Renuka Biswas v. The Lt.Governor And Others

THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE AJOY KUMAR MUKHERJEE WPA/838/2023 Smt. Renuka Biswas & others ... Petitioners

Versus

The Ld. Governor and others ... Respondents For the petitioners : Mr. Ananda Halder For the respondent Nos. 1 to 3 : Ms. Babita Das For the respondent Nos. 4 to 6 : Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi Heard on : 14.06.2024 & 19.06.2024 Judgment on : 24.06.2024 AJOY KUMAR MUKHERJEE, J.

The present application has been preferred challenging the allotment of land being survey No. 6/2 at Yeratal-Zig (Phooltala) in favour of the Police Department after setting apart an area of land out of land bearing survey No. 6/1.

Petitioners contention is that predecessor of the petitioners were allotted a land bearing survey No.6 measuring an area of 2.02 hectors situated at Yeratal-Zig village North and Middle Andaman and the licence to occupy the said land was issued to him on 01.08.1974 and thereafter the possession of the aforesaid land was also issued. Said Predecessor of the present petitioners Sumanta Biswas accordingly

developed the said land by raising plantation and also by making construction of house, in the western side of the recorded land adjacent to the main road and he resided therein with his family till his death and thereafter petitioners are continued with the possession of said entire land. It is alleged that suddenly the Tehsildar issued a demarcation notice in the year 2022 for demarcation of land bearing survey No. 6/1 and petitioner further alleged that on perusal of said notice they first time came to know that the revenue department set apart an area of land measuring 0.1250 hectors out of land bearing survey No. 6/1 and has allotted the portion to police department.

It is further alleged by the petitioners that the revenue department failed to produce any document to show how the said portion of the land has been allotted to police department, without any due process of law. In fact the land which was set apart out of land bearing survey No. 6/1 giving new survey No. 6/2 and allotted to the Police Department is used by the petitioners for their residence and there are house of the petitioners where the petitioners are residing along with their family members.

Mr. Halder, learned counsel appearing on behalf of the petitioners submits that at one point of time police personnel suggested that Bush Police establishment will be created in the locality if any person agreed to surrender any land from their holding allotted to them. Though predecessor of petitioner and one Sarat Mondal agreed for the proposal but said proposal had never been

processed as per law because the predecessor of petitioner never submitted any application before the authority under Section 153 (1) of the Andaman & Nicobar Islands Land Revenue and Land Reforms Regulations, 1966 (in short Regulation of 1966) to the Tehsildar intending to surrender land and most importantly they never handed over possession of the land to the Tehsildar for acceptance of the surrender in terms of aforesaid provision of law. Mr.

Halder in this context specifically relied on the wordings of Section 153 and contended that first of all under the said provision the recorded tenant has to make a written application to concerned Tehsildar intending to surrender his holding or any part of land of his holding and not only that at the time of submission of the application, the recorded tenant has to hand over the possession of the land surrendered by him to the concerned Tehsildar and the Tehsildar can accept such surrender only if the possession of land has been handed over to him. But in the present case admittedly the respondent Nos.

13 could not show any piece of document that the petitioner ever surrendered any part of land from their holding and furthermore, it is admitted position that the land in question is with the petitioners till date and it was never handed over to the concerned Tehsildar. Mr.

entire survey No.6, had set apart an area of land measuring 1250 Sq. Mtrs. out of land bearing said survey No. 6, and re-allotment has been made in the name of Bush Police Establishment giving bifurcated survey No. 6/2 and the rest area of land has been re-numbered as Survey No. 6/1.

Mr. Halder strenuously argued that aforesaid alleged surrender of land has been done without initiating any proceeding as prescribed in Section 153 (3) of the Regulation of 1966. Moreover, the concept of establishing Bush Police Station has been abolished long back. In the aforesaid scenario the authority instead of cancellation of the alleged surrender, had illegally corrected the record in the name of the Andaman & Nicobar Police Department, though there was no proposal at any point of time for allotment of such land in their favour. Accordingly, Mr.

Halder argued even if for the sake of argument if it is presumed that at any point of time the land in question was surrendered by the predecessor of the petitioners, which was not done in accordance with Section 153 of the Regulations of 1966, even then the purpose of such allotment for establishment of Bush Police in the disputed land has already been defeated and Administration is liable to return the land to the recorded tenant. He further contended that the document submitted by respondent Nos. 1 to 3 in their affidavitin-opposition at page 12 and 13 were prepared only on 24.06.

in fact the petitioners have come across with such documents when they had enclosed the same with affidavit-in-opposition. However, since the petitioners never handed over possession of the land in question to the concerned Tehsildar and the petitioners are all along in possession of the subject land, the authority should have cancelled the alleged surrender of land and should have recorded it in the joint name of the petitioners by correcting the revenue record. Ms. Babita Das, learned counsel appearing on behalf of the respondents No.

1 to 3 submits that as per local inquiry it reveals that the predecessor of the petitioners surrendered the land in the year 1989 and allotment of land to Police Department was made in the year 1992 and the process started for developing the land allotted to Police Department in the year 1992 and the petitioners were all along aware about the surrendered land and also about the purpose of such surrender. However, the petitioners constructed a residential house on the surrendered portion of land and also planted certain trees which tantamount to illegal and unauthorised possession. In the year 2011 when Police Department proceeded for construction of outpost on their recorded land, and a demarcation of land was taken up, the legal heirs of Late Sumanto Mondal did not allow the police for marking their land.

