Shri. Mohammed Majeem v. The Andaman And Nicobar Administration
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE MADHURESH PRASAD AND THE HON'BLE JUSTICE SUPRATIM BHATTACHARYA SAT/17/2024 SHRI MOHAMMED MAJEEM ...
APPELLANT VS.
THE ANDAMAN AND NICOBAR ADMINISTRATION AND OTHERS ...
RESPONDENTS For the appellant : Mr. KMB Jayapal Heard on : January 14, 2025 Judgment on : January 17, 2025 MADHURESH PRASAD, J.
1.
The appellant was the plaintiff in the Trial Court. The Trial Court as well as the First Appellate Court has dismissed the Other Suit No.24 of 2012 and the Title Appeal No. 2 of 2019 respectively, filed by the appellant seeking the following reliefs:- a) Decree Declaring Possessory Right, Title, Interest of the Plaintiff over suit land and every part thereof; b) Decree Declaring Defendants Right, Title, Interest over the suit land Stands Extinguished;
c) Decree of permanent Injunction Restraining the defendants, their Men, Servant, Agent to interfere/disturb the peaceful possession of the suit land in any manner whatsoever;
d) Temporary Injunction Restraining the defendants, their Men, Servant, Agent to interfere/disturb the Peaceful Possession of the suit land in any manner whatsoever till disposal of the present suit;
e) Order for Appointment of Commissioner;
f) Cost and Expense incidental in filing the above suit. g) Any other and/or further order as the Hon'ble Court may deem fit and Proper in the fact and circumstance of the case."
2.
It is the plaintiff's case that he encroached upon a Government revenue land bearing survey No. 28/22 having an area of 50 Sq.mtrs at Dignabad (Marine Hill) within Aberdeen village under the Port Blair Tehsil in the district of South Andaman. The plaintiff constructed a dwelling house and claims to be residing therein since the year 1980. 3.
The plaintiff claimed that he had made improvement in the encroached land by clearing bushes and jungle, constructed a dwelling house and also planted fruit bearing tress. He has a family ration card and a identity card issued by the competent authority from which the petitioner's continued possession is evident. By virtue of his possession/occupation of the land since the year 1980. He had acquired possessory right, title and interest. 4.
The plaintiff asserted that the defendants (Government) who are the actual owner of the suit land, thus lost their right over the suit land and that the tenancy of the defendants in respect of the suit land stood extinguish under the law and the plaintiff had thus
acquired exclusive right, title and interest since he is in continued possession over the suit land for about 30 years since 1980. 5.
He claims that he has no other land except the suit land. It is the plaintiff's case that the defendant No. 3 in the suit namely Tehsildar, threatened the plaintiff that if he did not vacate the suit land, he would be removed from the same without due process of law. 6.
The cause of action as per the suit arose on 26.04.2012 when the defendant No. 3 threatened the plaintiff with unlawful dispossession.
7.
The defendants are officials of the Andaman and Nicobar Administration. According to them the suit land is Government land. They have filed a written statement in the suit wherein they have denied plaintiff's claim that he encroached the suit property in the 1980. According to the defendant the encroachment was made recently in the year 2012 itself. The defendants have also denied that the plaintiff has carried out any improvements in the lands by planting trees.
8.
According to them, the family ration card, identity card/s and licence being relied upon by the plaintiff are not valid documents to establish that the plaintiff encroached the Government land in the year 1980 as they have been issued much thereafter.
9.
According to them, the plaintiff has filed the suit with the oblique motive of taking undue advantage of the provisions contained in Regulation 202 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred as to the 1966 Regulation). As per Regulation 38 of the 1966 Regulation the land in question is the Government land. The plaintiff having encroached upon the same in the year 2012 could not claim to have acquired any possessory right title and interest in the Government's land by virtue of his claimed occupation of the land in question under any provision contained in the 1966 Regulation. As per the provisions contained in the 1966 Regulation, the Government continues to be the owner of the suit land.
10.
Based on the case made out by the parties, the Trial Court framed the following issues in the suit:
"1.
Is the suit is maintainable in its present form and law? 2.
Has the plaintiff got any right, title and possessory right over the suit property as claimed by him?
3.
Whether the suit property stands in the name of plaintiff?
4.
Has the plaintiff any cause of action to file this suit? 5.
Is the suit properly valued?
6.
Whether the plaintiff has entitled to get the relief as prayed for?
7.
To what other relief or relief/reliefs, the plaintiff is entitled to?"
11.
