Moshim Azad v. The Sub-Divisional Officer

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/995/2023 Moshim Azad Vs.

The Sub-Divisional Officer Mr. Ananda Halder .... for the petitioner Mr. V. D. Sivabalan ... for the respondent February 29, 2024 [SR] Item No.20 This is an application under Article 226 of the Constitution of India praying for setting aside of the impugned order dated 25.07.2023 passed by the respondent, being the Sub Divisional Officer, South Andaman and for direction upon the respondent to consider the application for diversion of the land submitted by the petitioner in respect of the land bearing survey No.162/1/3, area 0.2300 hectares situated at Ograbranj Village under Ferrargunj Tehsil, South Andaman District for diverting the land into house site on payment of premium within a time frame.

Learned counsel appearing on behalf of the petitioner submits as follows. The petitioner's land is fit for diversion. It does not even come within the Port Blair Master Plan. Yet, the petitioner's prayer for diversion of the land was turned down by the impugned order passed by the Sub Divisional Officer, South Andaman mainly on the ground that as per the Port Blair Master Plan the entire erstwhile survey No.162 was categorized as submergible land zone and a comprehensive master plan of the Islands was in the process of being re-drafted. Although there is a provision for appeal challenging the impugned order, this Court can fairly entertain the writ petition

as a question of law is involved as to whether diversion should be allowed in terms of Rule 4(A) of the Rules, 1968. Reliance is placed on a decision of the Apex Court in M/s Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Others reported at 2023 LiveLaw (SC) 70. There it was held that where the controversy is a purely legal one and it does not involve disputed questions of fact, but only question of law, then the same should be decided by the High Court instead of dismissing the writ petition on the ground of availability of an alternative remedy. Learned counsel appearing on behalf of the respondent authority submits as follows.

There is an alternative remedy by way of an appeal before the Deputy Commissioner against the impugned order in terms of Regulation 28 (1)(b) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. The judgment of the Hon'ble Apex Court referred to on behalf of the petitioner would not apply here as the facts are absolutely distinguishable. There is no question of law involved in this writ petition. On the contrary, there are disputed questions of fact about whether the land in question actually comes within the Port Blair Master Plan or not. Even on merits, the Sub Divisional Officer was absolutely right in refusing diversion of land because the land was lying in submergible land zone.

It appears that the Sub Divisional Officer refused diversion as prayed for by the petitioner mainly on the ground that the land in question which fell within the erstwhile survey No.162 was the part of the Port Blair Master Plan and was categorized as submergible land zone. He was of the view that such conversion of low lying land would cause greater harm to the sensitive ecology of the Island and

its natural water system and may also endanger the life and property of the petitioner as well as adjoining occupants/tenants. He also referred to the process of re-drafting of a comprehensive master plan for the Islands in this regard.

In any event, the impugned order is appealable in terms of Regulation 28 (1)(b) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. This petitioner is not about a pure question of law. The writ petition involves disputed questions of fact inasmuch rival contentions are being advanced by the adverse parties about whether the land was lying in the submergible land zone of the Port Blair Master Plan. In view of the above, the writ petition is disposed of by granting liberty to the petitioner to approach the appellate authority in terms of Regulation 28(1)(b) of the Regulations of 1966. If the appeal is field by the petitioner along with an application for condonation of delay, the same may be considered by the appellate authority, in accordance with law.

Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. ( Jay Sengupta, J. )