Shri.G.Raja And ORS. v. Shri. Papa Rao And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/63/2024 IA No.CAN/1/2024, CAN/2/2024, CAN/3/2024, CAN/4/2024, CAN/5/2024 With MAT/64/2024 IA No.CAN/1/2024, CAN/2/2024, CAN/3/2024, CAN/4/2024, CAN/5/2024 Shri G. Raja and others Vs.
Shri Papa Rao and others Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the appellants Mr. KMB Jayapal ... for the respondent no.1 Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Administration November 13, 2024 [SR] Item nos. 3 &4 1.
MAT/64/2024 has been filed by a third party seeking leave to appeal against the order dated 21.03.2022 passed in WPA/307/2021. MAT/63/2024 has been filed seeking leave to appeal against the order dated 23.02.2023 in WPA/365/2023 passed by the Single Bench of this Court whereby two fold directions were made on the Deputy Commissioner, South Andaman District.
2.
A hearing was directed to be afforded to the original writ petitioner and the Port Blair Municipal Council and if it is found that the land belongs to the petitioner, the PBMC was directed to handover khas possession to the writ petitioner. 3.
The third party/appellants who are the local villagers seek leave to prefer an appeal as there is a public pathway
and/or road on the land constructed by the PBMC which is being used by the local residents for a substantial period of time before the petitioner purchased the land.
4.
The Deputy Commissioner, after the order was passed, has held that the land as a whole including the road belongs to the petitioner and has handed over the khas possession to him. The Deputy Commissioner has observed that there is road on the land which is being used by the villagers for a substantial period of time as a pathway.
5.
Counsel for the PBMC submits that handing over of the land has been done in view of mandatory directions passed in the order impugned dated 21.03.2022 in WPA/307/2021 and on 23.02.2023 in WPA/365/2023 and passed by the writ court against which MAT/64/2024 and MAT/63/2024. They were also compelled in contempt proceeding.
6.
The PBMC has submitted that they have filed an appeal against the order of the Deputy Commissioner before the Secretary (Revenue), Andaman and Nicobar Administration. 7.
Another Single Bench, in its order dated 18.07.2023 passed in WPA/725/2023 has held that the appeal of the PBMC may have become infructuous.
8.
Having regard to the facts and circumstances of the case and having heard the learned counsel for the parties, this Court is of the view that as to whether a public road can exist on private land and as to whether the PBMC could have lawfully constructed a road on the writ petitioner's land and whether the same was in fact being used as a pathway as claimed by appellants herein for a substantial period of time before
purchase of property by the writ petitioners are all disputed question of facts that cannot be decided in a writ appeal or much less in a writ petition.
9.
In those circumstances, the following orders are passed. 10.
Leave is granted to the appellants to file the instant appeals. CAN/2/2024 in MAT/64/2024 and CAN/3/2024 in MAT/63/2024 is disposed of.
11.
The delay in filing of the instant appeals being CAN/1/2024 in MAT/64/2024 and CAN/4/2024 in MAT/63/2024 are condoned. CAN/1/2024 and CAN/4/2024 are disposed of.
12.
Leave is granted to the appellants to file these appeals without certified copy.
Accordingly, CAN/3/2024 in MAT/64/2024 and CAN/5/2024 in MAT/63/2024 are disposed of.
13.
The appellants are permitted to approach a civil court to establish any easement rights on the writ petitioner's property. 14.
The civil court shall decide the matter uninfluenced by any observation made in any of the four writ petitions being WPA/79/2021, WPA/307/2021, WPA/365/2023, WPA/725/2023 or the contempt applications and proceed to decide upon such easement right in accordance with law, if a suit is filed, within a period of one month from date. 15.
In view of the above, WPA/495/2024 shall stand disposed of. CPAN/20/2022, CPAN/23/2023, CPAN/45/2024 shall also stand disposed of.
16.
There shall be an order of status quo as on date for a period of one month from today insofar as the public pathway is
concerned i.e, the appellants shall be entitled to use the pathway, strictly subject to any order that may be passed by the Civil Court in a proceeding that the appellants may institute, as indicated above.
17.
It is made absolutely clear that the continuation of the aforesaid order shall be at the sole discretion of the Civil Court and the Civil Court shall not be influenced by any observations made in any of the aforesaid proceedings including the present proceeding in deciding to either pass any interim or final relief. 18.
The report of the PBMC filed before this Court is taken on record.
19.
It is also clear that this Court has not pronounced or decided upon the right, title and interest of the appellants in the pathway or any part or portion of the writ petitioner's property and the Civil Court shall be free to decide the same in accordance with law.
20.
In view of the above, MAT/64/2024 and MAT/63/2024 are disposed of. Consequently, all connected applications are also disposed of.
( Rajasekhar Mantha, J. ) ( Partha Sarathi Sen, J. )