The plaintiff relied upon documentary evidences including the following:- (i) Family ration card - Exhibit-1 (ii) Local certificate - Exhibit-2 (iii) Local certificate of Sameena Bibi - Exhibit-3 (iv) Birth certificate of Mohd. Kurman - Exhibit-4 (v) Birth certificate of Shabnam - Exhibit-5 (vi) Birth certificate of Gulshan - Exhibit-6 (vii) Birth certificate of Aysha - Exhibit-7 (viii) An authorization letter - Exhibit-8 12.
Learned counsel for the appellant submits that the concurrent conclusion of both the Trial Court as well as the First Appellate Court are unsustainable. The plaintiff encroached upon the land in the year 1980. Thus in view of the provisions contained in Regulation 162 of the 1966 Regulation, the tenancy of the Government in the suit land in question got extinguished. It is also submitted that the respondent authorities could under no circumstances evict the plaintiff from the suit premises unless they ensure compliance with due process of law.
13.
In order to establish the fact of alleged extinguishment of the defendant tenancy based on claimed long possession of the plaintiff, after encroachment of land in question in the year 1980, the plaintiff adduced the 7 exhibits noted above. Relying upon these documents the plaintiff claims to have acquired a good possessory title over the suit land.
14.
Both the Courts have found the plaintiff's claim to be untenable, by referring the various provisions contained in 1966 Regulation under which the plaintiff was claiming to have perfected his possessory title. The Courts have found that the documents filed by the plaintiff do not corroborate the plaintiff's claim of being continuous possession of the suit land since alleged encroachment in 1980. The ration card (Exhibit-1) has been found to be issued in 2008, local certificates (Exhibits 2 & 3) have been found to be issued in 1993 and in the year 2000. Birth certificate of Mohd. Kurman (Exhibit-4) has been found to be issued in the year 2016 and the birth certificate of Shabnam (Exhibit-5) in the year 2004. Birth certificate of Gulshan (Exhibit-6) and birth certificate of Aysha (Exhibit-7) are issued in the year 1998 and 2008. 15.
The two Courts have thus rightly concluded that these documents/evidences have come into existence decades after the claimed encroachment on 31.01.1980. The evidence, therefore, does not corroborate the claim of the plaintiff of being in possession since 1980. Therefore, there is no basis on which the plaintiff could prove that he is residing on the suit land for last 30 years. 16.
The plaintiff claims that the result of his continuous possession for the last 30 years is the extinguishment of tenancies of the Government which according to the plaintiff was the earlier tenant of land in question.
17.
Thus for establishing such extinguishment of tenancies of Government in the suit land, the plaintiff is first required to show that the Government was the tenant of the land in question under the provisions of the 1966 Regulation. Otherwise the plaintiffappellant would not be in position to claim extinguishment of tenancy/rights of the Government in respect of suit land. 18.
Expression 'tenant' has been defined in Regulation 2 (29) of the 1966 Regulation and read as follows:- "2.
...
(29) "tenant" means the person by whom land revenue is or but for a contract express or implied, would be payable but does not include a sub-tenant"
19.
Another provisions relevant to the claim of the plaintiff regarding extinguishment of tenancy of the Defendant Government is Regulation 38 of the 1966 Regulation which reads as follows:- "38. (1) All land in the Union Territory of the Andaman and Nicobar Islands is vested absolutely in the Government, and save as provided by or under this Regulation, no person shall be deemed to have acquired any property therein or any right to or over the same by occupation, prescription or conveyance or in any other manner what so ever except by a conveyance executed by, or under the authority of, the Government.
(2) The right to all trees, brush-wood, jungles or other natural product wherever growing, expect in so far as the same may be the property of any person, vests in the Government and such trees, brush-wood, jungles or other natural product shall be preserved or disposed of in such manner as may be prescribed keeping in view the interests of the people the area with regard to the user of the natural products.
(3) All such trees which have been planted and reared by, or under the orders, or at the expense, of the Government and all
trees which have been planted and reared at the expense of any local authority by the side of any road belonging to the Government, shall vest in the Government.
(4) Where a dispute arises in respect of any right under sub- section (1) or sub-section (2) or sub-section (3) such dispute shall be decided by the Deputy Commissioner.
(5) Any person aggrieved by any order passed under subsection (4) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order.
(6) Where a civil suit has been instituted under sub-section
(5) against any order, such order shall not be subject to appeal or revision under this Regulation."
20.
From a plain reading of Regulation 38, it is clear that all land in the Union Territory of the Andaman and Nicobar Islands is absolutely vested in the Government and that the only means of acquiring any right in Government land is by way of a conveyance executed by or under the authority of the Government. 21.
