mayabunder Tehsil is directed to correct the revenue record of the land bearing Survey no. 46 measuring an area of 3.64 hects situated at Lataw village, Mayabunder Tehsil in the name of Saw Tomin forthwith.

27.

However, this order will not prevent the Sub Divisional Officer for initiation of fresh proceeding against the petitioners in accordance with law. If the Sub Divisional Officer initiate any proceeding under Regulation 152 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulations, 1966, the Sub-Divisional Officer shall keep in mind that the petitioners are in occupation of part of the land by planting fruit bearing trees, constructing house and shop and the Civil Suit pending before the learned Court.

28.

WPA/516/2024, WPA/517/2024, WPA/518/2024, WPA/ 519/2024, WPA/520/2024, WPA/521/2024 and WPA/522/ 2024 are allowed.

(KRISHNA RAO, J.)