Shri.Madhu Prakash v. The Deputy Commissioner And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/661/2024 Shri Madhu Prakash Vs.

The Deputy Commissioner and Others Mr. N. A. Khan ... for the petitioner Mr. V. D. Sivabalan ... for the respondent nos.1-3 Ms. Prabha Kiren ...in person on behalf of respondent no.4 December 09, 2024 [SR] Item no.7 1.

The petitioner is aggrieved by the order of the Sub Divisional Officer allowing the prayer of the private respondent for diversion of a plot of land from agricultural purpose to nonagricultural purpose. 2.

According to the petitioner, the said order was passed without affording any reasonable opportunity of hearing. The land in question is recorded in the joint name of the petitioner and the private respondent who are siblings.

3.

The petitioner preferred an appeal before the Deputy Commissioner, South Andaman which was disposed of on 12.09.2024. The Deputy Commissioner advised the parties to file application for sub-division of the land along with the requisite documents.

4.

A prayer for review of the order of the Deputy Commissioner is allegedly pending before the said authority.

5.

The Sub Divisional Officer has also passed an order dated 11.10.2024 directing the petitioner to comply with the direction passed by the Deputy Commissioner.

6.

The petitioner is aggrieved by the same. It has been submitted that the Sub Divisional Officer acted mechanically without considering the prayer of the petitioner. The Deputy Commissioner, without application of mind advised the parties to apply for sub-division of the land.

7.

It has been submitted that the Deputy Commissioner does not have any advisory power and, accordingly, the advice given by the Deputy Commissioner is bad in law. 8.

The private respondent is represented by her daughter. It has been submitted that the private respondent is residing at the said place by constructing house for nearly 35 years. 9.

As there is scarcity in the place to stay, accordingly a request was made before the authority for diversion of the classification of the land which stood allowed in August, 2019 and the private respondent also paid the penalty that was directed to be paid.

10.

It has been submitted that the order for diversion has been passed keeping in mind the right to live with dignity at the said place where the private respondent is residing for nearly three and half decades.

11.

Upon hearing the parties and on perusal of the materials on record, it appears that an issue has been raised with regard to the quantum of land occupied by the parties. The record of rights evidences that the land is jointly recorded in favour of the petitioner and the private respondent.

12.

The private respondent is residing in the structure construed at the said place for a considerable period of time. On account of continuous use of agricultural land for nonagricultural purpose the character of the land appears to have been changed. After such a long period of time, the said land cannot be taken as agricultural piece of land, that too, after penalty has been received by the authority for unauthorized diversion of the subject land.

13.

However, the quantum of land where the construction has been made and the period for which the private respondent is occupying the land for residential use is disputed. It will not be proper for the writ court to enter into any disputed question of fact.

14.

In view of the above, the Court is not inclined to exercise jurisdiction in the manner. It will be open for the petitioner to approach the competent forum for remedy.

15.

The writ petition stands disposed of. No order as to cost. 16.

Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities. ( Amrita Sinha, J. )