It is not the plaintiff case that any conveyance has been executed in his favour with respect of the suit land. Thus in terms of the Regulation 38 of the 1966 Regulation there is no basis for the plaintiff to claim that he acquired any right, title and interest over the suit land.
22.
Insofar as the plaintiff's claim that he acquired right, title and interest on account of the extinguishment of earlier tenancies of the State, we find that the respondent is not a tenant, as Government does not come within the definition of tenant under Regulation 2 (29) of the 1966 Regulation as extracted above. On the contrary it is obvious from Regulation 38 of the 1966 Regulation, that all lands in
the Islands are vested in the Government, and therefore it is the Government which continues to be owner of all lands. Therefore, there is no scope whatsoever to claim extinguishment of tenancy of the respondent. As per the Regulation 2(29), read with Regulation 38 of the 1966 Regulation, the respondent/Government is not a person/tenant, and in fact all lands of the islands are vested in the Government.
23.
There is also no provision under the 1966 Regulation under which the State (Government) may pay any land revenue. Therefore by no stretch of imagination the respondent (Government) can be called a tenant within the meaning of Regulation 2 (29) of the 1966 Regulation.
24.
Since the extinguishment of tenancy is claimed under Regulation 162 of the 1966 Regulation, we also consider it apposite to reproduce Regulation 162 of the 1966 Regulation, which reads as follows:- "162. The interest of tenant in his holding or any part thereof shall be extinguished.
(a) when he dies leaving no heir entitled to his interest under this Regulation; or (b) when he surrenders his holding or such part; or (c) when the holding or such part has been transferred, letout or used in contravention of the provisions of this Regulation; or (d) when the land comprised in the holding has been acquired under any law for the time being in force, relating to acquisition of land; or-
(e) When he has been ejected under this Regulation; or (f) when he has been deprived of possession and his right to recover possession is barred by limitation ; or (g) when his holding is declared as abandoned." 25.
The scope and object of Regulation 162 of the 1966 Regulation, is clear from a plain reading of the provision which speaks of extinguishment of tenancies of a "tenant" in his holding or any part thereof subject to the conditions contained in sub-regulation (a) to (g) of the Regulation 162 of the 1966 Regulation. The issue whether the factual conditions exist or not would assume relevance only if the respondents/Government could be considered as a tenant under Regulation 2(29). We have already considered the two provisions, namely Regulations 2(29) and (38) of the 1966 Regulation, based on which we have held that the Government is not a tenant, but the owner of all lands in the Islands. Therefore we have no hesitation in holding the reliance placed on Regulation 162 to contend that by virtue of extinguishment of tenancy of the Government, the plaintiff acquired any possessory right, title or interest in the Government lands, is devoid of any substance.
26.
We find that the First Appellate Court has further delved into the issue with respect of the plaintiff's claim of extinguishment of tenancies of Government by referring to various class of tenants as per Regulations 142, 143, 144 and 145 of the 1966 Regulation. These provisions categorize 4 classes of tenants who have acquired their
tenancy under the provisions of Andaman and Nicobar Islands (Land Tenure) Regulation, 1926 or under the 1966 Regulation. Under these provisions either of the four categories of the tenancy could have been acquired only by a "person" under Regulations 142, 143, 144,& 145, such as a person who had acquired a right to occupancy, was nonoccupancy tenant and acquired tenancy/occupancy rights as a licencee, or a grantee, and not by the Government which is the owner of all lands in the islands as per 1966 Regualtions. 27.
Under the scheme of 1966 Regulation there is no concept of the Government being a tenant, the submission of the learned counsel of the appellant, in this regard are in fact in conflict with the clear specific mandate of Regulation 38 of the 1966 Regulation according to which all the lands in the Islands are vested absolutely in the Government.
28.
We therefore find that there is no factual or legal premise based on which the plaintiff could claim extinguishment of tenancy right of the Government in the suit land so as to claim a corresponding and consequential right of having acquired possessory title over land in question. The plaintiff/appellant has failed to prove his right as claimed in the plaint. Both the Trial Court as well as the First Appellate Court have thus rightly concluded that the plaintiff has no right, title and interest and has rightly dismissed the suit, and the appeal.
29.
We find no infirmity in the judgment and decree dated 30.01.2019 passed by the learned Civil Judge, Junior Division-I in Title Suit No. 24 of 2012 and the judgment dated 28.11.2024 passed by the learned District Judge in Title Appeal No. 02 of 2019 being the First Appellate Court.
30.
The concurrent finds of both the Courts require no interference.
31.
We find that no question of law arises in the present second appeal.
32.
The second appeal being SAT/17/2024 is dismissed. ( Madhuresh Prasad, J. ) I agree ( Supratim Bhattacharya, J. )