Venkateshwar Rao v. The Chief Secretary And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR *** MAT/20/2023 IA No:CAN/1/2023, CAN/2/2023 Venkateshwar Rao Vs.
The Chief Secretary and others Mr. KMB Jayapal ... for the appellant Mr. V.D.Sivabalan ... for the respondent nos.1,2 & 3 September 19, 2023 [SR] Item No.16 The memorandum of appeal has been taken up assailing the order dated December 14, 2022 passed in WPA/811/2022 along with the leave to prefer the instant appeal as the appellant herein was not arraigned as party in the writ petition. The dispute relates to an immovable property and the approach was made by the writ petitioners to the Tehsildar for demarcation thereof.
Since the said representation was kept pending, the approach was made to the writ Court for direction upon the Tehsildar to take immediate steps on the basis of the said representation.
By the impugned order dated December 14, 2022, the writ petition was disposed of directing the Tehsildar, Port Blair, South Andaman to consider and dispose of the representation filed by the writ petitioners therein on 28th September, 2022 within three weeks from date in accordance with law.
The instant appeal has been filed by a non-party alleging that there is a civil suit pending between the appellant and the writ petitioners in respect of the self same property and on being apprraised the fact that the Tehsildar passed an administrative order of stay of the demarcation proceeding until the disposal of the said suit.
It is further contended that the order passed in the writ petition filed by the writ petitioners therein had been obtained on suppression of fact and therefore, the appellant is in fact aggrieved by such direction. It is further contended that taking advantage of the impugned order, passed in the said writ petition, a further notice of demarcation has been issued to the appellant and therefore the appellant should be regarded as an aggrieved person.
We are unable to comprehend the submission advanced by the appellant in this regard. Law does not create any fetter into a person who is not impleaded as party in a proceeding to prefer an appeal against the order provided the order vitally affects his right. Every order which does not affect the right of the parties either in relation to the status of the property or otherwise is not amenable to be challenged by such person and the court while granting leave to appeal must record its satisfaction on the effect of the impugned order upon appellant.
We had taken anxious consideration over the facts pleaded in the instant application seeking leave to appeal wherefrom it appears that the notice at page 56 of the said application though issued for demarcating the land but it cannot be co-related with
the impugned order which simply directs the Tehsildar to consider and dispose of the representation filed by the writ petitioners therein within a time frame in accordance with law. Obviously, when the petitioners have claimed semblance of right in respect of the property, it is expected that the Tehsildar, before proceeding to dispose of the said representation, would afford an opportunity of hearing to all the interested persons. There is no allegation forthcoming in the instant matter that there is any defiance of the aforesaid rule nor there is any apprehension shown in this regard. Whether the demarcation notice is within the realm of the power conferred upon the Tehsildar is an independent and distinct cause of action unrelated with the impugned order and therefore we cannot grant leave to the appellant to file the instant appeal against the said impugned order.
The application seeking leave to appeal is dismissed. Consequently, the appeal is also dismissed. The connected application being CAN/1/2023 is also accordingly dismissed. No order as to costs.
Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.
( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )