Harish Kishen v. The Chief Secretary And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR] *** MAT/40/2023 Harish Kishen Vs.

The Chief Secretary and others Mr. KMB Jayapal .. for the appellant Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents January 15, 2024 [SR] Item Nos.7 This appeal has been preferred against an order dated November 22, 2023, by which a set of writ petitions being WPA/105/2020, WPA/103/2020, WPA/104/2020, WPA/106/2020, WPA/71/2021 and WPA/72/2021, were disposed of.

By a common order, His Lordship held that the decision of the authority being an appealable order, should be appealed from. The writ petition was not maintainable, in view of the alternative remedy. The relevant portions of the decision, which has been challenged before us, are quoted below.

"8. It is not in dispute that the impugned orders are appellable and the appellate authority can decide the issues if an appeal is filed against the order passed by the Deputy Commissioner.

9. Mr. Jayapal has also submitted that the writ petitioners may be given opportunity to prefer an appeal by excluding the time spent in this Court.

10. In view of the fact that the writ petitioners have proceeded bonafide, notwithstanding the alternative remedy available to the writ petitioners, in the event the statutory appeal is filed within a period of three weeks from date, the appellate authority shall consider the said appeal on merits and dispose of the appeal as expeditiously as possible preferably within a period of six months from the date of filing of the appeal.

11. The writ petitioners shall, simultaneously while filing the appeal, serve adequate copies of the appeal upon the authorities concerned."

His Lordship further clarified that His Lordship had not gone into the merits of the order impugned by the petitioners therein and left it to the decision of the Appellate Authority. Mr. Jayapal, learned advocate appearing on behalf of the appellant submits that in WPA/103/2020, the appellant had challenged the report prepared by the revenue department dated March 3, 2020. By such report, the right of the appellant was affected. Thus, the order impugned, by which His Lordship had directed the appellant to prefer an appeal should be set aside on the following grounds:- (a) WPA/103/2020 should not have been disposed of on the point of existence of an alternative remedy by way of a statutory appeal. It did not challenge a final order.

(b) Learned Judge ought to have decided whether the report prepared by the department, was in accordance with law or not.

(c) The Deputy Commissioner, South Andaman did not have any authority to decide the issue of occupation in respect of the government land. The said authority was not vested with the power to enter into such arena. Lack of jurisdiction, went to the very root of the report and the writ petition should have been allowed, by quashing such report.

(d) There were erroneous findings in the report, which involved disputed questions of fact. Before conducting the demarcation of revenue land, nonexistent fixed points (Revenue Stones) had been taken for the purpose of survey.

(e) The map enclosed to the report was also contrary to the records.

(f) The report wrongly indicated that the building of the petitioner was prepared over survey no.103, 101/P, whereas the facts remains that the RCC building stood over the land in survey No.94/3, 94/3(P) area 0.06 and 0.05 hectares respectively at Village Nayagaon. (g) The authorities was under the obligation to regularize the excess land of the petitioner in terms of the scheme and the report was thus contrary to the right which had vested in the petitioner, who had been holding excess land, since long.

(h) The report was palpably erroneous and prepared in colourable exercise of power.

According to Mr. Jayapal, the learned Judge while disposing of the other writ petitions arrived at an erroneous conclusion that the writ petition which led to the filing of this appeal, also contained a challenge to the final order of the authority. Thus, liberty was granted to prefer an appeal. Interference of this Bench, in the appeal is necessary. Mr. Shatadru Chakraborty, learned advocate appearing for the Administration/respondents strongly opposes the submissions of Mr. Jayapal and raises the question of maintainability of the appeal.

Mr. Chakraborty, points out to the relevant paragraphs in the order passed by His Lordship, which has been quoted hereinabove and submits that the appellant knowingly accepted the fact that the order impugned was an appealable order and had prayed for leave to prefer an appeal. On such leave, His Lordship was kind enough to observe that the fact that the writ petitioner/appellant along with other writ petitioners were pursuing their remedy before the High Court, should be taken into consideration by the appellate authority while deciding the question of delay in filing the appeal.

Mr.Chakraborty further contends that WPA/103/2020 had been filed challenging the said report, but soon thereafter, the authorities, had passed the final order which was impugned in WPA/72/2021. All the writ petitions were heard together, including WPA/72/2021. The report which

has been challenged in WPA/103/2020 had culminated into the final order passed by the authority. Such order was challenged in WPA/72/2021. Such writ petition was disposed of along with other similar writ petitions, granting liberty to such writ petitioners, one of whom is the appellant herein, to challenge the final order by filing a statutory appeal. This Bench agrees with the submission of the Mr. Chakraborty that the order of His Lordship records that liberty was prayed for by the appellant for leave to file the statutory appeal.

Under such circumstances, we do not find any reason to interfere with the order of His Lordship. The report has merged with the final order, which is an appealable order. The errors in the report can also be raised in the appeal, which shall be decided in accordance with law. If it is the appellant's contention that the order records incorrect submissions, the remedy of the appellant was to approach the said court, which recorded the submission made on behalf of the appellants. The appeal is not maintainable. The appeal is accordingly dismissed. ( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )