Shri.Lalta Prasad v. The Lt.Governor And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLIAR ] MAT/68/2024 Shri Lalta Prasad Vs.

The Lieutenant Governor and Others Mr. Ananda Halder ... for the appellant Mr. V.D. Sivabalan ... for the official respondent Mr. K. Sabir ... for the Pvt. respondnet January 7, 2025 [SR] Item No.8 1.

The writ petition was filed by the writ petitioner praying for issuance of a direction upon the State respondents to construct the retaining wall on a government revenue land bearing survey No. 336/2/1, 336/2/2 and 336/3 at School Line village New Pahargaon under Port Blair Tehsil which is now in occupation of the respondent No. 4.

2.

Learned counsel for the petitioner submits that the respondent No. 4 was in possession of the government land, which is below the petitioners held land; and was excavating the lands. Such activity was endangering the petitioner's lands. He has thus sought direction upon the State respondents to construct the retaining wall on the government land. It is submitted that earlier also this Court in WP No. 555 of 2009 filed by the present respondent No. 4, has passed orders directing the respondent no.4 to construct retaining wall. The respondent No. 4, in terms of the said order is thus under a

legal obligation to construct the retaining wall so as to safeguards the petitioner's property.

3.

The writ court after considering the order passed earlier in WP No. 555 of 2009 filed by the present respondent no.4, WPA No.90 of 2010 filed by the present appellant and the other litigation preceding the present writ petition, has disposed of the writ petition in the following terms:- "23. In view of the discussion made herein above, this Court while disposing the instant writ petition permits the writ petitioner to construct requisite number (s) of retaining wall(s) on the boundary line(s) of Government Revenue land bearing survey No. 336/2/1, 336/2/2 and 336/3 under the supervision of Tehsildar, Port Blair Tehsil at his own cost.

24.

It is further made clear that in the event, the writ petitioner is prevented either by the private respondent No.4 and /or his men and agent and /or any other persons the Tehsildar, Port Blair Tehsil shall seek necessary police help from the Station House Officer of PS Pahargaon. 25.

The Station House Officer of P.S Pahargaon is directed to ensure the availability of necessary police personnel on the basis of requisition of the Tehsildar, Port Blair Tehsil at the cost.

26.

With the aforementioned observation, the instant writ petition is disposed of."

4.

The writ court, in our opinion, has allowed the petitioners to take steps for preserving his possession, by constructing requisite number of retaining walls, but under the supervision of the Tehsildar, Port Blair. The writ court has also protected the writ petitioner/present appellant from any interference by the private respondent or any other person, in the event he undertakes construction of the retaining wall. We therefore

failed to appreciate why the petitioner has preferred the instant intra court appeal.

5.

The learned counsel for the petitioner/appellant submits that the petitioner is a retired person and does not have the means to construct the boundary wall or demarcation in terms of the liberty granted to him under the order passed in the writ proceeding. Since the Court has already passed order on 24.11.2009 in WP No. 555 of 2009 directing the present respondent No. 4 to construct the retaining wall, the writ court ought to have issued similar directions.

6.

We find that the prayer in the writ petition filed by the petitioner was for a direction upon the State respondent Nos. 1 to 3 to construct a retaining wall. He has not made any prayer for direction upon the private respondent, which we would appreciate, since no such direction could have been sought in a writ proceedings.

7.

Insofar as the reliance placed on order passed in WP No. 555 of 2009, we consider it apposite to reproduce the said order, which reads as follows :- "After considering the merits of the writ petition and the notice of the Sub-Divisional Magistrate dated 25 September 2009 and the facts that the application for demarcation of the petitioner's land is still pending for consideration before the Tehsildar, Port Blair, the Tehsildar, Port Blair concerned is directed to dispose of the application of the writ petitioner for demarcation of the land in question positively within two weeks from the date of communication of this order.

In disposing of the application, needless to mention the Tehsildar will give a reasonable opportunity of hearing to the petitioner and all other concerned, namely the

private respondent herein Shri Lalta Prasad of New Pahargaon.

Once the application is disposed of, the petitioner will raise necessary wall so that the adjacent building belonging to the private respondent is not damaged in any way. Until the demarcation application is disposed of the petitioner will not make any construction but once the application is disposed of by the Tehsildar, the petitioner will be entitled to make such construction as would be found necessary for protecting his building without, however, damaging or endangering in any way the adjacent building belonging to the private respondent. The writ petition is disposed of. There will be no order as to costs."

8.

From bare perusal of order itself it is apparent that the present respondent No. 4 was the writ petitioner therein. He had approached the writ court seeking a direction for disposal of his demarcation case pending before the Tehsildar, Port Blair.

9.

In such background, the court have prevented the respondent No. 4 from making any construction till disposal of the demarcation application before the Tehsildar. Only after disposal of such application before the Tehsildar, the writ court held that the petitioner would be entitled to "make such construction as it found necessary for protecting his building without damaging or endangering adjacent buildings". 10.

The order passed in WP No. 555 of 2009 was at the instance of the respondent No. 4 for fortifying his own possession and protecting the land possessed by him. The order was not a direction recognizing any right of the present writ petitioner nor was the direction issued for protection of the present writ petitioner's property.

11.

We, therefore find that the submission advanced by the learned counsel for the petitioner that the said direction is binding upon the respondent No. 4 which the writ petitioner could enforce by invoking the writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India to be unsustainable in the eyes of law.

12.

We leave to the writ petitioner to avail the benefits of the order passed by the writ court in the present proceedings as the same has not been assailed by the respondents. 13.

We find no merits in the appeal.

14.

MAT/68/2024 is dismissed.

( Madhuresh Prasad, J. ) ( Supratim Bhattacharya, J. )