Parimal Mondal v. The Andaman And Nicobar Administration And Others

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SUGATO MAJUMDAR WPA No. 928 of 2023 Shri Abhimaan Mondal

Versus

The Andaman & Nicobar Administration and Ors. With WPA No. 930 of 2023 Smt. Anita Mondal

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The Andaman & Nicobar Administration and Ors. With WPA No. 931 of 2023 Miss Anamika Mondal

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The Andaman & Nicobar Administration and Ors. With WPA No. 932 of 2023 Shri Amal Mondal

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The Andaman & Nicobar Administration and Ors. With WPA No. 933 of 2023 Smt. Manju Mondal

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The Andaman & Nicobar Administration and Ors. With WPA No. 934 of 2023 Shri Parimal Mondal

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The Andaman & Nicobar Administration and Ors.

With WPA No. 935 of 2023 Shri Bimal Mondal

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The Andaman & Nicobar Administration and Ors. For the Petitioner : Mr. K.M.B Jayapal For the Respondents : Ms. Babita Das Mr. V.D. Sivabalan Mr. Arun S. Kumar Heard on : August 01, 2024 Judgment on : August 5th, 2024 Sugato Majumdar, J.

1.

The grievances of the present Writ Petitioners are in respect of a piece and parcel of Government Revenue land in survey No. 156/2 admeasuring about 1.33 hectare at village Swadesh Nager, Tehsil Mayabunder, District North and Middle Andaman.

2.

One Suren Mondal (since deceased) was predecessor-ininterest of all the Writ Petitioners. The said Suren Mondal was possessed of and encroached upon government revenue land in Survey No. 156/2 measuring about 1.33 hector, as stated above, as far back as in the year 1977. After encroachment of the said land, jungle and bushes were cleared. The said Suren Mondal settled there with family and cultivated crops. A dwelling house

was also raised there. The said Suren Mondal died in the year 2012.

The present Writ Petitioners are in continuous encroached possession of the said land and dwelled there with respective family members.

3.

There are several schemes for regularization of government revenue land in occupation of the encroachers. Such unauthorized encroachments are regularized on the basis of recommendation of a High Power Committee. Those encroachments which were not regularized, could still be considered as "Left Out Cases". During 2022 relevant official record, to be more particular, recommendation list of regularization of Government Revenue Land within Swadesh Nagar village was obtained on 28.11.2022. It came to the knowledge of the Writ Petitioners that although recommended, encroachment of the subject land by Suren Mondal, since deceased was not regularized and no effective steps were taken by the Administration.

4.

It is pleaded that earlier Tehsildar, Rangat Tehsil initiated a proceeding being case No. TR/6/158/78 against Suren Mondal, since deceased, in order to recover possession from him from Survey No. 156/2, that is the subject land. But the possession was subsequently not disturbed. It is further

pleaded that the petitioners are landless citizen and are entitled to regularization of the subject land being bonafide encroachers. representation dated 10.03.2023 was made to the Administration to this effect. Subsequently, a Coordinate Bench of this Court in WPA No. 575/2023 issued necessary direction to the Administration for consideration of the case, but in terms of the impugned order dated 23.08.2023, the Administration refused to regularize land in favour of the petitioners. Genesis of the instant Writ Petition lies in this compunctious of fact. 5.

Affidavit-in-opposition is filed on behalf of Respondent No. 1, 2 and 3 denying the allegations. It is averred that pursuant to the direction passed in Writ Petition No. 575/2023, notice was issued to the petitioner for appearance before the Deputy Commissioner, North & Middle Andaman District. The petitioner was heard on 28.07.2023. The petitioner was given opportunity to file additional document in support of the claim. On 31.07.2023 the petitioner submitted copy of eviction order but no other documents were filed. A field report was called for from Tehsildar, Mayabunder by the Deputy Commissioner. The Field Report dated 15.07.2023 was filed by the Tehsildar wherefrom it appears that Narayan Mondal since deceased, being father of Suren Mondal was allotted land bearing survey No. 139/1, 140 and 332/4 admeasuring an area of 4.05 hectare under

Colonization Scheme at Swadesh Nagar village, Tehsil Mayabunder.

6.

The present Writ Petitioners are joint recorded co-tenants by way of inheritance. The Scheme of regularization of encroachment had a cut of date of 31.12.1978 to consider unauthorized encroachment of land. It is further stated that neither the petitioners are eligible for regularization nor Suren Mondal's claim for regularization of the subject land was allowed. The scheme of regularization was a onetime scheme and is not in vouge. In nutshell, the Respondent No. 1, 2 and 3 contended that the instant petition is devoid of merit and the claim of the Writ Petitioner is baseless .

