G.Narasimham And Others v. The Secretary (Revenue) And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/849/2023 G.Narasimham and others Vs The Secretary (Revenue) and others Mr. Arul Prasanth ... for the petitioner Mr. V.D. Sivabalan ... for the respondent Nos. 1-3 Mr. Prohit Mohan Lall ... for the respondent No. 4.

February 26, 2025 [AKB] Item no. 19 1.

The instant writ application has been preferred under Article 226/227 of the Constitution of India with the following prayers: "(a) Issue a writ in the nature of Certiorari quashing the impugned orders dated 06.07.2023 and 20.07.2023; passed by Secretary Revenue in First Revenue Appeal no. 03 of 2023.

(b) Rule Nisi in terms of Prayer (a) and (b) and after bearing the parties rule be made absolute.

(c) During pendency of the writ application staying the further proceeding arising out of First Revenue appeal No. 03 of 2023, pending before the Secretary (Revenue) till disposal of the writ application.

(d) Cost of the application.

(e) Any other order/orders or further order/orders as your Lordships may deem fit and proper."

2.

Mr. Arul Prasanth, learned counsel appearing on behalf of the petitioner has contended that First Revenue Appeal No. 3 of 2023 was filed in the court of Secretary (Revenue) (Appellate Authority) being aggrieved by and dissatisfied with the order dated 12.04.2022 passed by the Deputy Commissioner in connection with RC No. 205/GIS/2021/DC(SA)/196 in the matter of sub division of land.

3.

Mr. Prasanth has submitted that the issue of jurisdiction in hearing the appeal by the Secretary (Revenue) was raised and Secretary (Revenue) relied on an order dated 13.10.1978 whereby power of the Chief Commissioner has been delegated to the

Secretary in-charge of the revenue department to hear First Revenue Appeal.

4.

Mr. Prasanth has drawn my attention to the provision of Regulations 11, 2 (18) and 2 (19) of Andaman & Nicobar Islands Land Revenue and Land Reform Regulations, 1966 (for short "Regulation 1966") and contended that the respondents were directed to produce notification by the Hon'ble Court vide order dated 28th July, 2023, 17th August, 2023 and 24th August, 2023. 5.

It is further contended on behalf of the petitioner that the respondents could not produce any notification in terms of the provision of the Regulation 1966 referred to herein above. 6.

Accordingly, Mr. Prasanth has concluded his argument by making prayer for setting aside of the orders passed by the Secretary (Revenue) who has no jurisdiction to hear the appeal under any notification in terms of the provision under the Regulation 1966.

7.

In support of his contention he relied on the ratio of the case of Rajendra Agricultural University vs. Ashok Kumar Prasad and others reported in (2010) 1 SCC 730.

8.

In opposition to that, Mr. Arun S. Kumar, learned advocate appearing on behalf of the respondent Nos. 1, 2 and 3, has filed one affidavit-in-opposition on 02.08.2024 annexing one notification dated 13.10.1978 and tried to make this Court understand that the power under Regulation 11 of 1966 Regulation the Secretary (Revenue) was delegated with the power to hear the First Revenue Appeal.

9.

But it is not denied by Mr. Kumar that no document has yet been produce with respect to Official Gazette required under Regulation 2 (18) & 2 (19) of the Regulation 1966. ANALYSIS 10.

Before delving into the merit of this writ application it would be profitable to reproduce the provision of relevant Regulations which runs as follows:

"2. (18) 'notification' means a notification published in the official Gazette;

2. (19) "Official Gazette' means the Andaman and Nicobar Gazette;

11. The Chief Commissioner may, by notification, confer on any person the powers conferred by or under this Regulation on any revenue officer."

11.

It is not disputed by the parties that one notification dated 13.10.1978 was prepared by the Andaman & Nicobar Administration and copy of the same was forwarded to the government press for publishing the same in the Andaman &

Nicobar Islands Gazette in terms of provision of regulation 2(19) of the Regulation 1966.

12.

It is also not disputed that the respondents failed to produce any such Official Gazette before this court while the jurisdiction of Secretary (Revenue) was questioned in the First Revenue Appeal No. 3 of 2023.

13.

Now it is high time to reproduce the relevant decision handed down by Hon'ble Apex Court in Ashok Kumar Prasad (supra) which are as follows:

" The issue involved in these appeals I whether a statute made under Section 36 of the Bihar Agricultural Universities Act, 1987 providing for a benefit to the teaching staff for which assent has been given by the Chancellor can be enforced in the absence of publication in the Official Gazette.

19. As noticed above, several reasons might have contributed to making of a statutory provision providing for publication of all Statutes in the Official Gazette. All those reasons may not apply or exist in regard to making of an individual statute. But once the law lays down that publication of a Stature in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfillment of the requirement to make public the Statute by publication in the Official Gazette becomes mandatory and binding.

24. This court in Bhadrachalam case held that the requirement under Section 11 of the Act relating to publication of the government order in the gazette, was mandatory and that where an enactment requires an act (making a government order) to be done by the Government only in the manner prescribed therein, then non-compliance with the mandatory statutory requirement will make the act (making of a government order) invalid and consequently, the government order cannot be considered as a valid and binding one, nor as a representation held out by the Government, creating any right to seek the benefit of that government order by invoking the principle of promissory estoppel against the Government.

26. In view of the above, it is not possible to accept the contention that the Statute contained in the Notification dated 4-9-1991 came into effect or became enforceable even in the absence of publication in the Official Gazette. The High Court committed an error in holding that the teachers became entitled to the benefit of the Statute relating to the time-bound promotion scheme, when the said Statute made by the Board of Management was assented to by the Chancellor even though it was not published in the gazette. The High Court

also committed an error in observing that the non-publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete Statute, in his Order dated 19-31996." 14.

After going through the law laid down by Hon'ble Apex Court in Ashok Kumar Prasad (supra) I find no difficulty in coming to conclusion that though Andaman & Nicobar Administration issued a notification dated 13.10.1978 which was also communicated to government press for publishing in the Andaman & Nicobar Islands Gazette, but no such gazette has ever been produced before this court for recording a decision in favor of the publication of the notification in terms of provision of Regulation 2 (18) and 2

(19) of the Regulation 1966.

15.

In that view of the matter as well as the principle enunciated in Ashok Kumar Prasad (supra) I find no other alternative but to hold that notification dated 13.10.1978 has not been published in the Official Gazette to give an effect of the notification. 16.

Therefore, Secretary (Revenue) can only assume jurisdiction after formal publication of notification in the Official Gazette, thereby marking the commencement of the procedure depicted in the notification.

17.

As a sequel, all orders passed by the Secretary (Revenue) in connection with First Revenue Appeal No. 3 of 2023 stand quashed.

18.

With the aforesaid observation this writ petition stands disposed of.

19.

Parties are directed to act on the website copy of this order duly downloaded from the official website of this Court. 20.

Urgent photostate certified copy of this order, if applied for, may be supplied to the parties upon compliance of the usual formalities.

(Bibhas Ranjan De, J.)