She further submits that the attached old patta pass book of Late Sumanto Biswas bears clear remarks of surrender of land which is annexed as Annexure P-2 at page 23 of Writ Petition. She further submits that meanwhile in a letter dated 09.06.

have admitted that the land in question has already been surrendered and the signatories of said letter including aforesaid Sumanto Biswas had made a request to return the surrendered land before the concerned authority. She further submits that the present writ application filed only in 2023 without disclosing any cause of such delay and laches and as such writ petition is also hopelessly barred by limitation. The petitioners were served with the notice from the Estate Officer, Rangat, Middle Andaman on 11.04.2022 for eviction due to unauthorised occupation, which is still pending before the Estate Officer.

Ms. Das, specifically reiterated that the petitioners were having the knowledge about the surrender of the land for the establishment of Police outpost, which was agreed by the predecessor of the writ petitioners, and subsequently in the year 1992 it was allotted to the Police Department therefore, at this stage the petitioner cannot have any right over the subject land and the writ petition is liable to be dismissed. In this context, she further submits that the equitable doctrine namely 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution and in this context, she relied upon the judgement of The Municipal Council, Ahmednagar vs. Shah Hyder Beig reported in JT 1999 (10) Sc 336. She further submits that the discretionary relief can be provided to one who has not by his act or conduct given a go-bye to his right and

the equity favour a vigilant rather than an indolent litigant which is the basic tenet of law.

She also argued about the difficulties faced by the Administration in respect of shortage of revenue land for development activities and she further contended that the petitioners are not landless persons which is evident from the entry in record of right but they are trying to mislead the Court on trivial grounds although being aware of the facts and correctness of the matter. Mr. Shatadru Chakraborty, learned counsel appearing on behalf of the respondent Nos. 4-6 adopted the arguments made on behalf of respondent Nos. 1-3.

I have considered submission made by both the parties. At the outset it is required to mention that under Section 153 of the Regulation of 1966, where a tenant wants to surrender his holding or any part thereof he has to make an application in writing to the Tehsildar intimating his intention to do so and by giving possession thereof. In the present context the petitioner heavily emphasised on the issue that the respondents authorities had failed to show that the petitioner or their predecessor had made any written application before the Tehsildar nor they have shown anything that in connection with the said bifurcation of land and or surrender, any proceeding was initiated by the department.

In this context it appears from the noting annexed with the affidavit-in-opposition filed on behalf of the respondent Nos. 1-3 that

proceeding being No. 142/89/558 dated 25.05.1989 was initiated and on the basis of which in the year 1989 the said surrender was accepted. The said proceeding presupposes that there must have been a written application on the basis of which aforesaid proceeding was initiated by the appropriate authority and accordingly after accepting the surrender, the land was allotted to the Police Personnel. Such fact further finds support in the Annexure P-2 of writ application which says Sumanta Biswas surrendered a portion of land measuring 1250 Sq.mtrs. out of survey No. 6 for construction of Bush Police out post vide TR/RC/142/87/558 dated 25.05.1989.

It further appears that in the year 2011 the villagers have lodged a complaint to the Director General of Police, Andaman & Nicobar Islands wherein the aforesaid Sumanta Biswas was a signatory and in the said written complaint, it has been clearly admitted that the land in question had already been surrendered and the villagers including the said Sumanta Biswas made a request for return of the said surrendered land in his favour. It further appears that said Sumanta Biswas died on 21.03.2016 and from the Record of Holding Register it further appears that after the death of Sumanta Biswas the bifurcated land being survey plot No. 6/1 measuring 1.7730 hectors was recorded in the name of legal heirs of Sumanta Biswas in the year 2018 without any objection. Record of Holding Register further records that survey No. 5/2 having an area of 0.

1250 hectors has been allotted in favour of Police department vide DC's order No. 618 dated 25.09.1992 (O.

Sl.No. 1038). All the aforesaid documents clearly shows that the land in question was surrendered before the authority on the basis of appropriate proceeding as stated above and the deceased Sumanta Biswas as well as his legal heirs were all along aware about the aforesaid surrender and they never challenged the aforesaid surrender nor the bifurcation of the land being survey No. 6 and allotment of 6/2 out of 6/1 in favour of Police Department.

It may be that in spite of several attempts and best efforts the concerned Authorities could not get possession of the surrendered land which the petitioners have occupied illegally but for that the petitioners cannot take advantage of their own wrong, calming that since the possession had not been handed over to the Administration, so the surrender had not been acted upon in terms of Section 153 of the Regulation 1966.

In such view of the matter I do not find any merit in the aforesaid contention of the petitioner that land in question was never surrendered by the petitioners predecessor or it had not been acted upon, since the petitioners had resisted in getting possession by the Administration unlawfully and for which the Administration compelled to initiate proceeding under The Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

Having considered the aforesaid facts and circumstances of the case the Writ petition being WPA/838/2023 stands dismissed. No order as to costs.

Urgent Photostat certified copy of this judgement, if applied for, be supplied to the parties upon compliance of all legal formalities. (AJOY KUMAR MUKHERJEE, J.)