7.

Mr. Jayapal, the Learned Counsel appearing for the petitioner at the time of hearing, admitted that the petitioners are not landless persons in as much as they are co-tenants in respect of land allotted to Suren Mondal since deceased. However, he submitted that no land was allotted to Ranjit Mondal, the father of the petitioners.

8.

Referring to Para -5 (v) of the Scheme dated 17th August, 1987, he submitted that even though an encroachment is dead, his legal heirs can maintain an action in law or claim. He

further submitted that the mere fact that he is in lawful occupation of some other land is not a bar on regularization of any encroached land. Mr. Jayapal referred to Para -5 (ii) of the Scheme:- "If the applicant was in authorized possession of any land in the A&N Islands on the date of his alleged encroachment he shall be entitled to relief under this scheme only to such a extent that the total of the area in his authorized possession and if the area for which an application for allotment under this scheme is made does not exceed 200 sq. Meter (in urban area) for house site or 1 hectare ( in non urban area) for agriculture as the case may be. Similarly, if the applicant has encroached on several patches of land at different places not continuous to each other or at different villages he shall be entitled to relief under this scheme to the total of 200 sq. Meter or 350 sq. Meter or 1 hectare as the case may be."

9.

Sum and substance of argument of Mr. Jayapal is that, the impugned order dated 23.08.2023 offends the provisions of the Scheme and is contrary to the same. The impugned order is arbitrary demanding interference of this Court. 10.

Miss Babita Das, the Learned Advocate appearing for the Respondent submitted that Suren Mondal's case of regularization of encroached possession in respect of subject land was turned down long ago by the Administration in view of

the fact that he did not fulfil the criteria prescribed for regularization. No step was taken by said Suren Mondal, since deceased, against the order of refusal. After laps of couple of decades the Writ petitioner again revived the same case once doors of remedies are closed. Considering from that view, according to her the petition is not maintainable at all. It is further submitted that the scheme is closed. Therefore, the petitioners are not entitled to invoke a dead law to get any relief. 11.

After hearing rival submission and perusal of the applications and affidavit-in-opposition, certain things become clear. Annexed documents show that a proceeding was drawn up before the Tehsildar, Rangat, as it then was, against Thanbu Swamy and 16 others bearing No. TR/RC/199/87. The proceeding was drawn up for regularization of encroachment. One of the parties was Suren Mondal whose encroachment of the subject land was under consideration. The report of the Tehsildar in the proceeding dated 13.12.87 was submitted to the Assistant Commissioner, Mayabunder who in connection with this proceeding passed an order dated 17.12.87. Observation contained in the order in respect of Suren Mondal was that, the later had already been allotted land admeasuring hector;

hence his case was not recommended for regularization. This order was subsequently affirmed by the

Deputy Commissioner (Andaman) in terms of order dated 06.08.1988 which was subsequently affirmed and recommended by the High Power Committee. The whole process was completed before the year 1990. No further step was taken against the series of orders or recommendation of the High Power Committee. These documents, annexed to the Writ Petition, contradict the pleading itself. Suren Mondal, since deceased raised a claim of regularization of encroached land being the present land subject matter of the present application. Regularization was refused for ground stated therein after more than 30 years the same dispute cannot be agitated once that had reached its finality. Secondly, Scheme is no longer existence. 12.

There is another aspect of the matter. In order to be entitled to the benefit under the Scheme certain parameters and preconditions are to be complied with. One of such precondition is extent of land holding. The petition is silent on extent of their land holding; rather it is averred that they are landless people. This is glaringly wrong.

13.

After perusal of pleadings, annexures and hearing of both the parties, this Court is of considered opinion that the claims of the Writ Petitioners are not tenable and the Writ Petition is

not maintainable. Accordingly, these petitions stands dismissed without any costs.

14.

The Writ Petition along with pending applications if any, stands disposed of and interim order stands vacated. 15.

WPA/928/2023 along with WPA/930/2023, WPA/931/2023, WPA/932/2023, WPA/933/2023, WPA/934/2023, WPA/935/2023 are accordingly, disposed of. 16.

However, there shall be no order as to costs. 17.

Urgent Xerox certified copy this judgement be supplied to the learned Counsel appearing for the respective parties upon compliance of usual formalities.

(Sugato Majumdar, J.)